419 U.S. 1073
95 S.Ct. 664
42 L.Ed.2d 671
Thomas A. AYRE
v.
State of MARYLAND.
No. 73-2008.
Supreme Court of the United States
December 16, 1974
On petition for writ of certiorari to the Criminal Court of Baltimore City, Maryland.
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 Criminal Court of Baltimore City of possession of obscene materials with intent to sell in violation of Art. 27, § 418 of the Maryland Code. Section 418 provides in pertinent part as follows: 'Every person who . . . has in his possession with intent to distribute . . . any obsence matter is guilty of a misdemeanor.' The Maryland courts have defined the term 'obscene' by adopting the test set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See Ebert v. Maryland State Board of Censors, 19 Md.App. 300, 313 A.2d 536 (1973). The Maryland Court of Special Appeals and the Maryland Court of Appeals denied certiorari.
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, 508-514, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Miller v. California, 413 U.S. 15, 42-47, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70-73, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), would grant certiorari and summarily reverse.
It is my view that 'at least in the absence of distribution to juveniles or obstrusive 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, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting).
It is clear that, tested by that constitutional standard, § 418 of the Maryland Code 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, 37 L.Ed.2d 419 (1973), I would therefore grant certiorari, and, since the judgment of the Maryland 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. 494, 495, 93 S.Ct. 2796, 37 L.Ed.2d 756 (1973) (Brennan, J., dissenting).
Although four of us would grant and reverse, the Justices who join this opinion do not insist that the case be decided on the merits.