text:
    No. 73-62.
    Wheeler et al. v. Barrera et al.
   C. A. 8th Cir. Certiorari granted.


source: Caselaw Access Project

license: Public Domain

text:
    No. 72-1660.
    Blackledge, Warden, et al. v. Perry.
   C. A. 4th Cir. Motion to dispense with printing respondent’s brief and certiorari granted.


text:
    No. 73-203.
    Eisen v. Carlisle & Jacquelin et al.
   C. A. 2d Cir. Certiorari granted. Parties requested to brief and argue, in addition to questions presented in petition, jurisdiction of the Court of Appeals.


text:
    No. 72-1602.
    Slayton, Penitentiary Superintendent v. Garland.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-1616.
    Bogue Electric Manufacturing Corp. et al. v. Zeller et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 72-1728.
    Williams v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 72-6859.
    Goodwin v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 72-6956.
    Hurse v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 72-6991.
    Solomon v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-33.
    Air Terminal Cab, Inc., et al. v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-51.
    Yellowstone Park Lines, Inc., et al. v. Brennan, Secretary of Labor.
   C. A. 10th Cir. Cer-tiorari denied.


text:
    No. 73-65.
    Daly v. Waldor, Commissioner of Highways of Minnesota, et al.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 73-66.
    Scholle Chemical Corp. et al. v. National Labor Relations Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-67.
    In re Niblack.
   C. A. D. C. Cir. Certio-rari denied.


text:
    No. 73-75.
    United States Steel Corp. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-80.
    No. 73-5037.
    No. 73-5079.
    Whiten v. United States; Keller v. United States; and Whitty v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 474 F. 2d 1346.


text:
    No. 73-85.
    Baldwin County Electric Membership Corp. et al. v. Price Commission et al.
   Temp. Emerg. Ct. App. Certiorari denied.


text:
    No. 73-96.
    Womack v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-98.
    L & A Creative Arts Studio, Inc., et al. v. Redevelopment Authority of the City of Philadelphia et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-127.
    Topik et al. v. Catalyst Research Corp. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-133.
    Old Dominion Box Co., Inc. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-151.
    No. 73-5144.
    No. 73-5162.
    Fuentes v. United States; Lara v. United States; and Aleman et al. v. United States.
   C. A. 5th Cir. Certiorari denied. Reported below: 478 F. 2d 408.


text:
    No. 73-152.
    No. 73-153.
    No. 73-154.
    First Boston Corp. v. Chris-Craft Industries, Inc.; Bangor Punta Corp. et al. v. Chris-Craft Industries, Inc.; and Piper et al. v. Chris-Craft Industries, Inc.
   C. A. 2d Cir. Certiorari denied. Reported below: 480 F. 2d 341.


text:
    No. 73-155.
    Doran v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-171.
    Barr et al. v. United States et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-174.
    Monday v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-180.
    Gateway Center Corp. v. Merriam.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-181.
    State Electric Service, Inc. v. National Labor Relations Board.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-182.
    Bishop et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-250.
    Hayne v. Boeing Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-5025.
    Goetz v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-5040.
    Khouri v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5041.
    Crockett v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 73-5042.
    Marshall v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5043.
    Myles v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-5045.
    Taylor, aka Findley v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5049.
    Streeter v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5050.
    Guzman v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5056.
    Higdon v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-5057.
    Oree v. New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5059.
    Sain v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5060.
    Stamey v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5062.
    Blackmon v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5066.
    D’Avanzo v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5069.
    Hall et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5073.
    Thomas v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5074.
    Murphy v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-5075.
    Estrada v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5077.
    No. 73-5089.
    Walls v. United States; and Johnson, aka Moon v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5078.
    Chodor v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-5085.
    No. 73-5097.
    Beasly v. United States; and Hicks v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5092.
    Fungone v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5093.
    Kirkland v. Weinberger, Secretary of Health, Education, and Welfare.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5094.
    Miller v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5096.
    Kelley v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-5100.
    Orum v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-5101.
    Jenkins v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5103.
    Hart v. Mississippi.
   Sup. Ct. Miss. Certiorari denied.


text:
    No. 73-5107.
    Mitchell v. California Blue Shield.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5113.
    Holmes v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-5118.
    Lewis v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5123.
    Manning v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5129.
    McGill v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-5135.
    Burke v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-5209.
    Cedargreen v. Beto, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-5211.
    Hopkins v. United States.
   C. A. 7th Cir. Certiorari denied.


author: Mr. Justice Douglas,

text:
    No. 72-1495.
    Yale Broadcasting Co. et al. v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.

Mr. Justice Brennan would grant certiorari and set case for oral argument.

Mr. Justice Douglas,

dissenting.

In March 1971, the FCC issued a public notice, Licensee Responsibility to Review Records Before Their Broadcast, 28 F. C. C. 2d 409, which was interpreted in many quarters as a prohibition on the playing of “drug related” songs by licensees. That belief was strengthened five weeks later when the Commission's Bureau of Complaints and Compliance provided broadcasters with the names of 22 songs labeled “drug oriented” on the basis of their lyrics. The industry widely viewed this as a list of banned songs, and many licensees quickly acted to remove other songs from the air as well. Some announcers were fired for playing suspect songs.

In April the Commission denied a petition for reconsideration, but attempted to “clarify” its previous order. 31 F. C. C. 2d 377. But although it repudiated the list of banned songs, it reiterated the basic threat by noting that “the broadcaster could jeopardize his license by failing to exercise licensee responsibility in this area.” The nature of that responsibility was unclear. The new statement indicated reaffirmation of the prior decision, yet two concurring commissioners indicated that it restored the status quo to the March notice. It seems clear, however, that the Commission majority intended to coerce broadcasters into refusing to play songs that in the Commission’s judgment were somehow “drug related.” The April order suggested the prescreening of songs as one method of compliance. And in subsequent testimony before Congress, the Chairman of the Commission stated that if a licensee was playing songs that in the Commission’s judgment “promote the use of hard drugs,” “I know what I would do, I would probably vote to take the license away.”

Still unsure of its responsibilities, but desiring to avoid distorting its artistic judgments by superimposing the Commission’s vague sociological ones, petitioner Yale Broadcasting Company drafted its own station policy and submitted it to the Commission, asking for a declaratory ruling on whether it complied with the Commission’s orders. The station proposed to. fulfill its duties in this area by public service and news programming rather than by censoring its music. It elaborated its policy in a six-page statement. The Commission, finding the proposed policy too “abstract,” declined to issue any declaratory ruling. The petitioners then brought this action, challenging the Commission’s actions on First Amendment grounds, and arguing that the regulations were impermissibly vague. Petitioners also argued that they should have been the subject of formal rule-making procedures.

In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 148 (1973) (concurring in judgment), I indicated my view that TV and radio stand in the same protected position under the First Amendment as do newspapers and magazines. I had not participated in the earlier opinion in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969), which placed broadcasters under a different regime, authorizing governmental regulation to ensure “fairness” of presentation. I explained in Columbia Broadcasting, supra, the inevitable danger resulting from placing such powers in governmental hands — a danger appreciated by the Framers of the First Amendment. “The Fairness Doctrine has no place in our First Amendment regime. It puts the head of the camel inside the tent and enables administration after administration to toy with TV or radio in order to serve its sordid or its benevolent ends.” 412 U. S., at 154. The instant case well illustrates those dangers.

I doubt that anyone would seriously entertain the notion that consistent with the First Amendment the Government could force a newspaper out of business if its news stories betrayed too much sympathy with those arrested on marihuana charges, or because it published articles by drug advocates such as Timothy Leary. The proposition is so clear that rarely has the Government ever tried such a thing. See Near v. Minnesota, 283 U. S. 697 (1931). If the Government set up a new bureau with the job of reviewing newspaper stories for such “dangerous” tendencies, and with the power to put out of business those publications which failed to conform to the bureau’s standards, the publisher would not have to wait until his newspaper had been destroyed to challenge the bureau’s authority. The threat of governmental action alone would impose a prohibited restraint upon the press. “[Inhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government.” Lamont v. Postmaster General, 381 U. S. 301, 309 (1965) (Brennan, J., concurring). Cf. Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); Dombrowski v. Pfister, 380 U. S. 479 (1965).

Yet this is precisely the course taken here by the FCC. The Commission imposes on the licensees a responsibility to analyze the meaning of each song’s lyrics and make a judgment as to the social value of the message. The message may be clear or obscure, and careful scrutiny would seem required. This task is to be carried out under the Commission’s watchful eye and with the knowledge that repeated errors will be punished by revocation of the license. For now the regulation is applied to song lyrics; next year it may apply to comedy programs, and the following year to news broadcasts.

