NISSINOFF v. CALIFORNIA(1974)
On petition for writ of certiorari to the Appellate Department of the Superior Court of California, County of Alameda.
Petition for writ of certiorari granted, judgment vacated and case remanded to the Appellate Department of the Superior Court of California, County of Alameda, for further consideration in light of Miller v. California, 413 U.S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); Kaplan v. California, 413 U.S. 115 (1973); United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973); United States v. Orito, 413 U.S. 139 (1973); Heller v. New York, 413 U.S. 483 , S.Ct. 2789, 37 L. Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496 d 757 (1973); and Alexander v. Virginia, 413 U.S. 836 (1973).
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
Petitioners were convicted on charges of exhibiting allegedly obscene motion pictures in violation of the California Penal Code 311.2(a), which provides as follows:
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) (dissenting opinion of Brennan, J.). It is clear that, tested by that constitutional standard, 311.2(a) 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 grant certiorari, vacate the judgment of the Appellate Department of the Superior Court of the State of California, in and for the County of Alameda, and remand for further proceedings not inconsistent with my Paris Adult dissent.