Opinion · Supreme Court of the United States

Marks v. United States

430 U.S. 188

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1977-03-01
Topic
general

holding that because a federal obscenity statute was vague and sweeping, a Court decision relaxing constitutional standards on First Amendment protection of obscenity could not be applied retroactively | holding that because a federal obscenity statute was vague and sweeping, a Court decision relaxing constitutional standards on First Amendment protection of obscenity could not be applied retroactively | holding that Bouie’s retroactivity rule was implicated when the Supreme Court shifted from a narrow interpretation of obscenity laws to a broader one | holding that retroactive application of a new rule enlarging the scope of criminal liability violates the Due Process Clause | holding that narrowest position in support of the judgment is the Court's holding | holding that when a Court decision is the result of a plurality vote, we are to take the narrowest possible reading of the decision in light of the concurrences | ruling that, in a fragmented decision, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds” | holding that when five Justices do not agree on the same rationale explaining a Supreme Court decision, the holding is the position taken by those who concurred on the narrowest grounds | holding that a court's retroactive application of a Supreme Court decision violated the defendants’ due process rights, because the retrospective application punished conduct that had been considered innocent under prior law | holding that due process is violated if the trial court instructs the jury based on the current interpretation of a statute, rather than the interpretation that controlled at the time of the allegedly criminal acts | noting that the holding in a plurality decision is the position taken by Justices who concur on the narrowest grounds | holding retroactive application of Supreme Court case violated defendants’ due process rights because it punished conduct that had been considered innocent under previous case law | stating that the holding of a fragmented Court “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds” | noting that United States Supreme Court had announced new standards that significantly extended reach of federal obscenity statutes before deciding whether standards could be applied retroactively | stating that the holding of a fragmented Court “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds” | holding that the narrowest opinion of a fragmented Court controls | stating that the holding of a fragmented Court “may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ....” | explaining that in plurality decisions, court's holding is represented by the opinion whose reasoning provides the narrowest rationale supporting the court's judgment | explaining that with a fractured decision the holding of the Court is the “position taken by those Members who concurred in the judgments on the narrowest grounds” | explaining that with a fractured decision the holding of the Court is the “position taken by those Members who concurred in the judgments on the narrowest grounds” | holding violation of ex post facto clause prohibitions based on retroactive application of standards created judicially for interpretation of the statute which was basis of charge | explaining that the holding of the Court in a plurality opinion is the narrowest ground agreed upon by at least five Justices | explaining that the Due Process Clause protects against judicial infringement of the interests served by Ex Post Facto Clause | holding that the narrowest opinion of a fragmented Court controls | explaining that in plurality decisions, court’s holding is represented by the opinion whose reasoning provides the narrowest rationale supporting the court’s judgment | noting that, “the holdi

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MARKSv. UNITED STATES,430 U.S. 188(1977)
MARKS ET AL.v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 75-708.
Argued November 1-2, 1976
Decided March 1, 1977
Petitioners were convicted of transporting obscene materials in violation of a federal statute. The conduct that gave rise to the charge occurred beforeMillerv.California,413 U.S. 15, was decided, announcing new standards for "isolat[ing] `hard core' pornography from expression protected by the First Amendment."id., at 29.Held:The Due Process Clause of the Fifth Amendment precludes retroactive application to petitioners of theMillerstandards, to the extent that those standards may impose criminal liability for conduct not punishable under the standards announced inMemoirsv.Massachusetts,383 U.S. 413.Bouiev.City of Columbia,378 U.S. 347. Specifically, petitioners are entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved are "utterly without redeeming social value." At the same time, any constitutional principle announced inMillerthat would serve to benefit petitioners must be applied in their case.Hamlingv.United States,418 U.S. 87,102. Pp. 189-197.520 F.2d 913, reversed and remanded.

POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which STEWART and MARSHALL, JJ., joined,post, p. 197. STEVENS, J., filed an opinion concurring in part and dissenting in part,post, p. 198.
Robert Eugene Smithargued the cause for petitioners. With him on the brief wereGilbert H. DeitchandAndrewDennison.Solicitor General Borkargued the cause for the United States. With him on the brief wereAssistant Attorney GeneralThornburghandJerome M. Feit.
MR. JUSTICE POWELL delivered the opinion of the Court.
This case presents the question, not fully answered inHamlingv.United States,418 U.S. 87(1974), whether thePage 189standards announced inMillerv.California,413 U.S. 15(1973), are to be applied retroactively to the potential detriment of a defendant in a criminal case. We granted certiorari,424 U.S. 942(1976), to resolve a conflict in the Circuits.1
I
Petitioners were charged with several counts of transporting obscene materials in interstate commerce, in violation of18 U.S.C. § 1465, and with conspiracy to transport such materials,18 U.S.C. § 371. The conduct that gave rise to the charges covered a period through February 27, 1973.Page 190Trial did not begin until the following October. In the interim, on June 21, 1973, this Court decidedMillerv.California,supra, and its companion cases.2Millerannounced new standards for "isolat[ing] `hard core' pornography from expression protected by the First Amendment."413 U.S., at 29.3That these new standards would also guide the future interpretation of the federal obscenity laws was clear fromUnited Statesv.12 200-ft. Reels of Film,413 U.S. 123,129-130, and n. 7 (1973), decided the same day asMiller. SeeHamlingv.United States, supra, at 105, 113-114.

Petitioners argued in the District Court that they were entitled to jury instructions not underMiller, but under the more favorable formulation ofMemoirsv.Massachusetts,383 U.S. 413(1966) (plurality opinion).4Memoirs, in theirPage 191view, authoritatively stated the law in effect prior toMiller, by which petitioners charted their course of conduct. They focused in particular on the third part of theMemoirstest. Under it, expressive material is constitutionally protected unless it is "utterly without redeeming social value."383 U.S., at 418. UnderMillerthe comparable test is "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."413 U.S., at 24.Miller, petitioners argue, casts a significantly wider net thanMemoirs. To applyMillerretroactively, and thereby punish conduct innocent underMemoirs, violates the Due Process Clause of the Fifth Amendment — much as retroactive application of a new statute to penalize conduct innocent when performed would violate the Constitution's ban onex postfactolaws, Art. I, § 9, cl. 3; § 10, cl. 1. The District Court overruled these objections and instructed the jury under theMillerstandards. Petitioners were convicted,5and a divided Court of Appeals for the Sixth Circuit affirmed.6520 F.2d 913(1975). We now reverse.
II
TheEx Post FactoClause is a limitation upon the powers of the Legislature, seeCalderv.Bull, 3 Dall. 386 (1798), and does not of its own force apply to the Judicial Branch of government.Frankv.Mangum,237 U.S. 309,344(1915). But the principle on which the Clause is based — the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties — is fundamental to our concept of constitutional liberty. SeeUnited Statesv.Page 192Harriss,347 U.S. 612,617(1954);Lanzettav.New Jersey,306 U.S. 451,453(1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment. InBouiev.City of Columbia,378 U.S. 347(1964), a case involving the cognate provision of the Fourteenth Amendment, the Court reversed trespass convictions, finding that they rested on an unexpected construction of the state trespass statute by the State Supreme Court:
"[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like anex post factolaw, such as Art. I, § 10, of the Constitution forbids. . . . If a state legislature is barred by theEx Post FactoClause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction."Id., at 353-354.


Similarly, inRabev.Washington,405 U.S. 313(1972), we reversed a conviction under a state obscenity law because it rested on an unforeseeable judicial construction of the statute. We stressed that reversal was mandated because affected citizens lacked fair notice that the statute would be thus applied.