In New York Times Co. v. Sullivan, 376 U. S. 254, 279 (1964), we said that the State could not impose on newspapers the burden, under penalty of civil liability, of checking out every controversial statement for “truth.” “Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which 'steer far wider of the unlawful zone.’ . . . The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.” Ibid. Songs play no less a role in public debate, whether they eulogize the John Brown of the abolitionist movement, or the Joe Hill of the union movement, provide a rallying cry such as “We Shall Overcome,” or express in music the values of the youthful “counterculture.” The Government cannot, consistent with the First Amendment, require a broadcaster to censor its music any more than it can require a newspaper to censor the stories of its reporters. Under our system the Government is not to decide what messages, spoken or in music, are of the proper “social value” to reach the people.

I dissent.

       N. Y. Times, Mar. 7, 1971, p. 28, col. 3. In some cases stations stopped playing, regardless of subject or lyric, all the works of particular artists whose views might offend the Commission. 155 U. S. App. D. C. 390, 399 n. 9, 478 F. 2d 594, 603 n. 9 (1973) (Bazelon, C. J., dissenting) (citing petitioners’ joint appendix, pp. 87-88).

       In its subsequent order in April the Commission reported that the list of 22 songs had been identified by the Department of the Army. 31 F. C. C. 2d 379 (1971). The Commission had not consulted with the Bureau of Narcotics and Dangerous Drugs. New York Times, Mar. 28, 1971, p. 41, col. 1 (reproduced in Joint Appendix in C. A. D. C. Cir., p. 203).

       Hearings on the Effect of Promotion and Advertising of Over-the-counter Drugs on Competition, Small Business, and the Health and Welfare of the Public before the Subcommittee on Monopoly of the Senate Select Committee on Small Business, 92d Cong., 1st Sess., pt. 2, pp. 734-736 (1971).

       The rationale of Red Lion, supra, has now also been applied to newspapers by at least one State. See Tornillo v. Miami Herald Publishing Co., 287 So. 2d 78 (Fla. 1973). While publishers and editors of newspapers would be surprised to learn that they were under a newly created federal bureau, such an event might not be unexpected, given the retrogressive steps that we have witnessed.


text:
    No. 72-1498.
    Thompson v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Stewart would grant certiorari and set case for oral argument.

Mr. Justice Douglas,

dissenting.

The petitioner here was convicted in District Court of conspiring to transport forged securities in interstate commerce, 18 U. S. C. § 2314, and of aiding and abetting the substantive crime. The trial judge's instruction to the jury did not clearly require that it find that defendant had knowledge of the interstate character of the transaction. Regardless of whether the substantive count requires such knowledge, it seems clear that the conspiracy offense would. See the opinion of Judge Learned Hand in United States v. Crimmins, 123 F. 2d 271, 273 (CA2 1941). Moreover, here as in Barnes v. United States, 412 U. S. 837 (1973), we deal with an offense traditionally treated as a local law question; it becomes federal only through the nexus with interstate commerce. See my dissenting opinion in Barnes v. United States, supra, p. 848. Proof of that nexus is therefore required for conviction. I would grant certiorari.


text:
    No. 72-1550.
    Alo v. United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas,

with whom Mr. Justice Brennan and Mr. Justice Marshall concur,

dissenting.

In 1969 the petitioner was indicted for obstructing an investigation of the Securities and Exchange Commission, and he was convicted by a jury. Both in pretrial motions and on appeal the defendant insisted that the Government had obtained an identical indictment in 1966 but had for some reason kept it secret, and that therefore there was a three-year post-indictment delay which denied the defendant his right to a speedy trial. The Government would not confirm or deny this allegation, and the defendant was unable to produce substantiating evidence. The conviction was affirmed, the Court of Appeals concluding that in any case no prejudice was shown by the defendant. 439 F. 2d 751, 755-756 (CA2 1971). The present proceeding arises from petitioner’s motion to vacate sentence, based on newly discovered evidence confirming the petitioner’s earlier suspicions and revealing motivations for the delay which the District Court found were “unworthy and discreditable.” The motion was denied, however, again for the reason that ho prejudice had been shown, and the Court of Appeals again affirmed.

As revealed in part by a Justice Department memorandum made available to the District Court, the Government embarked on a conscious mission to conceal the 1966 indictment to prevent disclosure of an illegal wiretap on a member of the Bar. At first the indictment was sealed. Two years later the Chief of the Fraud Section of the Criminal Division wrote a confidential memorandum to the Assistant Attorney General in charge of the Division. He pointed out that the indictment was sealed because of its factual relationship to another indictment returned the same day against a Miami attorney, who had been the subject of the “electronic- surveillance.” The memorandum continued: “Immediately after the return of the indictments, United States Attorney Morgenthau expressed great concern over the disclosure of these logs, because he did not want to spread on the record that the Department had engaged in electronic surveillance of a member of the bar. Assistant United States Attorney Givens now proposes the dismissal of the indictment as to [the attorney] and the opening of the Alo indictment . . . .” The memorandum then went on to state why it might be possible to prevent disclosure of the wiretap in a prosecution of Alo, the petitioner here, an associate of the overheard attorney.

For reasons still unknown, the Government never did proceed with the 1966 indictment against the petitioner; instead it kept that indictment secret and proceeded with the new indictment, more than three years after the original 1966 indictment. Although the suspicions of the defense were aroused, as indicated above the Government was able to keep the earlier indictment and the embarrassing wiretaps secret throughout petitioner’s trial.

In Barker v. Wingo, 407 U. S. 514, 533 (1972), we noted that a speedy trial is “a fundamental right of the accused” that is “specifically affirmed in the Constitution.” In determining whether that right had been denied, we looked primarily to four factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id., at 530. But we cautioned that no one of these four factors is “a necessary or sufficient condition” to finding that the right to speedy trial has been denied. Id., at 533.

There can be no contention that the three-year delay is “de minimis,” and the defendant here surely cannot be faulted for failing to assert his right. See id., at 525-527. The Government argues that he has made no showing of prejudice however, and on this basis alone his claim should be denied. The petitioner argues that in a case such as this, where the delay, caused by the Government, is not only unjustified but is “unworthy and discreditable,” his failure to make a showing of prejudice is not crucial.

In 1963 Mr. Chief Justice Warren warned that the “fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual . . . [imposing] a heavier responsibility on this Court in its supervision of the fairness of procedures in the federal court system.” Lopez v. United States, 373 U. S. 427, 441 (concurring). That danger has not abated. In 1972 alone 43,000 people were overheard in 500,000 conversations pursuant to electronic surveillance authorized under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. § 2510 et seq. Administrative Office of the United States Courts, Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications, Table 4, pp. 12-13. (1972). There is no tally available of the electronic surveillance undertaken which does not purport to be authorized by Title III. My views on the constitutionality of electronic surveillance have been expressed before. See, e. g. United States v. White, 401 U. S. 745, 756 (1971).

Nothing in our opinion in Barker suggests that a finding of prejudice is necessary before relief can be granted in denial of a speedy trial; indeed, as pointed out above, the opposite is true. Cf. Strunk v. United States, 412 U. S. 434 (1973). The admitted Government misconduct here which led to the three-year delay arguably presents the kind of fact situation in which it is not necessary for the defendant to show prejudice. I would grant certiorari.


text:
    No. 72-1641.
    Avery v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas and Mr. Justice Stewart would grant certiorari.


text:
    No. 72-1659.
    Patrick v. Field Research Corp. et al.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.

Mr. Justice Douglas,

dissenting.

This case involves a libel suit based on statements made in the heat of the vigorous 1966 campaign for the office of Governor of California. Respondents published a poll indicating that, of the candidates in the Republican primary, petitioner was favored by only 1% of the voters. Petitioner responded by saying that he believed, based on reports from a reliable source, that the poll was corrupt, dishonest, and rigged as a result of a bribe paid by one of the other candidates. Respondents instituted a libel action and recovered $300,000 in damages.

Respondents concede public figure status and the libel award is thus based on the “malice” with which petitioner made the statements. See Rosenbloom v. Metromedia, 403 U. S. 29; Curtis Publishing Co. v. Butts, 388 U. S. 130; New York Times Co. v. Sullivan, 376 U. S. 254. But “[t]he requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.” New York Times Co. v. Sullivan, supra, at 293 (Black, J., concurring). In my opinion the First Amendment prohibits the use' of civil libel laws to impose damages for the discussion of public affairs or criticism of public figures, and this prohibition is in no way dependent upon the results of uncertain speculation as to the “malicious” mental state of the speaker. Freedom of speech does not admit of differentiation limiting its applicability to those possessed of judicially approved states of mind.

