FRIEDMAN v. U.S. 421 U.S. 1004 (1975)

Rehearing Denied Oct. 6, 1975.

See 423 U.S. 885 .

On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.

Petitioner Sooner State News Agency was convicted in the United States District Court for the Eastern District of Arkansas of transporting obscene literature through the United States mail in violation of 18 U.S.C . 1465, which provides in pertinent part as follows:

'Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph [421 U.S. 1004 , 1005]   recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.'

Petitioners Friedman, Mitchum, Fishman, and Boyd were convicted in the same District Court of conspiracy to violate 18 U.S.C. 1465. 18 U.S. C. 371. The Court of Appeals for the Eighth Circuit affirmed all of petitioners' convictions. 506 F.2d 511 (1974).

I adhere to my dissent in United States v. Orito, 413 U.S. 139, 147 (1973), in which, speaking of 18 U.S.C. 1462, which is similar in scope to 1465, I expressed the view that '[w] hatever the extent of the Federal Government's power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional on its face.' Id., at 147-148, 93 S. Ct. 2674. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47 (1973), I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Eighth Circuit was rendered after Orito, reverse.

In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U.S. 483, 494 (1973) (Brennan, J., dissenting).

Finally, it does not appear from the petition and response that the obscenity of the disputed material was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, 418 U.S. 87, 141 (1974), I believe that, consistent with the Due Process Clause, petitioners must be given an opportunity to have their cases decided on, and introduce evidence relevant to, the legal standard upon which their [421 U.S. 1004 , 1006]   convictions have ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioners should be afforded a new trial under local community standards.

Mr. Justice DOUGLAS took no part in the consideration or decision of this petition.