Trinkler v. Alabama

Me. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join,

dissenting.

Petitioner was convicted on charges of distributing allegedly obscene materials in violation of Title 14, §374 (4)(1), of the Code of Alabama of 1940, as amended, which provides:

“Every person who, with knowledge of its contents, sends or causes to be sent, or brings or causes to be brought, into this state for sale or commercial distribution,' or in this state prepares, sells, exhibits or commercially distributes, or gives away or offers to give away, or has in his possession with intent to sell or commercially distribute, or to give away or offer to give away, any obscene printed or written matter or material, other than mailable matter, or any mailable matter known by such person to have been judicially found to be obscene under this chapter, shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than one year, and may be fined not more than two thousand dollars for each offense, or be both so imprisoned and fined in the discretion of the court.” Ala. Code Tit. 14, § 374 (4) (1) (Cum. Supp. 1971).

It is my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to uncon-senting adults, the First and Fourteenth Amendments *961prohibit 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, § 374 (4) 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, vacate the judgment of the Alabama Court of Criminal Appeals, and remand for further proceedings not inconsistent with my Paris Adult Theatre I dissent. 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 (1973) (Brennan, J., dissenting).