(dissenting) .
I am not happy about the court’s opinion. In the first place, the Court majority in Miller evinced no compunction about convicting Miller by a definition of obscenity that was not in effect at the time of his publication. Having in mind the mass of uncertainties in this field, see my prior dissent, I can see why the Court felt that the First Amendment did not bar an adverse change in the rules. If not for Miller, why for Palladino? This case does not fit the normal situation where the courts have had to determine whether constitutional principles are to be applied retroactively. With all respect, I do not find the Fifth Circuit’s decision in United States v. Thevis persuasive. The Court sent this case back to determine “in light of Miller, . . . ” * and I would apply the Miller definition, not Roth’s or Memoirs’.
By the same token, we are not required by past decisions to give the defendant the benefit of national standards. Today, as a modest observer, I believe that national standards is a many-headed hydra, only ingenuously to be spoken of as within the competence of any expert short of Hercules, and beyond the mastery of any juror.
It is true that the same might be said to a considerable degree as to the standard of an area of the size and variety of the state of California — indeed it has been suggested that the objection may prevail even in a single county. Hence, we cannot pitch our tent upon a firm bed of logic. Nevertheless, I would prefer partial practicality to what, with all due respect, I can only regard as a delusion. I respectfully dissent. Since my dissent is inoperative, I need not consider further what would be its effect in the case at bar.
The Fifth Circuit’s First Amendment ruling was a bare assertion, and got off, I suggest, somewhat on the wrong foot by misquoting the mandate as remanding for further proceedings “not inconsistent with” Miller, etc., rather than “in light of.”