Relying onBouie, petitioners assert thatMillerand its companion cases unforeseeably expanded the reach of the federal obscenity statutes beyond what was punishable underMemoirs. The Court of Appeals rejected this argument. It noted — correctly — that theMemoirsstandards never commanded the assent of more than three Justices at any one time, and it apparently concluded from this fact thatMemoirsnever became the law. By this line of reasoning, one must judge whetherMillerexpanded criminal liability by looking not toMemoirsbut toRothv.United States,Page 193354 U.S. 476(1957), the last comparable plenary decision of this Court prior toMillerin which a majority united in a single opinion announcing the rationale behind the Court's holding.7Although certain language inRothformed the basis for the plurality's formulation inMemoirs, Roth's test for distinguishing obscenity from protected speech was a fairly simple one to articulate: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."354 U.S., at 489. If indeedRoth, notMemoirs, stated the applicable law prior toMiller, there would be much to commend the apparent view of the Court of Appeals thatMillerdid not significantly change the law.

But we think the basic premise for this line of reasoning is faulty. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . ."Greggv.Georgia,428 U.S. 153,169n. 15 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.). Three Justices joined in the controlling opinion inMemoirs. Two others, Mr. Justice Black and Mr. Justice Douglas, concurred on broader grounds in reversing the judgment below.383 U.S., at 421,424. They reiterated their well-known position that the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity. MR. JUSTICE STEWART also concurred in the judgment, based on his view that only "hardcore pornography" may be suppressed.Id., at 421. SeeGinzburgv.United States,383 U.S. 463,499(1966)Page 194(STEWART, J., dissenting). The view of theMemoirsplurality therefore constituted the holding of the Court and provided the governing standards. Indeed, every Court of Appeals that considered the question betweenMemoirsandMillerso read our decisions.8Materials were deemed to be constitutionally protected unless the prosecution carried the burden of proving that they were "utterly without redeeming social value," and otherwise satisfied the stringentMemoirsrequirements.Memoirstherefore was the law.Millerdid not simply clarifyRoth;it marked a significant departure fromMemoirs. And there can be little doubt that the third test announced inMiller— whether the work "lacks serious literary, artistic, political, or scientific value" — expanded criminal liability. The Court inMillerexpressly observed that the "utterly without redeeming social value" test places on the prosecutor "a burden virtually impossible to discharge under our criminal standards of proof."413 U.S., at 22. Clearly it was thought that some conduct which would have gone unpunished underMemoirswould result in conviction underMiller.Page 195

This case is not strictly analogous toBouie. The statutory language there was "narrow and precise,"378 U.S., at 352, and that fact was important to our holding that the expansive construction adopted by the State Supreme Court deprived the accused of fair warning. In contrast, the statute involved here always has used sweeping language to describe that which is forbidden.9But precisely because the statute is sweeping, its reach necessarily has been confined within the constitutional limits announced by this Court.Memoirsseverely restricted its application.Milleralso restricts its application beyond what the language might indicate, butMillerundeniably relaxes theMemoirsrestrictions.10The effect is the same as the new construction inBouie. Petitioners, engaged in the dicey business of marketing films subject to possible challenge, had no fair warning that their products might be subjected to the new standards.11Page 196

We have taken special care to insist on fair warning when a statute regulates expression and implicates First Amendment values. See,e. g., Buckleyv.Valeo,424 U.S. 1,40-41(1976);Smithv.Goguen,415 U.S. 566,573(1974). Section 1465 is such a statute. We therefore hold, in accordance withBouie, that the Due Process Clause precludes the application to petitioners of the standards announced inMillerv.California, to the extent that those standards may impose criminal liability for conduct not punishable underMemoirs. Specifically, since the petitioners were indicted for conduct occurring prior to our decision inMiller, they are entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved are "utterly without redeeming social value."12At the same time we reaffirm ourPage 197holding inHamlingv.United States,418 U.S., at 102, that "any constitutional principle enunciated inMillerwhich would serve to benefit petitioners must be applied in their case."13

Accordingly, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.14So ordered.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, concurring in part and dissenting in part.
I join the opinion of the Court insofar as it holds that the retroactive application of the definition of obscenity announced inMillerv.California,413 U.S. 15(1973), to the potential detriment of a criminal defendant, violates the Due Process Clause of the Fifth Amendment. SeeBouiev.City ofColumbia,378 U.S. 347(1964).

I cannot join, however, in the judgment remanding the case for a new trial. Petitioners were convicted of transporting obscene materials in interstate commerce in violation of18 U.S.C. § 1465. I adhere to the view that this statute is "`clearly overbroad and unconstitutional on its face.'" See,e. g., Cangianov.United States,418 U.S. 934,935(1974) (BRENNAN, J., dissenting), quotingUnited Statesv.Orito,Page 198413 U.S. 139,148(1973) (BRENNAN, J., dissenting). I therefore would simply reverse.
MR. JUSTICE STEVENS, concurring in part and dissenting in part.
There are three reasons which, in combination, persuade me that this criminal prosecution is constitutionally impermissible. First, as the Court's opinion recognizes, this "statute regulates expression and implicates First Amendment values."Ante, at 196. However distasteful these materials are to some of us, they are nevertheless a form of communication and entertainment acceptable to a substantial segment of society; otherwise, they would have no value in the marketplace. Second, the statute is predicated on the somewhat illogical premise that a person may be prosecuted criminally for providing another with material he has a constitutional right to possess. SeeStanleyv.Georgia,394 U.S. 557. Third, the present constitutional standards, both substantive and procedural,fn*which apply to these prosecutions are so intolerably vague that evenhanded enforcement of the law is a virtual impossibility. Indeed, my brief experience on the Court has persuaded me that grossly disparate treatment of similar offenders is a characteristic of the criminal enforcement of obscenity law. Accordingly, while I agree with everything said in the Court's opinion, I am unable to join its judgment remanding the case for a new trial.Page 199
  1. Page 189 Two Courts of Appeals have found instructions derived fromMillerappropriate in prosecutions based on conduct occurring before theMillerdecision came down:United Statesv.Marks,520 F.2d 913(CA6 1975) (the instant case); andUnited Statesv.Friedman,528 F.2d 784(CA10 1976), cert. pending, No. 75-1663. Three Courts of Appeals have reversed convictions whereMillerinstructions were given by the District Court:United Statesv.Wasserman,504 F.2d 1012(CA5 1974);United Statesv.Jacobs,513 F.2d 564(CA9 1974);United Statesv.Sherpix, Inc., 168 U.S.App.D.C. 121,512 F.2d 1361(1975). In two earlier cases both conduct and trial occurred prior toMiller, and the jury instructions were derived fromMemoirsv.Massachusetts,383 U.S. 413(1966) (plurality opinion).United Statesv.Thevis,484 F.2d 1149(CA5 1973) (Thevis I), cert. denied,418 U.S. 932(1974);United Statesv.Palladino,490 F.2d 499(CA1 1974). The Courts of Appeals there, foreshadowing to some extent our later decision inHamlingv.United States, held thatMillerdid not void allMemoirs-based convictions, but that on review appellants were entitled to all the benefits of both theMillerandMemoirsstandards. SeeHamling,418 U.S., at 102. In later cases presenting similar facts, the Fifth Circuit has applied its holding inThevis I. See,e. g., United Statesv.Linetsky,533 F.2d 192(1976);United Statesv.Thevis,526 F.2d 989(1976) (ThevisII), cert. denied,429 U.S. 928(1976). See alsoUnited Statesv.Hill,500 F.2d 733(CA5 1974), cert. denied,420 U.S. 952(1975). And the Ninth Circuit, followingHamling, has reached the same result.United Statesv.Cutting,538 F.2d 835(1976) (en banc), cert. denied,429 U.S. 1052(1977). ↩
  2. Page 190Paris Adult Theatre Iv.Slaton,413 U.S. 49(1973);Kaplanv.California,413 U.S. 115(1973);United Statesv.12 200-ft. Reels ofFilm,413 U.S. 123(1973);United Statesv.Orito,413 U.S. 139(1973). ↩
  3. Page 190Millerheld: "The basic guidelines for the trier of fact must be: (a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."413 U.S., at 24. Under part (b) of the test, it is adequate if the statute, as written or as judicially construed, specifically defines the sexual conduct, depiction of which is forbidden. The Court inMilleroffered examples of what a State might constitutionally choose to regulate: "(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. "(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."Id., at 25. ↩
