KAPLAN v. U.S.
418 U.S. 942 (1974)

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U.S. Supreme Court

KAPLAN v. U.S. , 418 U.S. 942 (1974)

418 U.S. 942

James Jay KAPLAN
v.
UNITED STATES.
No. 73-1260.

Supreme Court of the United States

July 25, 1974

On petition for writ of certiorari to the District of Columbia Court of Appeals.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130-138 (1973) (Douglas, J., dissenting)), would grant certiorari and reverse the judgment of conviction.

Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.

Petitioner was convicted in the District of Columbia Court of General Sessions of presenting an obscene film in violation of D.C.Code 22-2001( a)(1)(B), which provides in pertinent part: 'It shall be unlawful in the District of Columbia for a person knowingly . . . to present . . . any obscene, indecent, or filthy play, dance, motion picture, or other performance.' The District of Columbia Court of Appeals affirmed, and this Court granted certiorari, vacated the judgment, and remanded the case for further consideration in light of

Page 418 U.S. 942 , 943

Miller v. California, 413 U.S. 15 (1973), and companion cases. The Court of Appeals again affirmed.

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 thier 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, 2001(a)(1)( B) is constitutionally 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, 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 (1973) (Brennan, J., dissenting).

Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, 418 U.S. 153 (1974), its denial of certiorari is improper. As permitted by Supreme Court Rule 21(1), 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 as- [418 U.S. 942 , 944]


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