Nissinoff v. California

App. Dept., Super. Ct. Cal., County of Alameda. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Miller v. California, 413 U. S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-Ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973); Heller v. New York, 413 U. S. 483 (1973); Roaden v. Kentucky, 413 U. S. 496 (1973); and Alexander v. Virginia, 413 U. S. 836 (1973).

Mr. Justice Douglas, being of the view that state obscenity regulation is prohibited by the Fourteenth and First Amendments (see Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 70 (Douglas, J., dissenting)), would grant certiorari and reverse the judgment of conviction.

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

dissenting.

Petitioners were convicted on charges of exhibiting obscene motion pictures in violation of the California Penal Code § 311.2 (a) (1970), which provides as follows:

“Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, or prints, with intent to distribute or to exhibit to others, or who offers to

distribute, distributes, or exhibits to others, any obscene matter is guilty of a misdemeanor.”

It is my view that, "at least in the absence 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 (a) is unconstitutionally 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 Appellate Department of the Superior Court of the State of California, in and for the County of Alameda, and remand for further proceedings not inconsistent with my Paris Adult Theatre I dissent.