429 U.S. 930
State of TENNESSEE
Supreme Court of the United States
November 1, 1976
On petition for writ of certiorari to the Tennessee Court of Criminal Appeals, Eastern Division.
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 after a jury trial in Sullivan County Criminal Court, Tenn., of exhibiting two allegedly obscene motion pictures in violation of Tenn.Code Ann. s 39-3013(A), which provides in pertinent part
As used in that section,
The Tennessee Court of Criminal Appeals affirmed the conviction and the Tennessee Supreme Court, which in an earlier case held the motion pictures involved to be obscene within the meaning of the statute, Taylor v. State ex rel. Kirkpatrick, 529 S.W.2d 692, 699 (Tenn.1975), refused review.
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, Tenn.Code Ann. 39-3013(A) 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, and remand the case for further proceedings not inconsistent with my dissent in Paris Adult Theatre I, supra. See Wasserman v. Municipal Court of Alhambra Judicial District, 413 U.S. 911 (1973) (Brennan, J., dissenting). In that circumstance, I have no occasion to consider whether the other questions presented in this case merits plenary review. See Heller v. New York, 413 U.S. 494, 495 , 756 (1973) ( Brennan, J., dissenting).