I would grant this petition and reverse the judgment below.


text:
    No. 72-1698.
    In re Penn Central Transportation Co. (Bethlehem Steel Corp.).
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-6574.
    Bumgarner v. Raines, Assistant U. S. Attorney.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-6773.
    Shaver v. Sandell et al.
   Justice Ct., East Phoenix Precinct No. 2, Maricopa County, Ariz. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-81.
    Cox v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-102.
    Willis v. United States.
   C. A. 10th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-161.
    DeCamp v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-173.
    Board of Directors et al., Forbes Federal Credit Union, Charter No. 11258, Forbes Air Force Base, Topeka, Kansas v. National Credit Union Administration.
   C. A. 10th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-184.
    Killebrew v. Security Barge Line, Inc.
   Sup. Ct. Miss. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-306.
    Securities and Exchange Commission v. Bangor Punta Corp.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5058.
    Beasley v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5082.
    Gonzalez v. Vincent, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5098.
    Gillon v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5104.
    Lupino v. United States.
   C. A. 8th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-5147.
    Dota v. United States.
   C. A. 3d Cir. Certiorari denied.

Mu. Justice Douglas would grant certiorari.


text:
    No. 73-5175.
    Tuberville v. Texaco Inc. et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 72-1706.
    Hyatt v. Atchison, Topeka & Santa Fe Railway Co.
   Ct. App. Cal., 4th App Dist. Certiorari denied.

Mr. Justice Douglas,

with whom Mr. Justice Brennan concurs,

dissenting.

Petitioner seeks certiorari from the California Court of Appeal, which reversed a $55,000 jury verdict in his favor in this Federal Employers' Liability Act case. Petitioner suffered serious injuries when struck by a speeding car while crossing a highway separating respondent's yards, which have no food-serving facilities, from a diner on the other side of the highway. The court found that petitioner was acting within the scope of his employment; he was on a paid 20-minute lunch break and was on call. The court also found that there was sufficient evidence of foreseeability and avoidability to take the case to the jury. There were no stop signs on the highway, which had a 40-mile-per-hour speed limit. There was evidence that respondent knew that its employees frequently crossed the highway to the diner and had in fact constructed a path for them to the edge of the highway; that workers at times had to wait up to five minutes to cross the highway; that respondent knew of a previous accident involving one of its employees crossing the highway; but that respondent had taken no steps to mitigate the dangers to its employees.

Nonetheless, the court entered judgment n. o. v. for respondent, reasoning that in FELA cases the common law of negligence requires that a “duty” of the employer to the employee has to be shown, and that such duty was not present in this case. The court, “synthesizing” past cases, found that a “duty” had been found only when (1) an employee was injured on the premises of his employer, or (2) an employee was required to be on the premises of a third party in the performance of duties for the employer.

The California court has limited the applicability of the FELA contrary to the purpose of Congress when it amended the Act to wipe out a host of judicially created defenses which had been engrafted on the Act. See Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 508-510; Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 64—68. Moreover, lower federal courts have found FELA liability where an employee was injured on the premises of a third party though not required to be there by the employer to conduct the employer’s business. See Carter v. Union R. Co., 438 F. 2d 208, 210-211; cf. Kooker v. Pittsburgh & Lake Erie R. Co., 258 F. 2d 876, 878. See also Smalls v. Atlantic Coast Line R. Co., 348 U. S. 946, rev’g 216 F. 2d 842; Bountiful Brick Co. v. Giles, 276 U. S. 154.

I would grant certiorari and put the case down for oral argument.


text:
    No. 72-1740.
    Sennott et ux. v. Rodman & Renshaw.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Douglas,

with whom Mr. Justice Black-mun concurs,

dissenting.

The petitioners brought this action in district court for securities fraud against Rodman & Renshaw (Rod-man), a registered broker-dealer in securities and member firm of the New York Stock Exchange; William Roth-bart, a partner in the firm; and Jordan Rothbart (Jordan), William’s son. After a bench trial, the District Court found all three defendants liable. Respondent Rodman then appealed and the Court of Appeals reversed, 474 F. 2d 32 (CA7 1973), finding no basis on which to hold Rodman liable for the concededly illegal and fraudulent scheme.

Both Sennott and Jordan were members of the Chicago Board of Trade, although Sennott had little experience in securities investments. They became acquainted and Jordan urged Sennott to open an account at Rodman through him, saying that his father had made money for other Board of Trade members. Ultimately Sennott agreed and between 1964 and 1966 his trading volume in the accounts at Rodman was more than $2 million, 70% of which was through accounts opened by Jordan.

Unknown to Sennott during this period, Jordan’s employment by Rodman had been terminated because of his questionable integrity, and he had no official connection with the firm after 1958. The Securities and Exchange Commission had held in a 1962 order that between 1955 and 1957 Jordan, while employed by another broker-dealer, had violated various antifraud provisions of the Securities Act. In 1958 his registration as a representative of a member of the National Association of Securities Dealers had been revoked because of deceptive practices.

In early 1964 Jordan induced Sennott to invest in a secondary offering by Skyline Homes, Inc., that Rod-man was handling. Soon after, Jordan encouraged him to buy additional shares of Skyline through stock options made available to William, his father, for the father’s services in underwriting the secondary offering. Sennott ultimately invested $142,000 in these options. They did not exist and Jordan placed the money in his wife’s checking account to use in paying off trading losses. Suspicion did not arise immediately because the options were not due for delivery for seven months. After that, Jordan was able to hold off Sennott’s suspicions with various stories.

In October 1964, Sennott was told that Rodman’s managing partner, Carroll, wanted to talk to him. William Rothbart told Sennott that the options were none of Carroll’s business and that Sennott should not cooperate. William and Jordan accompanied Sennott to his meeting with Carroll, where Carroll revealed that Sennott’s checks had been deposited in Jordan’s wife’s account. But Sennott abided by his agreement with William not to cooperate with Carroll, and Jordan was again able to explain away this suspicious circumstance. William assured Sennott he would receive the options. The truth finally dawned on Sennott in 1966 when he found that another member of the Board of Trade had been the victim of a similar scheme of Jordan’s; Sennott also discovered Jordan’s past at this time. Jordan was expelled from the Board of Trade.

On the basis of these facts the trial judge found Rod-man, as well as Jordan and William, liable. Rodman’s liability was based, inter alia, on § 20 (a) of the Securities Exchange Act of 1934 (15 U. S. C. § 78t), which is set out below. The Court of Appeals reversed, finding that there could be no liability under this section because Rodman did not have advance knowledge of the option scheme and was not involved in it.

We have said repeatedly that “the 1934 Act and its companion legislative enactments embrace a 'fundamental purpose ... to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry.’ ” Affiliated Ute Citizens v. United States, 406 U. S. 128, 151 (1972), quoting SEC v. Capital Gains Bureau, 375 U. S. 180, 186 (1963). '"[It is essential] that the highest ethical standards prevail’ in every facet of the securities industry.” SEC v. Capital Gains Bureau, supra, at 186-187, citing Silver v. New York Stock Exchange, 373 U. S. 341, 366 (1963).

Section 20 (a) provides that anyone who “controls” a person liable under the 1934 Act is equally liable, subject only to the defense of “good faith.” The section “is remedial and is to be construed liberally. It has been interpreted as requiring only some indirect means of discipline or influence short of actual direction to hold a ‘controlling person’ liable.” Myzel v. Fields, 386 F. 2d 718, 738 (CA8 1967). See 3 L. Loss, Securities Regulation 1808-1811, and cases cited in Myzel v. Fields, supra, at 738.

Rodman’s liability for the acts of its partner, William Rothbart, are indisputable under §20 (a), as they are under general principles of agency. But liability cannot be confined to those formally authorized to act in the firm’s behalf, for such a rule would constrict the common-law principles of apparent authority, a construction inconsistent with the broad remedial purpose of the legislation. The purpose of the Act is to expand, not restrict, the public’s remedies.

