Rabe v. Washington 8212 247, No. 71

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM; BURGER
Citation405 U.S. 313,92 S.Ct. 993,31 L.Ed.2d 258
PartiesWilliam RABE, Petitioner, v. State of WASHINGTON. —247
Decision Date20 March 1972
Docket NumberNo. 71

405 U.S. 313
92 S.Ct. 993
31 L.Ed.2d 258
William RABE, Petitioner,

v.

State of WASHINGTON.

No. 71—247.
Argued Feb. 29, 1972.
Decided March 20, 1972.
Rehearing Denied April 24, 1972.

See 406 U.S. 911, 92 S.Ct. 1604.

William L. Dwyer, Seattle, Wash., for petitioner.

Curtis Ludwig, Kennewick, Wash., for respondent.

PER CURIAM.

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, con-

Page 314

taining sexually frank scenes but no instances of sexual consummation are explicitly portrayed. After reviewing 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, 92 S.Ct. 228, 30 L.Ed.2d 181. 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.'

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, 77 S.Ct. 1304, 1 L.Ed.2d 1498; A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. Uncertain 'whether the movie was offensive to the standards relating to sexual matters in that area and whether

Page 315

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 certain conduct is proscribed. The statute under which petitioner was prosecuted, however, made no mention...

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83 practice notes
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...of the context or location of the sale or exhibition of allegedly obscene materials is unconstitutional under Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 Defendant has incorrectly applied Rabe to the facts before us. Rabe does not hold that a defendant's conduct or the ma......
  • Cine-Com Theatres Eastern States, Inc. v. Lordi, Civ. A. No. 911-72.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • November 20, 1972
    ...the merits, but rather on the denial of certiorari. 13 Memoirs has been favorably referred to by the Supreme Court in Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972) and has been adopted as well by Circuit Courts. See e. g., United States, v. A Motion Picture Film, 404......
  • Richey v. Mitchell, No. 01-3477.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 25, 2005
    ...Process Clause when both the plain text of the statute and prior state court decisions instructed otherwise); see also Rabe v. Washington, 405 U.S. 313, 316, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972) (reversing as violative of the Due Process Clause a state law conviction that rested on unforesee......
  • Osborne v. Ohio, No. 88-5986
    • United States
    • United States Supreme Court
    • April 18, 1990
    ...of the photographs at issue was proscribed. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894; Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258; and Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260, distinguished. Shuttlesworth v. Birming......
  • Request a trial to view additional results
82 cases
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...of the context or location of the sale or exhibition of allegedly obscene materials is unconstitutional under Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 Defendant has incorrectly applied Rabe to the facts before us. Rabe does not hold that a defendant's conduct or the ma......
  • Cine-Com Theatres Eastern States, Inc. v. Lordi, Civ. A. No. 911-72.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • November 20, 1972
    ...the merits, but rather on the denial of certiorari. 13 Memoirs has been favorably referred to by the Supreme Court in Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972) and has been adopted as well by Circuit Courts. See e. g., United States, v. A Motion Picture Film, 404......
  • Richey v. Mitchell, No. 01-3477.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 25, 2005
    ...Process Clause when both the plain text of the statute and prior state court decisions instructed otherwise); see also Rabe v. Washington, 405 U.S. 313, 316, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972) (reversing as violative of the Due Process Clause a state law conviction that rested on unforesee......
  • Osborne v. Ohio, No. 88-5986
    • United States
    • United States Supreme Court
    • April 18, 1990
    ...of the photographs at issue was proscribed. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894; Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258; and Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260, distinguished. Shuttlesworth v. Birming......
  • Request a trial to view additional results
1 books & journal articles
  • The Supreme Court of the United States, 1971-1972
    • United States
    • Political Research Quarterly Nbr. 25-4, December 1972
    • December 1, 1972
    ...that a movie fitfor exhibition in an indoor theater to adults could not be shown in a drive-in theater. In Rabe v. State of Washington (405 U.S. 313; 92 S. Ct. 993) with a per opinion the Court held that there was vagueness in the statute. &dquo;We hold simplythat a State may not criminally......

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