405 U.S. 313 (1972), 71-247, Rabe v. Washington

Docket Nº:No. 71-247
Citation:405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258
Party Name:Rabe v. Washington
Case Date:March 20, 1972
Court:United States Supreme Court

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405 U.S. 313 (1972)

92 S.Ct. 993, 31 L.Ed.2d 258




No. 71-247

United States Supreme Court

March 20, 1972

Argued February 29, 1972



Petitioner was convicted of violating Washington's obscenity statute for showing a sexually frank motion picture at a drive-in theater. In affirming his conviction, the Washington Supreme Court did not hold that the film was obscene under the standards of Roth v. United States, 354 U.S. 476, and Memoirs v. Massachusetts, 383 U.S. 413, but that it was obscene in "the context of its exhibition" at a drive-in. The statute proscribing the knowing display of "obscene" films did not mention the location of the exhibition as an element of the offense.

Held: A State may not criminally punish the exhibition of a motion picture film at a drive-in theater where the statute assertedly violated has not given fair notice that the location of the exhibition was a vital element of the offense.

79 Wash.2d 254, 484 P.2d 917, reversed.

Per curiam opinion.


Petitioner was the manager of the Park Y Drive-In Theatre in Richland, Washington, where the motion picture Carmen Baby was shown. The motion picture is a loose adaptation of Bizet's opera Carmen, containing

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sexually frank scenes, but no instances of sexual consummation are explicitly portrayed. After viewing the film from outside the theater fence on two successive evenings, a police officer obtained a warrant and arrested petitioner for violating Washington's obscenity statute. Wash.Rev.Code § 9.68.010. Petitioner was later convicted and, on appeal, the Supreme Court of Washington affirmed. 79 Wash.2d 254, 484 P.2d 917 (1971). We granted certiorari. 404 U.S. 909. We reverse petitioner's conviction.

The statute under which petitioner was convicted, Wash.Rev.Code § 9.68.010, made criminal the knowing display of "obscene" motion pictures:

Every person who --

(1) Having knowledge of the contents thereof shall exhibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene; or

(2) Having knowledge of the contents thereof shall cause to be performed or exhibited, or shall engage in the performance or exhibition of any show, act, play, dance or motion picture which is obscene;

Shall be guilty of a gross misdemeanor.

[92 S.Ct. 994] In affirming petitioner's conviction, however, the Supreme Court of Washington did not hold that Carmen Baby was obscene under the test laid down by this Court's prior decisions. E.g., Roth v. United States, 354 U.S. 476; Memoirs v. Massachusetts, 383 U.S. 413. Uncertain

whether the movie was offensive to the standards relating to sexual matters in that area and whether

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the movie advocated ideas or was of artistic or literary value,

the court concluded that, if it

were to apply the strict rules of Roth, the film "Carmen Baby" probably would pass the definitional obscenity test if the viewing audience consisted only of consenting adults.

79 Wash.2d at 263, 484 P.2d at 922. Respondent read the opinion of the Supreme Court of Washington more narrowly, but nonetheless implied that, because the film had "redeeming social value," it was not, by itself, "obscene" under the Roth standard. The Supreme Court of Washington nonetheless upheld the conviction, reasoning that in "the context of its exhibition," Carmen Baby was obscene. Ibid.

To avoid the constitutional vice of vagueness, it is necessary, at a minimum, that a statute give fair notice that...

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