Here Rodman accepted the orders placed through Jordan for over two years, collecting profits on over $2 million worth of securities transactions. It allowed Jordan to place those orders through its phone on the floor of the Board of Trade, which was under the control of a Rodman employee and was used by only two people besides Jordan — a Rodman partner and a Rodman broker. The District Court found that during this period Jordan solicited orders for Rodman in the same way from at least five others on the floor of the Board of Trade. As the Court of Appeals concedes, Rodman cannot claim lack of knowledge of these activities of Jordan’s. Yet in allowing Jordan to hold himself out as an agent of Rodman, with special access because of his association with one of its partners, and accepting the considerable benefits of Jordan’s activities, Rodman must be responsible for Jordan’s acts even under general agency principles — which do not require even that the principal benefit from the apparent agent’s fraud. Restatement (Second) of Agency §§ 261-262. Agency principles have been applied to find liability on facts almost identical to those here. Blackburn v. Witter, 201 Cal. App. 2d 518, 19 Cal. Rptr. 842 (1962). It is clear that § 20 (a) compels the same result, SEC v. First Securities Co. of Chicago, 463 F. 2d 981 (CA7), cert. denied sub nom. McKy v. Hochfelder, 409 U. S. 880 (1972).

Having knowingly acquiesced for two years in Jordan’s usurpation of authority in order to gain the benefits, Rodman cannot suddenly disclaim liability. In the option fraud Jordan purported to act through William, a Rodman partner, just as he purported to act with Rod-man's consent in the earlier sales, for which Rodman accepted the profits without complaint. In buying the options Sennott was obviously relying on Rodman's purported association with Skyline.

Nor can Rodman interpose the defense of good faith where it knew of Jordan's history of questionable practices but did nothing to warn Sennott. “[T]o satisfy the requirement of good faith [in order for a controlling person to avoid liability thereby] it is necessary for the [controlling person] to show that some precautionary measures were taken to prevent the injury suffered.'' SEC v. First Securities Co. of Chicago, supra, at 987. See also Lorens v. Watson, 258 F. Supp. 724, 732 (ED Pa. 1966); Hecht v. Harris, Upham & Co., 283 F. Supp. 417, 438 (ND Cal. 1968).

The District Court here found Rodman to be a controlling person under § 20 (a) and therefore liable to Sennott. I cannot see how that determination can be held clearly erroneous. Moreover the decision in the Court of Appeals below appears to conflict with the principles applied in Myzel v. Fields, supra; SEC v. First Securities Co. of Chicago, supra; Anderson v. Francis I. duPont & Co., 291 F. Supp. 705 (Minn. 1968).

I would grant certiorari.

       The typical transaction involved Jordan’s telling Sennott that his father recommended a particular buy or sell, obtaining Sennott’s agreement, and calling in the order on the special Rodman phone at the Board of Trade. The orders were processed by William Rothbart and the firm collected the regular broker’s fee on them.

       Jordan had previously told Sennott that he was also buying some of the options. He explained that he had put all the money together so that he could pay for all options in one check.

       Section 20(a) provides: “Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.” 15 U. S. C. § 78t.

       “The Court does not believe that in using the word 'controls’ the Congress intended that degree of control or the right to direct necessary to make out a common law relationship of principal-agent or employer-employee.” Hawkins v. Merrill Lynch, Pierce, Fenner & Beane, 85 F. Supp. 104, 123 (WD Ark. 1949), quoted in 3 L. Loss, Securities Regulation 1810. “Although the cases holding a controlling person liable usually involve employees ... the Acts are not limited to this relationship.” Anderson v. Francis I. duPont & Co., 291 F. Supp. 705, 710 (Minn. 1968).


text:
    No. 72-6419.
    Montoya v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.

Mr. Justice Douglas,

dissenting.

Petitioner, convicted of arson, bribery, and conspiracy, argues that the introduction of incriminating extrajudicial statements of a codefendant when the co-defendant was unavailable to testify because of his claim of Fifth Amendment privilege constituted a violation of petitioner’s Sixth Amendment right to confront the witnesses against him. As in Dutton v. Evans, 400 U. S. 74, where this Court rejected a similar claim, I feel that the Sixth Amendment prohibits the State from putting damaging statements before the jury when the defendant has no opportunity to test those statements for truthfulness and meaning through cross-examination of the declarant. See Dutton v. Evans, supra, at 104 (Marshall, J., dissenting).


text:
    No. 72-6542.
    Corpus et al. v. Estelle, Corrections Director, et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas,

with whom Mr. Justice Marshall concurs,

dissenting.

Petitioner Perales, originally convicted of a drug offense, successfully moved for a new trial. In the first trial the prosecutor had waived the habitual-offender provision for a mandatory life sentence in exchange for the petitioner’s agreement to waive his right to jury trial. On retrial, petitioner exercised his right to jury trial and the prosecutor refused to waive the habitual-offender sentence enhancement provisions. As a consequence petitioner received a mandatory life sentence upon conviction. The prosecutor has stipulated that:

“The decision made by the District Attorney of Travis County to waive the ‘habitual count’ of the indictment in [the first trial] was based solely upon the fact that the Defendant waived a jury trial. If the Defendant had waived a jury trial in [the second trial] the District Attorney of Travis County would have again waived the ‘habitual count’ . . . Record in Ct. Crim. App. in Perales v. State, p. 38 (emphasis added).

It is well established that “ ‘if the only objective of a state practice is to discourage the assertion of constitutional rights it is “patently unconstitutional.” ’ ” Chaffin v. Stynchcombe, 412 U. S. 17, 33 n. 20; Shapiro v. Thompson, 394 U. S. 618, 631; United States v. Jackson, 390 U. S. 570, 581.

We thus held in United States v. Jackson, supra, that the death penalty clause in the Federal Kidnaping Statute, 18 U. S. C. § 1201 (a), which essentially insulated from the death penalty those defendants who -waived the right to jury trial or pleaded guilty, imposed an impermissible burden on the exercise of Sixth Amendment rights.

Such express statutory schemes, however, are not the only mechanism for positing with an accused the necessity of determining whether the risk of greater punishment attending the exercise of constitutional rights makes that exercise too costly. A guilty plea constitutes a waiver of several fundamental rights, among them the right to jury trial. See Santobello v. New York, 404 U. S. 257, 264 (Douglas, J., concurring). Plea bargaining, the extreme importance of which was recognized in Santobello, leaves with the prosecutor the power to set the price for the exercise of those rights. Machibroda v. United States, 368 U. S. 487, held a guilty plea voidable if induced by the prosecutor’s threat to bring additional prosecutions. Yet plea bargaining would be eliminated if an accepted plea to- a lesser offense was rendered constitutionally vulnerable by the prosecutor’s expressed intent to otherwise proceed to trial on the crime charged.

Despite the magnitude of the constitutional issues and the important role of plea bargaining in the administration of criminal justice (see White, A Proposal for Reform of the Plea Bargaining Process, 119 U. Pa. L. Rev. 439 (1971), and Note, The Unconstitutionality of Plea Bargaining, 83 Harv. L. Rev. 1387 (1970)), this Court has never spelled out the constitutional limits of the practice. This case, in which the accused’s right to jury trial was expressly burdened with the possibility of a mandatory life sentence (possibly the maximum penalty a State may exact for criminal conduct; see Furman v. Georgia, 408 U. S. 238) under the habitual offender provisions, provides an opportunity to delimit its permissible bounds. I would take that opportunity.


text:
    No. 72-6595.
    Pueschel v. Connecticut.
   Ct. Common Pleas Conn., App. Div. Certiorari denied.

Mr. Justice Douglas,

with whom Mr. Justice Brennan concurs,

dissenting.

In Bell v. Burson, 402 U. S. 535, we struck down a Georgia statute which provided for the suspension of the licenses of drivers involved in accidents who were uninsured and were unable to post security without any presuspension consideration of fault for the accident. Petitioner’s license was suspended under an essentially identical statute, and petitioner was arrested for driving without a license, prior to our decision in Bell. During his trial, he raised Bell as a defense to the criminal charge, but the Connecticut courts rejected the defense because the events complained of, the suspension and subsequent arrest, occurred prior to Bell. Refusal to apply Bell to petitioner’s case on this ground is in error in view of the fact that this Court vacated and remanded for further proceedings in light of Bell at least three lower federal court cases challenging license suspensions which had occurred prior to our decision in Bell. See Gaytan v. Cassidy, 403 U. S. 902, vacating and remanding 317 F. Supp. 46; Pollion v. Lewis, 403 U. S. 902, vacating and remanding 320 F. Supp. 1343; Latham v. Tynan, 404 U. S. 807, vacating and remanding 435 F. 2d 1248.

The State also argues that petitioner cannot raise Bell as a defense to his criminal charge because he has chosen not to challenge his suspension by seeking available judicial review of the suspension itself, so that he has not raised his contentions in the proper state forum. Since the state court explicitly chose not to reach this argument, we need not reach it in this Court.

