418 U.S. 949 (1974)

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U.S. Supreme Court

J-R DISTRIBUTORS, INC. v. WASHINGTON , 418 U.S. 949 (1974)

418 U.S. 949

No. 73-937.

Supreme Court of the United States

July 25, 1974

On petition for writ of certiorari to the Supreme Court of washington.

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.

Opinion of Mr. Justice WHITE.

In this case and in 13 other cases involving issues dealing with obscenity, Mr. Justice BRENNAN complains that by denying certiorari or dismissing an appeal, the Court has failed to pass independently on the obscenity of the materials involved. This is a task which he has insisted, see Jacobellis v. Ohio, 378 U.S. 184, 187-190 (1964), that the Court must perform under the approach to obscenity which he espoused and explicated for the Court in Roth v. United States, 354 U.S. 476 (1957), which he refined for himself and others in Jacobellis v. Ohio, supra; Memoirs v. Massachusetts, 383 U.S. 413 (1966); Ginzburg v. United States, 383 U.S. 463 (1966); Mishkin v. New York, 383 U.S. 502 (1966); Ginsberg v. New York, 390 U.S. 629 (1968), but which he has now repudiated.

Page 418 U.S. 949 , 950

Brother BRENNAN's complaints are wide of the mark. Obscenity cases, like others, are not immune from the standards generally governing the exercise of our appellate jurisdiction. The Court has never indicated that plenary review is mandatory in every case dealing with the issue of obscenity.

In five of these cases,1 the issue whether the materials involved are obscene was not presented to this Court and the publications themselves were not lodged here. Rule 23(1)(c) of this Court's rules provides that '[ o]nly the questions set forth in the petition or fairly comprised therein will be considered by the court.' Rule 15(1)(c) with respect to appeals is to the identical effect. I suggest that we are entitled to follow our own rules. See R. Stern and E. Gressman, Supreme Court Practice 6.37, at 297- 299 (4th ed. 1969).

In six other cases,2 the issue of obscenity vel non is among the questions presented here, but the materials themselves have not been filed with this Court. While our rules permit parties to dispense with filing the entire record at the petition for certiorari stage, a petitioner is completely free at that time to file all or any part of the record he deems necessary or desirable to present clearly the issues he wants reviewed. Indeed, our Rule 23(4) states that '[t]he failure of a petitioner to present with accuracy, brevity, and clearness whatever is essential to a ready and adequate understanding of the points requiring consideration will be a sufficient reason for denying his petition.' Had the petitioner in any of [418 U.S. 949 , 951]

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