James H. Herman, Andrew R. Chaja, and Donald Lowe v. State of Arkansas, 420 U.S. 953 (1975)
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Scribd Government DocsJames H. Herman, Andrew R. Chaja, and Donald Lowe v. State of Arkansas, 420 U.S. 953 (1975)
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Scribd Government Docs420 U.S.
953
95 S.Ct. 1337
43 L.Ed.2d 431
James H. HERMAN, Andrew R. Chaja, and Donald Lowe
v.
State of ARKANSAS.
No. 74-717.
Supreme Court of the United States
February 24, 1975
On petition for writ of certiorari to the Supreme Court of Arkansas.
The petition for a writ of certiorari is denied.
Mr. Justice BRENNAN, joined by Mr. Justice STEWART and Mr.
Justice MARSHALL, dissenting.
Petitioners were convicted in the Pulaski County, Arkansas Circuit Court of
exhibiting an allegeldy obscene film in violation of Ark.Stat.Ann. 41-2729
(Supp.1973), which provides in pertinent part as follows:
'Hereafter, it shall be unlawful for any person knowingly to exhibit . . . any
obscene film.'
'Obscene' is defined in 41-2730(2), which provides:
"Obscene' means that to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals to
prurient interest.'
The Supreme Court of Arkansas affirmed. Herman v. State, 512 S.W.2d 923
(1974).
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, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973)
(Brennan, J., dissenting). It is clear that, tested by that constitutional standard,
41-2729, as it incorporates the definition of 'obscene' in 41-2730(2), is
unconstitutionally over-broad and therefore invalid on its face. For the reasons
stated in my dissent in Miller v. California, 413 U.S. 15, 47, 93 S.Ct. 2607, 37
L.Ed.2d 419 (1973), I would therefore grant certiorari, and, since the judgment
of the Supreme Court of Arkansas 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, 495, 93
S.Ct. 2789, 37 L.Ed.2d 745 (1973) (Brennan, J., dissenting).
Mr. Justice DOUGLAS took no part in the consideration of decision of this
case.
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, 418 U. S. 87, 141, 94 S.Ct.
2887, 41 L.Ed.2d 590 (1974), I believe that, consistent with the Due Process
Clause, petitioners must be given an opportunity to have their case decided on,
and introduce evidence relevant to, the legal standard upon which their
convictions have 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.