Therefore, I dissent from denial of certiorari.


text:
    No. 72-6612.
    No. 72-6840.
    Montgomery v. United States; and Montgomery v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 476 F. 2d 623.

Mr. Justice Douglas,

dissenting.

Petitioners are members of the Pit River Indian Nation who, in order to construct Indian-style buildings, felled one ponderosa pine growing on the public lands of the United States, but within the original boundaries of the lands occupied by their ancestors. They were prosecuted under 18 U. S. C. § 1852, which provides in relevant part:

“Whoever cuts . . . timber growing on the public lands of the United States . . .
“Shall be fined not more than $1,000 or imprisoned not more than one year, or both.
“This section shall not prevent any miner or agriculturist from clearing his land in the ordinary working of his mining claim, or in the preparation of his farm for tillage, or from taking the timber necessary to support his improvements, or the taking of timber for the use of the United States; nor shall it interfere with or take away any right or privilege under any existing law of the United States to cut or remove timber from any public lands .” (Emphasis added.)

In their defense, petitioners claimed that the original “aboriginal title” or “Indian title” to their ancestral tribal lands constituted a right recognized by existing law. The Court of Appeals dismissed this claim, reasoning that the specific exemptions granted miners, farmers, and the United States negatived a reading of the “existing law” clause which would include ancestral title, and noting that there was no “relevant authority” for the defense raised by petitioners.

There is, of course, no “relevant authority” for petitioners’ claim, because the issue of whether the “existing law” clause of 18 U. S. C. § 1852 reaches aboriginal or Indian title has not been previously litigated.

But this Court has often held that the occupation of property by Indians’ ancestors gives rise to Indian title, which, though not a property interest subject to Fifth Amendment protections, encompasses the right to occupancy and use — the right to fish, to hunt, and to cut timber sufficient for use on the land. See, e. g., Tee-Hit-Ton Indians v. United States, 348 U. S. 272, 279; United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 345; United States v. Cook, 19 Wall. 591, 593-594; Johnson v. M’Intosh, 8 Wheat. 543, 574, 584, 591 (Marshall, C. J.). This, I think, is a right recognized by the “existing law” of the United States.

A question strikingly similar to the issue in this case arose in Cramer v. United States, 261 U. S. 219, where a land grant by the United States to a railroad excepted lands “reserved ... or otherwise disposed of.” Some of the land encompassed by the grant was occupied by three individual Indians. The United States, on behalf of the Indians, argued that the words of the exceptions clause, though obviously general, nonetheless encompassed the right of occupancy of the Indians. The Court, finding the occupancy of the individual Indians closely akin to the “original nomadic tribal occupancy” relied on by petitioners in this case, agreed with the United States because “[unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy.” Id., at 227. The Court held that the “fact that such right of occupancy finds no recognition in any statute or other formal governmental action is not conclusive. The right, under the circumstances here disclosed, flows from a settled governmental policy.” Id., at 229.

As the Court stated in 1912,

“[I]n the Government’s dealings with the Indians . . . [t]he construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith. This rule of construction has been recognized, without exception, for more than a hundred years . . . .” Choate v. Trapp, 224 U. S. 665, 675.

I see no reason why, in our time, that rule of construction should be nullified in the absence of any affirmative showing that Congress chose not to recognize aboriginal Indian title as a defense to 18 U. S. C. § 1852. Considering the solicitude of the Federal Government for Indian title in the past, the Court of Appeals arguably was in error in rejecting the claims of the petitioners when it could find no “relevant authority.” I would take the case and put it down for oral argument.


text:
    No. 72-6676.
    Tant v. North Carolina.
   Ct. App. N. C. Certiorari denied.

Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall would grant certiorari.


text:
    No. 72-6778.
    Burt v. New Jersey et al.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Douglas,

with whom Mr. Justice Brennan and Mr. Justice Marshall concur,

dissenting.

In Griffin v. California, 380 U. S. 609 (1965), we held that the Fifth Amendment guarantee against self-incrimination prohibits a prosecutor from commenting to the jury upon the defendant’s failure to testify at his trial. Such a practice would place a price on the defendant’s invocation of his constitutional privilege— a price that would seriously undermine the value of that privilege. And in Miranda v. Arizona, 384 U. S. 436 (1966), we held that the prosecutor may not introduce into evidence statements of the accused taken while he was in police custody, unless those statements were made in compliance with procedures ensuring that the accused had understood and intelligently waived his Fifth Amendment privilege.

Indeed we said in Miranda:

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Id., at 468 n. 37.

This case presents a situation very much like those found constitutionally wanting in Miranda and Griffin. Here the accused apparently understood his Fifth Amendment privilege and said nothing while in police custody, and that silence was brought before the jury by the prosecutor, who argued that they could infer guilt from it. Seeking to vindicate his federal constitutional rights, the prisoner ultimately brought an action for habeas corpus in federal court, and the District Court granted the writ. The Court of Appeals reversed.

Petitioner has been convicted of murder. It was uncontested that he shot the deceased while alone with him, but petitioner maintained that the gun went off accidentally during a scuffle which began when the deceased pointed the gun at him. The petitioner was arrested later that night when the police found him asleep inside a tire store where he was once employed. Unaware of the shooting, the police charged him only with breaking and entering. They asked him no questions about the killing earlier that evening, and he volunteered no information. It was this silence — this act of not volunteering incriminating information — -that was ultimately used against him.

At trial he testified in his own behalf and told his story of the accidental shooting. On cross-examination the prosecutor brought out that the defendant had not told this story to the police. The defense asked for a curative instruction to the jury, informing it that the defendant had no duty to tell the police that he had just shot someone. This was denied. Apparently encouraged, the prosecutor told the jury in summation:

“He never told the police he accidentally shot Shorty Owens, never, at least up until the time he was lodged in Camden County Jail, and yet he is here, sitting here today asking you to believe this story.
“If this was an accidental shooting, why didn’t he go and say, ‘I just accidentally shot somebody.’ ” Burt v. Yeager, 342 F. Supp. 188, 192 (N. J. 1972).

In upholding the conviction the court below found that Harris v. New York, 401 U. S. 222 (1971), not Griffin, supra, was controlling. In Harris the majority held that statements otherwise barred by Miranda may be introduced to impeach a defendant with the temerity to testify in his own behalf. It is argued that here, as in Harris, the defendant’s prior statements are inconsistent. But of course here there are no prior statements; it is the defendant’s silence that is used against him. The District Court, after carefully reviewing the record, found that the silence was just as consistent with the defendant’s story as with the prosecution’s case. In reversing, the Court of Appeals concluded otherwise. We thus seem to have come to the point where the exercise of one’s constitutional rights can be offered to the jury as evidence of guilt.

We should grant this petition for certiorari.


author: Me. Justice Brennan,

text:
    No. 72-6906.
    Mullin v. Wyoming.
   Sup. Ct. Wyo. Certiorari denied.

Me. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall concur,

dissenting.

Petitioner and three friends observed a case of whiskey being placed into a truck. A short time later petitioner encouraged Richard Anderson, who had not been present to see the case being put into the vehicle, to steal the spirits. Later in the day, Anderson removed the case from the truck and gave eight bottles to one of petitioner’s friends, who in turn delivered three bottles to petitioner. Petitioner was arrested and convicted in the Justice of the Peace Court for Platte County, Wyoming, of the misdemeanor offense of being a minor in possession of alcoholic beverages. A few months later petitioner was charged and convicted in the District Court of Platte County with feloniously counseling and encouraging Anderson to commit grand larceny. The Supreme Court of Wyoming affirmed, rejecting petitioner's claim that the second prosecution violated his constitutional protection against double jeopardy, 505 P. 2d 305 (1973).

Although both the misdemeanor and felony charges arose out of the “same transaction or occurrence," they were prosecuted by the State in separate proceedings. That, in my opinion, requires that we grant the petition for certiorari and reverse, for I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), requires the prosecution, except in most limited circumstances not present here, “to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, at 453-454 (1970) (Brennan, J., concurring); see Miller v. Oregon, 405 U. S. 1047 (1972) (Brennan, J., dissenting); Harris v. Washington, 404 U. S. 55, 57 (1971) (separate opinion of Douglas, J.); Waller v. Florida, 397 U. S. 387, 395 (1970) (Brennan, J., concurring).


text:
    No. 72-6950.
    Mason v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas,

dissenting.

