418 U.S. 944 (1974)

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U.S. Supreme Court

BUCKLEY v. NEW YORK. , 418 U.S. 944 (1974)

418 U.S. 944

Jim BUCKLEY and Al Goldstein
State of NEW YORK.
No. 73-1605.

Supreme Court of the United States

July 25, 1974

On petition for writ of certiorari to the Court of Appeals of New york.

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 judgments of conviction.

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

Petitioners were convicted in the Criminal Court of the City of New York of promotion of obscene material in violation of New York Penal Law 235.05, which provides in pertinent part:

    'A person is guilty of obscenity in the second degree when, knowing its content and character, he:

    Page 418 U.S. 944 , 945

      '1. Promotes, or possesses with intent to promote, any obscene material.

* * * * *

    'Obscenity in the second degree is a class A misdemeanor.'
    'Obscene' is defined in 235.00, which provides:
    'Any material or performance is 'obscene' if (a) considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and (b) it goes substantially beyond customary limits of candor in describing or representing such matters, and (c) it is utterly without redeeming social value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.'

The Appellate Term affirmed the convictions, and the New York Court of Appeals affirmed by divided court.

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 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, 235.05 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, 93 S.Ct 2607 (1973), I would therefore grant certiorari, and, since the judgment of the New York Court of Appeals was rendered [418 U.S. 944 , 946]

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