
    No. 73-1136.
    Enskat v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Douglas, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (1973) (Douglas, J., dissenting)), would grant certiorari and reverse the judgment.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted in the Superior Court of California, County of Los Angeles, of exhibiting an allegedly obscene motion picture in violation of California Penal Code § 311.2 (1970), which provides in pertinent part as follows:

“Every person who knowingly sends or . . . possesses . . . with intent to distribute or to exhibit to others, . . . any obscene matter is guilty of a misdemeanor.”

“Obscene matter” is defined in § 311 (a), which provides in pertinent part as follows:

“ ‘Obscene matter’ means matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.”

Petitioner’s appeal was certified by the Appellate Department of the Superior Court to the Court of Appeal which, after rehearing, affirmed. 33 Cal. App. 3d 900, 109 Cal. Rptr. 433. The California Supreme Court denied certiorari.

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, as it incorporates the definition of “obscene matter” of § 311 (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, and, since the judgment of the California Court of Appeal 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. 483, 494 (1973) (Brennan, J., dissenting).

Moreover, on the basis of the Court’s own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari is improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, the petitioner did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioner has thus never been provided the independent judicial review to which the Court held him entitled in Jenkins. At a minimum, the Court should vacate the judgment and remand for such a review.

Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, ante, p. 141, I believe that, consistent with the Due Process Clause of the Fourteenth Amendment, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards. 
      
       Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits.
     