On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia 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 was convicted in the United States District Court for the District of Columbia of transporting obscene films in interstate commerce in violation of 18 U.S.C. 1462 and of possessing such films with intent to distribute in violation of 22 D.C.Code 2001. The Court of Appeals for the District of Columbia Circuit affirmed. 502 F.2d 391 (1974). 18 U.S.C. 1462 provides in pertinent part:
22 D.C.Code 2001 provides in pertinent part:
It is my view that 'at least in the absence of distribution to juveniles or obstrusive 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, 18 U.S.C. 1462 and 22 D.C.Code 2001 are constitutionally overbroad and therefore facially invalid. 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 District of Columbia Court of Appeals 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, 2796 (1973) ( 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 in Hamling v. United States, 418 U.S. 87, 141 (1974), I believe that, consistent with the Due Process Clause, petitioner must be given an opportunity to have his case decided on, and introduce evidence relevant to, the legal standard upon which his convictions have ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and [419 U.S. 1127 , 1130] remand for a determination whether petitioner should be afforded a new trial under local community standards.
Mr. Justice DOUGLAS, dissenting.
It is occasionally suggested that the First Amendment, applied to the States through the Fourteenth, Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, has a more restricted meaning than when applied to the Federal Government. See Roth v. United States, 354 U.S. 476 , 500-503 (Justice Harlan, concurring). That view has never prevailed and is not at issue in this case as the prohibition of the First Amendment against abridgment of speech and press precisely fits this federal prosecution and, in my view, should bar it. That is the view I expressed in Roth, supra, 508-514 (dissenting), a position from which I have not retreated.
[ Footnote * ] Although four of us would grant and reverse, the Justices who join this opinion do not insist that the case be decided on the merits.