Robinson v. City of Birmingham, 77-1339

• Decision Date: 30 May 1978
• Docket Number: No. 77-1339,77-1339
• Citation: 436 U.S. 932,56 L.Ed.2d 777,98 S.Ct. 2833
• Parties: Michael ROBINSON v. CITY OF BIRMINGHAM
• Court: U.S. Supreme Court

436 U.S. 932

98 S.Ct. 2833

56 L.Ed.2d 777

Michael ROBINSON

v CITY OF BIRMINGHAM

No. 77-1339

Supreme Court of the United States

May 30, 1978

On petition for writ of certiorari to the Court of Criminal Appeals of Alabama.

The petition for a writ of certiorari is denied.

Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.

Petitioner was convicted of two separate offenses of knowingly and unlawfully exhibiting an allegedly obscene motion picture film under Birmingham City Ordinance No. 67-2, § 3. He was sentenced to pay a fine of $300 and perform hard labor for the city of Birmingham for 180 days on the first conviction and to pay a fine of $150 and perform hard labor for 90 days on the second. Prior to each trial, petitioner moved to suppress the film involved on the ground that the warrant for the seizure of the film was improper in that the magistrate who issued the warrant had not first viewed the film to ensure that there was probable cause to believe the film was obscene. In each case the motion to suppress was denied and these rulings were affirmed on appeal.

Birmingham City Ordinance No. 67-2, § 3, under which petitioner was convicted, provides:

"It shall be unlawful for any person to knowingly publish, print, exhibit, distribute or have in his possession with intent to distribute, exhibit, sell or offer for sale, in the city or the police jurisdiction thereof, any obscene matter." Brief in Opposition 3.

Birmingham ity Ordinance No. 74-18, which authorizes the issuance of warrants to seize allegedly obscene material, provides:

"Section 1. The following words and terms, shall when used in this ordinance, have the following respective meanings:

"A. 'Obscene Motion Picture': A motion picture which to the average person, applying contemporary community standards, the predominant appeal of which motion picture taken as a whole is to prurient interest, that is, a shameful or morbid interest in sexual conduct, nudity or excretion, and depicts or describes in a patently offensive manner sexual conduct, which motion picture taken as a whole lacks serious literary, artistic, political or scientific value.

* * * * * "Section 2. Search warrants for the seizures as evidence of motion picture films alleged to be obscene as defined herein and to have been exhibited publicly in the City . . . in violation of Ordinance Number 67-2 . . . may be issued by a Recorder or by a Magistrate as hereinafter provided in this ordinance.

"Section 3. Any police officer of the City or other individual who shall accuse any person of publicly exhibiting in the City . . . an obscene motion picture film in violation of said Ordinance Number 67-2 . . . may appear before a Recorder or Magistrate and testify under oath to the facts upon which he bases such accusation . . . .

"Section 4. If such Recorder or Magistrate determines from said affidavit or affidavits . . . that there is probable cause to believe such motion picture film is obscene, he shall proceed to issue a search warrant for the seizure of said motion picture film and a warrant for the arrest of the person or persons accused of publicly exhibiting the same in the City . . . in...