Brown v. United States , 94 S. Ct. 3215 ( 1974 )

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 Eastern District of Virginia of transporting allegedly obscene materials by common carrier in violation of 18 U. S. C. § 1462, which provides in pertinent part as follows:

“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 ...

“Shall be fined not more than $5,000 or imprisoned not more than five years, or both . . . .”

The Court of Appeals for the Fourth Circuit affirmed in an unreported opinion. This Court vacated the judgment and remanded the case to the Court of Appeals for further consideration in light of Miller v. California, 413 U. S. 15 (1973), and companion cases. 413 U. S. 912. The Court of Appeals again affirmed the conviction.

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 “[wjhatever 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, supra, at 47, I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Fourth 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 (1973) (Brennan, J., dissenting).

Moreover, on the basis of the Court’s own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari is improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioner did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioner has thus never been provided the independent judicial review to which the Court held him entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review.

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, ante, p. 141, I believe that, consistent with the Due Process Clause, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards.

* Although, four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits.