Kinney v. Parsons
Decision Date | 11 November 1975 |
Docket Number | No. 75-428,75-428 |
Citation | 423 U.S. 960,46 L.Ed.2d 289,96 S.Ct. 376 |
Parties | Chester McKINNEY v. James C. PARSONS, Chief of Police |
Court | U.S. Supreme Court |
On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, being of the view, stated in previous opinions by himself2 and by Mr. Justice BLACK,3 that any state ban on, or regulation of, obscenity abridges freedom of speech and of the press contrary to the First Amendment, would grant certiorari and summarily reverse.
Petitioner was convicted in the Circuit Court of Jefferson County, Ala., of violating the obscenity ordinance of the city of Birmingham. Birmingham Ordinance No. 67-2, § 3, provides in pertinent part:
'It shall be unlawful for any person to knowingly . . . exhibit, distribute or have in his possession with intent to distribute, exhibit, sell or offer for sale . . . any obscene matter.'
As used in Ordinance No. 67-2, 'obscene' meant at the time of the alleged offenses:
'that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., 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.' Id., § 1.
On direct appeal, the Alabama Court of Criminal Appeals dismissed when petitioner's appellate brief was untimely filed. Petitions for writs of certiorari were filed with the Supreme Court of Alabama and denied. A petition for a writ of certiorari was filed with this Court and denied for the reason that the judgment below rested upon an adequate state ground. 409 U.S. 895, 93 S.Ct. 117, 34 L.Ed.2d 152 (1972). Thereafter, a petition for habeas corpus relief was filed in the United States District Court for the Northern District of Alabama. Habeas relief was ultimately denied, and on appeal the Fifth Circuit affirmed.
It is my view that 'at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents.' Paris Adult Theatre I v. Slaton, 413 U.S. 49, 113, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (Brennan, Jr., dissenting). It is clear that, tested by that constitutional standard, Ordinance No. 67-2 as it existed at the time of the alleged offense was constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), I would therefore grant certiorari, vacate the judgment, and remand the case for further proceedings not inconsistent with may dissent in Paris Adult Theatre I, supra. See Wasserman v. Municipal Court of Alhambra Judicial...
To continue reading
Request your trial- Reed v. Rhodes
-
United States ex rel. Means v. Solem
..."breathing space" for first amendment rights. McKinney v. Parsons, 513 F.2d 264, 269-70 (5th Cir. 1975), cert. denied 423 U.S. 960, 96 S.Ct. 376, 46 L.Ed.2d 289 (1975) (denying writ of habeas corpus because statute was not Petitioner's exhausted claims20 in this matter are relative to groun......
-
Chambers v. State
...Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); McKinney v. Parsons, 513 F.2d 264 (5th Cir.), cert. denied, 423 U.S. 960, 96 S.Ct. 376, 46 L.Ed.2d 289 (1975); Piggly-Wiggly of Jacksonville, Inc. v. City of Jacksonville, 336 So.2d 1078 (Ala.1976); Bolin v. State, 266 Ala. 256, 96 S......
- Reed v. Rhodes, C-73-1300.