S. S. & W., INC. v. KANSAS CITY, MISSOURI, 421 U.S. 925 (1975)

The appeal is dismissed for want of a substantial federal question.

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

Appellants, operators of adult theaters and book stores, commenced this action in the Circuit Court of Missouri, Sixteenth Judicial District, for a declaratory judgment that Kansas City's obscenity ordinance, 26. 141 to 26.144, is unconstitutional. Section 26.142 provides in pertinent part as follows:

'No person shall knowingly:

'(a) Sell, deliver or provide, or offer or agree to sell, deliver or provide, any obscene writing, picture, record or other representation or embodiment of the obscene; or

* * * * *

'(c) Publish, exhibit or otherwise make available any obscene material; or

'(d) Possess any obscene material for the purpose of sale or other commercial dissemination . . ..'

'Obscene' is defined in 26.141, which provides:

'Material is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest, in nudity, sex, or excretion, and if in addition it goes beyond customary limits of candor in describing or representing such matters.'

The Circuit Court found the ordinance valid and denied relief. The Supreme Court of Missouri affirmed. [421 U.S. 925 , 926]   It is my view that 'at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents.' Paris Adult Theatre I v. Slaton, 413 U.S. 49, 113 (1973) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, 26.142, as it incorporates the definition of 'obscene' in 26.141, is unconstitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47 (1973), I would therefore not probable jurisdiction, and, since the judgment of the Supreme Court of Missouri was rendered after Miller, 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 , 494-495 (1973) (Brennan, J., dissenting).

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

Joseph J. REY, Sr., appellant, v. TEXAS. No. 74-1070. April 21, 1975 The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. [95SCt1651,421US926,44LEd2d83] Hyman COHEN, appellant, v. Henry MARSH et al. No. 74-5898. April 21, 1975 Motion of appellant for leave to proceed in forma pauperis granted. Judgment vacated and case remanded to the United States District Court for the District of Connecticut for consideration of the question of mootness. Mr. Justice DOUGLAS took no part in the consideration or decision of this motion and appeal. [ 95SCt1651,421US926,44LEd2d 84] Richard M. HARDEN, etc., petitioner, v. Ruth PARKS, etc. No. 74-877. April 21, 1975 On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. Petition for writ of certiorari granted, judgment vacated and case remanded to the Court of Appeals for further consideration in light of Burns v. Alcala, 420 U.S. 575 (1975). [ 95SCt1651,421US926,44LEd2d84]