CHEROKEE NEWS & ARCADE, INC. v. OKLAHOMA(1973)
On petition for writ of certiorari to the Court of Criminal Appeals of Oklahoma.
Petition for writ of certiorari granted, judgment vacated, and case remanded to the Court of Criminal Appeals of Oklahoma for further consideration in light of Miller v. California, 413 U.S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 , 93 S. Ct. 2628 (1973); Kaplan v. California, 413 U.S. 115 , 93 S. Ct. 2680 (1973); United States v. 12 200-ft. Reels of Super 8 mm. Film, 413 U.S. 123 (1973); United States v. Orito, 413 U.S. 139 (1973); Heller v. New York, 413 U.S. 483 (1973); Roaden v. Kentucky, 413 U.S. 496 (1973); and Alexander v. Virginia, 413 U.S. 836 ( 1973). [414 U.S. 967 , 968]
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
Petitioners were convicted on charges of selling allegedly obscene materials in violation of 21 Oklahoma Statutes 1971, 1040.8 and 1040.13. Section 1040.8, among other things, makes it 'unlawful for any person to knowingly . . . sell . . . or otherwise distribute . . . any obscene book, magazine, . . . or other article which is obscene, filthy, indecent, lascivious, lewd or unfit, as defined in Title 21 of the Oklahoma Statutes 1040.12 . . ..' 1040.13, provides in relevant part that 'Every person who with knowledge of its contents, . . . sells, . . . any obscene, lewd, lascivious, filthy or indecent article . . . is guilty of a misdemeanor . . ."
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 this allegedly 'obscene' contents.' Paris Adult Theatre I v. Slaton, 413 U.S. 49, 113 (1973) (dissenting opinion). It is clear that, tested by that constitutional standard, 1040.8 and 1040. 13 are constitutionally overbroad and therefore invalid on their faces. For the reasons stated in my dissenting opinion in Miller v. California, 413 U.S. 15, 47 (1973), I would therefore grant certiorari, vacate the judgment of the Oklahoma Court of Criminal Appeals and remand for further proceedings not inconsistent with my Paris Adult dissent. In that circumstance, I have no occasion to consider at this time whether other questions presented in the petition merit plenary review. See Heller v. [414 U.S. 967 , 969] New York, 413 U.S. 483, 494 (1973) (dissent of Brennan, J.).
Mr. Justice DOUGLAS, being of the view that state obscenity regulation is prohibited by the Fourteenth and First Amendments (see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70 ( Douglas, J., dissenting)), would grant certiorari and reverse the judgments of conviction.