Petitioner, while attempting to enter the United States at San Ysidro, California, was subjected to a vaginal search which yielded approximately one ounce of heroin. Subsequently she was convicted of importing the substance. Conceding that the police were justified in causing her to submit to a body cavity search under the present “clear indication” standard, petitioner urges the adoption of a rule that body cavity searches must be authorized by a warrant when time permits. It has long been held that the ordinary necessity for obtaining a warrant prior to a domestic search does not apply with full force to border searches. See Boyd v. United States, 116 U. S. 616, 623; Carroll v. United States, 267 U. S. 132, 154. But the stark contrast between permitting a minor customs official to make a warrantless search of baggage and permitting that same official to determine the instances in which intrusive and degrading vaginal and rectal searches will be conducted demonstrates the necessity for a delineation by this Court of the exact parameters of the border-search exception. The record in Thompson v. United States, 411 F. 2d 946, 948, indicated that 80% to 85% of all those subjected to body cavity searches at the border are innocent of the suspected wrongdoing. This statistic shows the desirability of positing ultimate decisionmaking responsibility for this type of highly intrusive search with a “neutral and detached magistrate” rather than a zealous officer “engaged in the often competitive enterprise of ferreting out crime.”

        Rivas v. United States, 368 F. 2d 703, 710.

       Judges Ely and King indicated acceptance of petitioner’s proposition but felt constrained by the existing law in the Ninth Circuit. A number of commentators have also argued for a warrant requirement. Note, Search and Seizure at the Border—The Border Search, 21 Rutgers L. Rev. 513 (1967). Comment, Intrusive Border Searches—Is Judicial Control Desirable?, 115 U. Pa. L. Rev. 276 (1966).

        Johnson v. United States, 333 U. S. 10, 14.


text:
    No. 72-6979.
    Meinhold v. Taylor et al.
   Sup. Ct. Nev. Certiorari denied.

Mr. Justice Douglas,

with whom Mr. Justice Marshall concurs,

dissenting.

Petitioner was a public school teacher in Nevada. He had taught in the Clark County School District for seven years, and in his present position at one of the district’s junior high schools for five years. He was notified in March 1971 that his contract would not be renewed for the following school year. The dismissal was upheld by a professional review committee after a hearing, and by the school board. In affirming their actions, the Nevada Supreme Court relied on the charge of “unprofessional conduct,” which was supported solely by certain allegations concerning petitioner’s views on the State’s compulsory-attendance laws.

The petitioner does not believe in compulsory-attendance laws, and he did not bend his views in the hearing before the committee. He had been quoted as saying that schools are bad for children. But he never aired those views in his classroom, and he was never charged with encouraging his students to be truant.

We have held that teachers may not “constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.” Pickering v. Board of Education, 391 U. S. 563, 568 (1968). There we found that the school board’s dismissal of a teacher for publishing a letter critical of the board’s allocation of funds and its handling of a bond issue, was constitutionally impermissible. See also Keyishian v. Board of Regents, 385 U. S. 589 (1967); Shelton v. Tucker, 364 U. S. 479 (1960). Just recently we reaffirmed that principle, pointing, out that it did not rely on any contractual duties: “For at least a quarter-century, this Court has made clear that . . . the government . . . may not deny a benefit to a person on a basis that infringes his constitutionally protected interests— especially, his interest in freedom of speech.” Perry v. Sindermann, 408 U. S. 593, 597 (1972).

The court below does not directly question thése principles. Instead, admitting there was no advocacy of truancy in the classroom, it found that “a teacher’s right to teach cannot depend solely upon his conduct in the schoolroom.” 506 P. 2d 420, 425-426. It then reached into the petitioner’s family relationship, justifying the dismissal because of the expression of his views on attendance laws to his children, thereby “encouraging his daughters not to attend school.” Id., at 425. In thus “carrying out” his views on compulsory-attendance laws, the court below found that he had forfeited his rights to employment.

May Pickering publish his criticisms in the local newspaper with impunity while the petitioner must keep his views secret from his children, lest they adopt them?

I would grant the petition for certiorari and set the case for argument.


text:
    No. 73-93.
    Stafos v. Jarvis, Trustee in Bankruptcy.
   C. A. 10th Cir. Motion to amend petition granted. Certiorari denied.


text:
    No. 73-168.
    Durovic, dba Duga Laboratories, et al. v. Weinberger, Secretary of Health, Education, and Welfare, et al.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Blackmun took no part in the consideration or decision of this petition.


author: Mr. Justice Brennan,

text:
    No. 73-5102.
    Waller v. Florida.
   Dist. Ct. App. Fla., 2d Dist. Certiorari denied. Stay order heretofore entered by the Court on June 18, 1973 [412 U. S. 947], vacated.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall concur,

dissenting.

Convicted by a St. Petersburg Municipal Court of violating local ordinances, in removing a canvas mural from a wall inside the City Hall of St. Petersburg, Florida, and carrying the mural through the city streets, petitioner was subsequently convicted on a charge of grand larceny for the same conduct. We granted cer-tiorari, vacated the latter judgment, and remanded for further proceedings, holding that the state appellate court erred when it ruled that a State and its municipalities were separate sovereigns for purposes of the double jeopardy provisions of the Fifth Amendment, and for that reason rejected petitioner’s double jeopardy claim. Waller v. Florida, 397 U. S. 387 (1970). On remand, the Circuit Court of Pinellas County rejected petitioner’s assertion of double jeopardy on grounds— not previously reached by the state courts due to their reliance on the dual sovereignty theory — that the violations of the local ordinances and grand larceny were not the “same offense.” The Florida District Court of Appeal, Second District, affirmed the judgment of conviction, 270 So. 2d 26 (1972), and the Florida Supreme Court denied a petition for a writ of certiorari. '

At all times it has been conceded that the municipal and state charges arose out of the “same transaction or occurrence.” See Waller v. Florida, supra, at 388. It is my view that the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), requires the prosecution, except in most limited circumstances, not present here, “to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, at 453-454 (1970) (Brennan, J., concurring); see Miller v. Oregon, 405 U. S. 1047 (1972) (Brennan, J., dissenting); Harris v. Washington, 404 U. S. 55, 57 (1971) (Douglas, J., concurring); Waller v. Florida, supra, at 395 (Brennan, J., concurring). Under this “same transaction” test, all charges against petitioner should have been brought in a single prosecution, unless this case fell within one of the test’s exceptions. See, e. g., Ashe v. Swenson, supra, at 453 n. 7, 455 n. 11. I would therefore grant the petition for certiorari and remand for further proceedings not inconsistent with the views expressed in my concurrence in Ashe v. Swenson, supra.


text:
    October 23, 1973
    No. 72-1510.
    Cinema Classics, Ltd., Inc., et al. v. Busch, District Attorney of Los Angeles County, et al.
   Affirmed on appeal from D. C. C. D. Cal. Mr. Justice Douglas, being of the view that the Fourteenth and First Amendments prohibit state obscenity regulation, would vacate so much of the judgment as is the subject of this appeal and remand for further proceedings 'consistent with his dissent in Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70.

Mr. Justice Brennan,

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

dissenting.

Appellants appeal from so much of the judgment of the three-judge court as denied them declaratory and permanent injunctive relief in this action challenging the constitutionality of California’s statutory search-and-seizure provisions (California Penal Code §§ 1523-1542), as construed and applied, and as aids in the enforcement of the underlying California obscenity statute, California Penal Code § 311.2 (a), 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 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 vacate so much of the judgment of the District Court as is the subject of the appeal and remand for further proceedings consistent with my dissent in Paris Adult Theatre I. In that circumstance, I have no occasion to consider whether appellants’ challenge to the constitutionality of the application of §§ 1523-1542 merits plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).


text:
    No. 73-128.
    National Railroad Passenger Corp. v. Miller, Attorney General of Kansas, et al.
   Affirmed on appeal from D. C. Kan.


text:
    No. 72-1558.
    Stein, Administratrix, et al. v. Lewisville Independent School District et al.
   Appeal from Ct. Civ. App. Tex., 2d Sup. Jud. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 72-6917.
    Zweig et al. v. California.
   Appeal from App. Dept., Super. Ct. Cal., County of Los Angeles, dismissed for want of substantial federal question.

Mr. Justice Douglas would note probable jurisdiction and set case for oral argument.


text:
    No. 73-5202.
    Felder v. New York.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question.

Mr. Justice Douglas would note probable jurisdiction and set case for oral argument.


text:
    No. 73-104.
    Kirkpatrick et al. v. New York.
   Appeal from Ct. App. N. Y. dismissed for want of substantial federal question. 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 note probable jurisdiction in this case and reverse judgment of conviction.

