418 U.S. 937 (1974)

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U.S. Supreme Court

ENSKAT v. CALIFORNIA , 418 U.S. 937 (1974)

418 U.S. 937

Werner Ernest ENSKAT
No. 73-1136.

Supreme Court of the United States

July 25, 1974

On petition for writ of certiorari to the Court of Appeal of California for the Second Appellate District.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70-73 (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 Superior Court of California, County of Los Angeles, of exhibiting an allegedly obscene motion picture in violation of California Penal Code 311.2, which provides in pertinent part as follows:

    'Every person who knowingly sends or . . . possesses . . . with intent to distribute or to exhibit to others, . . . any obscene matter is guilty of a misdemeanor.'
    'Obscene matter' is defined in 311(a), which provides in pertinent part as follows:
    "Obscene matter' means matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i. e., shameful or morbid interest in nudity,

    Page 418 U.S. 937 , 938

    sex or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.'

Petitioner's appeal was certified by the Appellate Department of the Superior Court to the Court of Appeals which, after rehearing, affirmed. The California Supremme Court denied certiorari.

It is my view that 'at least in the absence of distribution to juveniles to obtrusive exposure to unconsenting adults, the First and Fourth 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, 311.2, as it incorporates the definition of 'obscene matter' of 311, 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 California Court of Appeal 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), [418 U.S. 937 , 939]

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