419 U.S. 1004
95 S.Ct. 326
42 L.Ed.2d 281
Gary VAN GUNDY and Rivergate News Agency, Inc.
Supreme Court of the United States
November 11, 1974
Rehearing Denied Jan. 13, 1975.
See 419 U.S. 1116, 95 S.Ct. 797.
On petition for writ of certiorari to the United States Court of Appeals for the Fifth 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 United States District Court for the Eastern District of Louisiana of receiving allegedly obscene material which had been shipped by common carrier in interstate commerce in violation of 18 U.S.C. § 1462, which provides in pertinent part:
'Whoever . . . 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; or
* * * * *
'Whoever knowingly takes from such express company or other common carrier any matter or thing the carriage of which is herein made unlawful——
'Shall be fined not more than $5,000 or imprisoned not more than five years, or both . . ..'
The Court of Appeals for the Fifth Circuit affirmed, 490 F.2d 76 (CA5 1974).
I adhere to my dissent in United States v. Orito, 413 U.S. 139, 147, 93 S.Ct. 2674, 37 L.Ed.2d 513 (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, 93 S.Ct. 2674. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Fifth Circuit was rendered after Orito, 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, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973) (Brennan, J., dissenting).
Mr. Justice DOUGLAS, being of the view that any state or federal ban on, or regulation of, obscenity is prohibited by the Constitution, Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Miller v. California, 413 U.S. 15, 43-48, 93 S.Ct. 2607, 37 L.Ed.2d 419; Paris Aduit Theatre I v. Slaton, 413 U.S. 49, 70-73, 93 S.Ct. 2628, 37 L.Ed.2d 446, would grant certiorari and summarily reverse.
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, 94 S.Ct. 2887, 41 L.Ed.2d 590 (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.
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.