Mr. Justice Brennan,

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

dissenting.

Appellant booksellers were convicted in the Criminal Court of the City of New York, New York County, of promoting, or possessing with intent to promote, obscene material, knowing its content and character, in violation of N. Y. Penal Law § 235.05. Appellants challenged the constitutionality under the First and Fourteenth Amendments of N. Y. Penal Law § 235.10 (1) (Supp. 1973-1974), which establishes a presumption that a seller of obscene material knows the contents of the material he sells. Section 235.10 (1) provides as follows:

“A person who promotes or wholesale promotes obscene material, or possesses the same with intent to promote or wholesale promote it, in the course of his business is presumed to do so with knowledge of its content and character.”

Obscenity for purposes of §§ 235.05 and 235.10 is defined in §235.00:

“1. ‘Obscene.' Any material or performance is ‘obscene' if (a) considered as a whole, its predominant appeal is to prurient, shameful or morbid interest in nudity, sex, excretion, sadism or masochism, and (b) it goes substantially beyond' customary limits of candor in describing or representing such matters, and (c) it is utterly without redeeming social value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstance of its dissemination to be designed for children or other specially susceptible audience.” Id., § 235.00 (1967).

The Criminal Court of the City of New York, New York County, rejected appellants’ constitutional attack upon § 235.10. 64 Misc. 2d 1055, 316 N. Y. S. 2d 37 (1970). The Appellate Term of the New York Supreme Court, First Judicial Department, entered an order affirming the judgments of conviction. 69 Misc. 2d 212, 329 N. Y. S. 2d 769 (1971). The New York Court of Appeals, with three judges dissenting, affirmed the order of the Appellate Term. 32 N. Y. 2d 17, 295 N. E. 2d 753 (1973).

It is my view that “at least in the absence of distribution to juveniles or obtrúsive 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). Since it is clear that, when tested by that constitutional standard, the word “obscene” in §§ 235.05 and 235.10, read as defined in § 235.00, renders §§ 235.05 and 235.10 unconstitutionally overbroad and therefore facially invalid, I disagree with the holding that the appeal does not present a substantial federal question, and therefore dissent from the Court’s dismissal of the appeal.

For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore vacate the judgment below and remand for further proceedings not inconsistent with my Paris Adult Theatre I dissent. In that circumstance, I have no occasion to consider at this time whether, if § 235.00 were properly narrowed, appellants’ challenge to the constitutionality of § 235.10 would merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).


text:
    No. 73-212.
    Procaccini et al. v. Jones et al.
   Appeal from Ct. Civ. App. Tex., 11th Sup. Jud. Dist., dismissed for want of substantial federal question. Mr. Justice Douglas, being of the view that the Fourteenth and First Amendments prohibit state obscenity regulation, would vacate judgment below and remand for further proceedings consistent with his dissent in Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70.

Mr. Justice Brennan,

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

dissenting.

Appellants sought in the 44th Judicial District Court of Dallas County, Texas, to enjoin pending and future prosecutions under Texas Penal Code, Art. 527, § 3, arising out of the seizure of motion picture films alleged to be “obscene matter” within § 3. All parties agree that Texas law permits equitable intervention in a criminal proceeding if the criminal statute involved is unconstitutional, or otherwise void, and enforcement would result in irreparable injury to property rights. See State ex rel. Flowers v. Woodruff, 150 Tex. Crim. 255, 200 S. W. 2d 178 (1947). Appellants challenged the constitutionality under the First, Fifth, and Fourteenth Amendments of Art. 527, § 9 (h) Tex. Penal Code (Supp. 1972-1973), enacted as an aid to the enforcement of § 3, which is Texas' basic criminal obscenity statute. Section 9 (h) provides as follows:

“In- the event that a search warrant is issued and matter alleged to be obscene is seized under the provisions 'of this section, any person alleged to be in possession of the said matter or claiming ownership of the matter at the time of its possession or seizure may file a notice in writing with the magistrate within 10 days of the date of the seizure alleging that the matter is not obscene and the magistrate shall set a hearing within one day after request therefor, or at such time as the requesting party might agree, and at such hearing evidence may be presented as to the obscenity of the matter seized and at the conclusion of such additional hearing, the magistrate shall make a further determination as to the obscenity or nonobscenity of the matter. If at such hearing the magistrate finds the matter not to be obscene, then it shall be returned to the person or persons from whom it was seized.”

Obscenity for purposes of Art. 527 is defined in § 1:

“(A) ‘Obscene’ material means material (a) the dominant theme of which, taken as a whole, appeals to a prurient interest; (b) which is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) which is utterly without redeeming social value.
“(B) ‘Prurient interest’ means a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for a specially susceptible audience, the appeal of the subject matter shall be judged with reference to such audience.” Id., § 1.

The 44th Judicial District Court denied appellants’ request for relief. The Texas Court of Civil Appeals affirmed, holding that the appellants had failed to establish the unconstitutionality of § 9 (h). 488 S. W. 2d 543 (1972). The Supreme Court of Texas denied a writ of error and overruled a subsequent motion for rehearing.

It is my view that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsent-ing 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). Since it is clear that, when tested by that constitutional standard, the word “obscene” in §§ 3 and 9 (h), read as defined in § 1, renders §§ 3 and 9 (h) unconstitutionally overbroad and therefore facially invalid, I disagree with the holding that the appeal does not present a substantial federal question, and therefore dissent from the Court’s dismissal of the appeal.

For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore vacate the judgment below and remand for further proceedings not inconsistent with my Paris Adult Theatre I dissent. In that circumstance, I have no occasion to consider at this time whether, if § 1 were properly narrowed, appellants’ challenge to the constitutionality of § 9 (h) would merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).


text:
    No. 73-5237.
    House v. St. Agnes Hospital, Inc., et al.
   Appeal from C. A. 4th Cir. dismissed for want of substantial federal question.


author:
Mr. Justice Douglas,
      Mr. Justice Brennan,

text:
    No. 72-1296.
    Carlson et al. v. Minnesota.
   Sup. Ct. Minn. 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,

dissenting.

Petitioners in this case were convicted of selling obscene books and distributing obscene motion pictures in violation of a local ordinance. They argue that, in the absence of evidence of pandering, selling to minors, or the affronting of unwilling recipients, their convictions are violative of the First and Fourteenth Amendments. In support of the convictions, respondent relies on United States v. Reidel, 402 U. S. 351, and United States v. Thirty-seven Photographs, 402 U. S. 363.

In Stanley v. Georgia, 394 U. S. 557, this Court laid to rest the notion that a State may, consistent with the First Amendment, enforce an approved reading list delineating what materials the citizenry will be allowed privately to peruse. Wholly aside from my own views on what the Constitution demands with respect to obscenity regulation, I fail to comprehend how the right to possession enunciated in Stanley has any meaning when States are allowed to outlaw the commercial transactions which give rise to such possession and to prosecute any merchant who attempts to sell materials to all the Stanleys in this country. I would therefore grant this petition and reverse the convictions on the basis of Stanley v. Georgia, supra.

Mr. Justice Brennan,

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

dissenting.

Petitioners were convicted on charges of selling allegedly obscene books and displaying allegedly obscene motion pictures in violation of St. Paul Legislative Code § 476.01, which provides as follows:

“Any person who shall knowingly exhibit, sell or offer to sell any obscene, lewd, lascivious or filthy book, pamphlet, picture, motion picture, film, paper, letter, writing, print or other matter of indecent character shall be guilty of a misdemeanor.”

It is my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to uncon-senting 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, § 476.01 is constitutionally over-broad 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 Minnesota Supreme Court, and remand for further proceedings not inconsistent with my Paris Adult Theatre I dissent.


author: Mr. Justice Douglas, Me. Justice Brennan,

text:
    No. 72-1487.
    Trinkler v. Alabama.
   Ct. App. Ala. Certiorari granted, judgments 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). Reported below: 49 Ala. App. 753, 272 So. 2d 282.

Mr. Justice Douglas,

with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall concur,

dissenting.

The Court today remands this case for reconsideration in light of last June’s obscenity decisions. The Alabama Court of Criminal Appeals will now decide whether the publications here are obscene in accordance with standards that no one could have predicted at the time that these publications were sold. It must determine whether the sale of these publications, which were never offered to minors and never displayed publicly to unwilling bystanders, and for which purchase was never solicited, could constitutionally be prohibited because they “appealed] to the prurient interest” of the average person applying local community standards, were “patently offensive” under such standards, and lacked “serious” literary, artistic, political, or scientific value. Miller v. California, 413 U. S. 15, 24.

