418 U.S. 917
94 S.Ct. 3207
41 L.Ed.2d 1160
James M. TRINKLERv.State of ALABAMA.
No. 73-844.
Supreme Court of the United States
July 25, 1974

On remand, remanded to the Circuit Court of Montgomery County, 302 so.2d 125.
On petition for writ of certiorari to the Court of Criminal Appeals of Alabama.
The petition for a writ of certiorari is granted, the judgment is vacated and the case is remanded to the Court of Criminal Appeals of Alabama for further consideration in light of Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), and Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974).
Mr. Justice DOUGLAS, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70-73, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (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 in the Circuit Court of Montgomery County, Alabama, of selling allegedly obscene matter in violation of Title 14, § 374(4), Code of Alabama, 1940, which provides in pertinent part as follows:
'Every person who, with knowledge of its contents, . . .      sells . . . any obscene printed or written matter . . . shall      be guilty of a misdemeanor. . . .'
'Obscene,' for purposes of § 374(4), is defined in § 374(3) as meaning 'lewd, lascivious, filthy and pornographic and that to the average person, applying contemporary community standards, its dominant theme taken as a whole appeals to prurient interest.' The Alabama Court of Criminal Appeals affirmed the conviction.
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, J., dissenting). It is clear that, tested by that constitutional standard, § 374(4), as it incorporates the definition of 'obscene' in § 374(3), is constitutionally overbroad and therefore invalid on its face. For the resons stated in my dissenting opinion in Millr 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 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 at this time whether the other questions presented in the petition merit plenary review. See Heller v. New York, 413 U.S. 483, 494, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973) (Brennan, J., dissenting).



*
 Although four of us would grant and reverse, the Justices who join this opinion do not insist that the case be decided on the merits.


