414 U.S. 951
94 S.Ct. 287
38 L.Ed.2d 205
Judy PROCACCINI et al.v.Clarence JONES et al.
No. 73-212.
Supreme Court of the United States
October 23, 1973

The appeal is dismissed for want of a substantial federal question.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL concur, dissenting.


1
Appellants sought in the 44th Judicial District Court of Dallas County, Texas, to enjoin pending and future prosecutions uner Vernon's Ann.Texas Penal Code Art. 527, § 3, arising out of the seizure of motion picture films alleged to be 'obscene matter' within § 3. All parties agree that Texas law permits equitable intervention in a criminal proceeding if the criminal statute involved is unconstitutional, or otherwise void, and enforcement would result in irreparable injury to property rights. See State ex rel. Flowers v. Woodruff, 150 Tex.Cr.R. 255, 200 S.W.2d 178 (1947). Appellants challenged the constitutionality under the First, Fifth, and Fourteenth Amendments of Art. 527, § 9(h) of the Texas Penal Code, enacted as an aid to the enforcement of § 3, which is Texas' basic criminal obscenity statute. Section 9(h) provides as follows:


2
'In the event that a search warrant is issued and matter      alleged to be obscene is seized under the provisions of this      section, any person alleged to be in possession of the said      matter or claiming ownership of the matter at the time of its      possession or seizure may file a notice in writing with the      magistrate within 10 days of the date of the seizure alleging      that the matter is not obscene and the magistrate shall set a      hearing within one day after request therefor, or at such      time as the requesting party might agree, and at such hearing      evidence may be presented as to the obscenity of the matter      seized and at the conclusion of such additional hearing, the      magistrate shall make a further determination as to the      obscenity or nonobscenity of the matter. If at such hearing      the magistrate finds the matter to be obscene, then it shall      be returned to the person or persons from whom it was      seized.'


3
Obscenity for purposes of Art. 527 is defined in § 1:


4
'(A) 'Obscene' material means material (a) the dominant theme      of which, taken as a whole, appeals to a prurient interest;      (b) which is pattently offensive because it affronts      contemporary community standards relating to the description      or representation of sexual matters; and (c) which is utterly      without redeeming social value.


5
'(B) 'Prurient interest' means 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. If it appears from the character of the      material or the circumstances of its dissemination that the      subject matter is designed for a specially susceptible      audience, the appeal of the subject matter shall be judged      with reference to such audience.'


6
The 44th Judicial District Court denied appellants' request for relief. The Texas Court of Civil Appeals affirmed, holding that the appellants had failed to establish the unconstitutionality of § 9(h). Procaccini v. Jones, 488 S.W.2d 543 (Tex.Civ.App. 1972). The Supreme Court of Texas denied a writ of error and overruled a subsequent motion for rehearing.


7
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 supress 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) (dissenting opinion). Since it is clear that, when tested by that constitutional standard, the word 'obscene' in §§ 3 and 9(h), read as defined in § 1, renders §§ 3 and 9(h) unconstitutionally overbroad and therefore facially invalid, I disagree with the holding that the appeal does not present a substantial federal question, and therefore dissent from the Court's dismissal of the appeal.


8
For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47, 93 S.Ct. 2607, 37 L.Ed.2d 513 (1973), I would therefore vacate the judgment below and remand for further proceedings not inconsistent with my Paris Adult dissent. In that circumstance, I have no occasion to consider at this time whether, if § 1 were properly narrowed, appellants' challenge to the constitutionality of § 9(h) would 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).


9
Mr. Justice DOUGLAS, being of the view that the Fourteenth and Firth Amendments prohibit state obscenity regulation, would vacate the judgment below and remand for further proceedings consistent with his dissent in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70, 93 S.Ct. 2628, 37 L.Ed.2d 446.