Just recently this Court reiterated:

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.”

The exceptions to the First Amendment written into the Constitution by the majority, which we now ask the court below to apply on remand, could not more clearly exhibit these evils of vagueness. Following the old Roth standards, the Court adopted the approach in Redrup of deciding each case on an ad hoc basis without attempting to offer guidance for future adjudications. A new majority of five now tries again, with reworked Roth standards which allow much freer reign to the predilections of local authorities. But this greater latitude only exacerbates the problem of vagueness.

Every author, every bookseller, every movie exhibitor, and, perhaps, every librarian is now at the mercy of the local police force’s conception of what appeals to the “prurient interest” or is “patently offensive.” The standard can vary from town to town and day to day in an unpredictable fashion. How can an author or bookseller or librarian know whether the community deems his books acceptable until after the jury renders its verdict? The meaning of the standards necessarily varies according to each person's own idiosyncrasies. The standards fail to give adequate notice and invite arbitrary exercise of police power. The evil is multiplied because of the danger to First Amendment values of free expression. “Bookselling should not be a hazardous profession.” Ginsberg v. New York, 390 U. S. 629, 674 (Fortas, J., dissenting).

If the magazines in question were truly “patently offensive” to the local community, there would be no need to ban them through the exercise of police power; they would be banned by the marketplace which provided no buyers for them. Thus it must be the case that some substantial portion of the public not only found them not offensive, but worthy of purchase. How can the bookseller or librarian be sure which of the publications on his shelves are offensive to the majority? Perhaps he will be safe if he sells only publications with a certified history of broad appeal, thus attempting to “steer wide of the unlawful zone.” Yet there are many who deem some magazines offensive and even lingerie advertisements in the Sunday papers. A bookseller or a librarian can never know if some jury will find those views representative of the community. A movie exhibitor in Georgia has just found himself convicted under that State’s obscenity laws for showing a film which received much critical acclaim, and an Oscar nomination for the female lead. We deal here with criminal prosecutions under which a man may lose his liberty. Our Constitution requires fair notice so that the law-abiding can conform their conduct to the requirements of the law.

This requirement is not new, and state enactments attempting to proscribe publication of certain content have run afoul of it before. In Winters v. New York, 333 U. S. 507, the Court considered a New York law which, after the gloss placed upon it by the New York courts, prohibited as obscene the publication of “collections of criminal deeds of bloodshed or lust ‘. . . so massed as to become vehicles for inciting violent and depraved crimes against the person ....’” Id., at 513. In affirming the conviction, the New York court noted that “ ‘ [i] n the nature of things there can be no more precise test of written indecency or obscenity than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals ....’” Id., at 514. The New York court concluded: “ ‘[W]hen reasonable men may fairly classify a publication as necessarily or naturally indecent or obscene, a mistaken view by the publisher as to its character or tendency is immaterial.’ ” Ibid. But this Court disagreed; it did not find the “continuing and changeable experience of the community” adequate specification to support a criminal conviction, for “ 'men of common intelligence’ ” would have to guess at the meaning of the prohibition against publication of stories “ 'so massed as to become vehicles for inciting violent and depraved crimes.’ ” Id., at 518-519.

The standards of Miller are no better. I dissent.

Me. Justice Brennan,

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

dissenting.

Petitioner was convicted on charges of distributing allegedly obscene materials in violation of Title 14, §374 (4)(1), of the Code of Alabama of 1940, as amended, which provides:

“Every person who, with knowledge of its contents, sends or causes to be sent, or brings or causes to be brought, into this state for sale or commercial distribution,' or in this state prepares, sells, exhibits or commercially distributes, or gives away or offers to give away, or has in his possession with intent to sell or commercially distribute, or to give away or offer to give away, any obscene printed or written matter or material, other than mailable matter, or any mailable matter known by such person to have been judicially found to be obscene under this chapter, shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than one year, and may be fined not more than two thousand dollars for each offense, or be both so imprisoned and fined in the discretion of the court.” Ala. Code Tit. 14, § 374 (4) (1) (Cum. Supp. 1971).

It is my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to uncon-senting 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, § 374 (4) 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 of the Alabama Court of Criminal Appeals, and remand for further proceedings not inconsistent with my Paris Adult Theatre I dissent. 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. 494, 495 (1973) (Brennan, J., dissenting).

        Grayned v. City of Rockford, 408 U. S. 104, 108-109 (internal citations and quotations omitted). See also the cases cited id., at 108-109, nn. 3-5.

        Roth v. United States, 354 U. S. 476.

        Redrup v. New York, 386 U. S. 767. See the dissenting opinion of Mr. Justice Brennan in Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73, at 82-83.

       The Dean of the Columbia University School of Library Service predicted that as a result of these vague standards “booksellers as well as librarians will act as self-censors of their collections — out of fear.” Librarians Vote Smut Ruling Fund, New York Times, June 25, 1973, p. 46, col. 1. The Executive Secretary of the American Booksellers Association noted that the standards subject the legitimate bookseller to fear of prosecution because he would not know which books the local authorities might deem obscene. Ibid. An executive of the American Library Association has reported that thousands of books have been returned to suppliers because of the booksellers’ fear of prosecution. Ibid.

         Jenkins v. State, Georgia Supreme Court #27693, July 3, 1973. The movie, Carnal Knowledge, received an “R,” not an “X” rating from the Motion Picture Association of America. See No Evil, Time, July 16, 1973, p. 73. The President of the M. P. A. A., noting that the film is a “serious work/’ complained that the Court’s standards have left motion picture producers “in a no man’s land.” What the Court Has Done to Movies, New York Times, Aug. 17, 1973, p. 15, col. 1.


text:
    No. 72-1506.
    West v. Texas.
   Ct. Crim. App. Tex. 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.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted on charges of exhibiting allegedly obscene matter in violation of Tex. Penal Code, Art. 527, § 3 (Supp. 1972-1973), 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 prepares for distribution, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, 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 uncon-senting 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) (dissenting opinion). It is clear that, tested by that constitutional standard, Art. 527, § 3, 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 of the Texas Court of Criminal Appeals, and remand for further proceedings not inconsistent with my dissent in Paris Adult Theatre I. In that circumstance, I have no occasion to consider whether the questions presented in the petition merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).


text:
    No. 72-1524.
    Roth v. New Jersey.
   Super. Ct. N. J. 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 judgment of conviction.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted on charges of possession and sale of allegedly obscene and indecent publications in violation of New Jersey Stat. Ann. § 2A: 115-2 (1969), which provides as follows:

“Any person who, without just cause, utters or exposes to the view or hearing of another, or possesses with intent to utter or expose to the view or hearing of another, any obscene or indecent book, publication, pamphlet, picture, or any mechanical or electronic recording on a record, tape, wire or other device, or other representation however made or any person who shall sell, import, print, publish, loan, give away, or distribute or possess with intent to sell, print, publish, loan, give away, design, prepare, distribute, or offer for sale any obscene or indecent book, publication, pamphlet, picture or other representation, however made, or who in any way advertises the same, or in any manner, whether by recommendation against its use or otherwise, gives any information how or where any of the same may be had, seen, heard, bought or sold, is guilty of a misdemeanor.”

It is my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to uncon-senting 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, §2A: 115-2 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 of the Appellate Division of the Superior Court of New Jersey, and remand for further proceedings not inconsistent with my Paris Adult Theatre I dissent. 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).


text:
    No. 72-1646.
    Harding v. United States.
   C. A. 10th Cir. 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 federal obscenity regulation is prohibited by the First Amendment (see United States v. 12 200-Ft. Reels of Film, 413 U. S. 123, 130 (Douglas, J., dissenting)), would grant certio-rari in this case and reverse judgment of conviction.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted in the United States District Court for the District of Colorado on charges of using an express company for carriage of allegedly obscene matter in violation of 18 U. S. C. § 1462, which provides as follows:

“Whoever . . . knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—
“(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character
“Shall be fined not more than $5,000 or imprisoned not more than five years, or both . . .

I adhere to my dissent in United States v. Orito, 413 U. S. 139, 147 (1973), in which, speaking of 18 U. S. C. § 1462, I expressed the view that “[wjhatever the extent of the Federal Government’s power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional on its face.” Id., at 147-148. 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 Court of Appeals for the Tenth Circuit, and remand for further proceedings consistent with my dissent in Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73 (1973). 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).