AMERICAN THEATRE CORPORATION v. US, 430 U.S. 938 (1977)

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.

Petitioners were convicted in the United States District Court for the District of Nebraska of knowingly transporting by common carrier in interstate commerce two obscene films [430 U.S. 938 , 939]   in violation of 18 U.S.C. 1462. The Court of Appeals for the Eighth Circuit affirmed. 526 F.2d 48.

Title 18 U.S.C. 1462 provides in pertinent part:

"Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce

"(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; . . .

"Shall be fined no more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter."

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, 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. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47 d 419 (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 by petitioners merit plenary review. See Heller v. New York, 413 U.S. 483, 495 (1974) ( BRENNAN, J., dissenting).

Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent [430 U.S. 938 , 940]   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 case decided on, and introduce evidence relevant to, the legal standard upon which their 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.