419 U.S. 926 (1974)

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U.S. Supreme Court

TOBALINA v. CALIFORNIA , 419 U.S. 926 (1974)

419 U.S. 926

No. 73-1764.

Supreme Court of the United States

October 21, 1974

On petition for writ of certiorari to Appellate Department of the Superior Court of California for the County of Los Angeles.

The petition for a writ of certiorari is denied.

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

Petitioner was convicted in the Municipal Court of Los Angeles of exhibiting an allegedly obscene motion picture

Page 419 U.S. 926 , 927

in violation of California Penal Code 311.2(a)(1970) which provides in pertinent part as follows:

    'Every person who knowingly . . . exhibits to others, any obscene matter is guilty of a misdemeanor.'

As used in 311.2:

    "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., a shameful or morbid interest in nudity, 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.' 311(a).

On appeal, the Appellate Department of the Superior Court of California for the County of Los Angeles affirmed the conviction. Certification to the Court of Appeal was sought and denied. This Court then granted certiorari, vacated the judgment of the Appellate Department, and remanded for consideration in light of Miller v. California, 413 U.S. 15 (1973), and companion cases. On remand, the Appellate Department again affirmed the conviction.

Mr. Justice DOUGLAS, being of the view that any state or federal ban on or regulation of obscenity is prohibited by the Constitution. Roth v. United States, 354 U.S. 476, 508; Miller v. California, 413 U.S. 15, 43-48; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70-73, would grant certiorari and summarily reverse.

It is may view that 'at least in the obsence 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, 311.2, as it incorporates the definition of 'obscene matter' in 311(a), is constitutionally over- [419 U.S. 926 , 928]

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