Sup. Ct. Wash. 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 White.
In this case and in 13 other cases involving issues dealing with obscenity, Mr. Justice Brennan complains that by denying certiorari or dismissing an appeal, the Court has failed to pass independently on the obscenity of the materials involved. This is a task which he has insisted, see Jacobellis v. Ohio, 378 U. S. 184, 187-190 (1964), the Court must perform under the approach to obscenity which he espoused and explicated for the Court in Roth v. United States, 354 U. S. 476 (1957); which he refined for himself and others in Jacobellis v. Ohio, supra; Memoirs v. Massachusetts, 383 U. S. 413 (1966); Ginzburg v. United States, 383 U. S. 463 (1966); Mishkin v. New York, 383 U. S. 502 (1966); and Ginsberg v. New York, 390 U. S. 629 (1968); but which he has now repudiated.
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Brother Brennan’s complaints are wide of the mark. Obscenity cases, like others, are not immune from the standards generally governing the exercise of our appellate jurisdiction. The Court has never indicated that plenary review is mandatory in every case dealing with the issue of obscenity.
In five of these cases,1 the issue whether the materials involved are obscene was not presented to this Court and the publications themselves were not lodged here. Rule 23 (1) (c) of this Coiwt’s Rules provides that “[o]nly the questions set forth in the petition or fairly comprised therein will be considered by the court.” Rule 15 (1) (c) with respect to appeals is to the identical effect. I suggest that we are entitled to follow our own Rules. See R. Stern & E. Gressman, Supreme Court Practice § 6.37, pp. 297-299 (4th ed. 1969).
In six other cases,2 the issue of obscenity vel non is among the questions presented here, but the materials themselves have not been filed with thirs’ Court. While our Rules permit parties to dispense with filing the entire record at the petition for certiorari stage, a petitioner is completely free at that time to file all or any part of the record he deems necessary or desirable to present clearly the issues he wants reviewed. Indeed, our Rule 23 (4) states that “[t]he failure of a petitioner to present with accuracy, brevity, and clearness whatever is essential to a ready and adequate understanding of the points requiring consideration will be a sufficient reason for denying his petition.” Had the petitioner in any of
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these cases desired that serious attention be given to the materials themselves, he could have filed them here. Moreover, in each instance either the Court of Appeals or the state appellate court expressly addressed the issue of obscenity and found the materials obscene under proper standards. Under these circumstances, denying certiorari is wholly consistent with our practice.
Finally, I join in denying petitions for certiorari in this case and two other cases, Buckley v. New York, supra, and Sians v. United States, supra. In Buckley, the materials in question have been lodged with the Court, and the issue of their obscenity is raised in the petition for certiorari. They were examined and described by the Court of Appeals for the State of New York and were held to be obscene under both Miller and pre-Miller standards. Examination of the materials has not persuaded me that certiorari should be granted. The same is true of Siam. The materials, an unremitting series of explicit photographs of a wide spectrum of sexual conduct, including homosexual acts, anal intercourse, fellatio, cunnilingus, and group orgies, were held obscene under any standard by the Court of Appeals. I would not review that judgment.
In J-R Distributors, Inc., the case in which this opinion is filed, the issue of the obscenity of the materials involved was raised in the petition for certiorari, and part, but not all, of them was lodged with this Court. I join in denying the petition for certiorari. Although some of. the materials have not been filed here and are therefore not before us, the Washington Supreme Court found all of them obscene under both Roth and Miller standards. As for the materials on file, it is sufficiently clear to me that they fall within the category of hard-core pornography unprotected by the First Amendment that plenary review is not required. One of the publications involved is Sex Between Humans and Animals. Me.
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Justice Brennan would apparently hold that the First Amendment prohibits government from denying consenting adults access to such material, but I do not construe the First Amendment as preventing the States from prohibiting the distribution of a publication whose dominant theme is represented by repeated photographs of men and women performing sex acts with a variety of animals.
Footnotes
[1] Carlson v. United States, supra; Village Books, Inc. v. Marshall, supra; Cangiano v. United States, supra; Kaplan v. United States, supra; and Watkins v. South Carolina, supra.
[2] Brown v. United States, supra; Thevis v. United States, supra; Peachtree News Co., Inc. v. United States, supra; Enskat v. California, supra; Paris Adult Theatre I v. Slaton, supra; and Millican v. United States, supra.
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