  4. Page 190 The plurality inMemoirsheld that "three elements must coalesce" if material is to be found obscene and therefore outside the protection of the First Amendment: "[I]t must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standardsPage 191relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."383 U.S., at 418. ↩
  5. Page 191 Petitioner American News Co., Inc., was convicted only on the conspiracy charge. The other four petitioners were convicted of conspiracy and also on seven of the eight substantive counts. ↩
  6. Page 191 Both in its brief and at oral argument in this Court the United States contended that petitioners' convictions under theMillerstandards werePage 192improper, and consequently the Government does not defend the judgment of the Court of Appeals on this issue but agrees with petitioners that their convictions should not stand. ↩
  7. Page 193 Shortly afterMemoirs, in response to the divergence of opinion among Members of the Court, the Court began the practice of disposing of obscenity cases in briefper curiamdecisions.Redrupv.New York,386 U.S. 767(1967), was the first. At least 31 cases were decided in this fashion. They are collected inParis Adult Theatre Iv.Slaton,413 U.S., at 82-83, n. 8 (BRENNAN, J., dissenting). ↩
  8. Page 194 See,e. g., Books, Inc. v.United States,358 F.2d 935(CA1 1966), rev'dper curiam,388 U.S. 449(1967);United Statesv.35 Mm.Motion Picture Film,432 F.2d 705(CA2 1970), cert. dismissedsub nom.United Statesv.Unicorn Enterprises, Inc.,403 U.S. 925(1971);UnitedStatesv.Ten Erotic Paintings,432 F.2d 420(CA4 1970);United Statesv.Groner,479 F.2d 577(CA5) (en banc) (the seven dissenting judges and one judge concurring in the result — constituting a majority on this issue — found thatMemoirsstated the governing standard), vacated and remanded for further consideration in light ofMiller,414 U.S. 969(1973);United Statesv.Pellegrino,467 F.2d 41(CA9 1972);South-easternPromotions, Ltd. v.Oklahoma City,459 F.2d 282(CA10 1972);Huffmanv.United States, 152 U.S. App. D. C 238,470 F.2d 386(1971), conviction reversed on other grounds upon rehearing afterMiller, 163 U.S.App.D.C. 417,502 F.2d 419(1974). Cf.Grove Press, Inc. v.City of Philadelphia,418 F.2d 82(CA3 1969);Cinecom TheatersMidwest States, Inc. v.City of Fort Wayne,473 F.2d 1297(CA7 1973);Lurosv.United States,389 F.2d 200(CA8 1968). ↩
  9. Page 195 The statute provides in pertinent part: "Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both."18 U.S.C. § 1465. ↩
  10. Page 195 For this reason, the instant case is different fromRosev.Locke,423 U.S. 48(1975), where the broad reading of the statute at issue did not upset a previously established narrower construction. ↩
  11. Page 195 InHamlingwe rejected a challenge based onBouiev.City ofColumbia, ostensibly similar to the challenge that is sustained here.418 U.S., at 115-116. But the similarity is superficial only. There the petitioners focused on part (b) of theMillertest. See n. 3,supra. They argued that their convictions could not stand becauseMillerrequires that the categories of material punishable under the statute must be specifically enumerated in the statute or in authoritative judicial construction. No such limiting construction had been announced at the time they engaged in the conduct that led to their convictions. We held that this made out no claim underBouie, for part (b) did not expand the reach of the statute. "[T]he enumeration of specific categories of material inMillerPage 196which might be found obscene did not purport to make criminal, for the purpose of18 U.S.C. § 1461, conduct which had not previously been thought criminal."418 U.S., at 116. For the reasons noted in text, the same cannot be said of part (c) of theMillertest, shifting from "utterly without redeeming social value" to "lacks serious literary, artistic, political or scientific value." This was implicitly recognized by the Court inHamlingitself. There the trial took place beforeMiller, and the jury had been instructed in accordance withMemoirs. Its verdict necessarily meant that it found the materials to be utterly without redeeming social value. This Court examined the record and determined that the jury's verdict "was supported by the evidence and consistent with theMemoirsformulation of obscenity."418 U.S., at 100. We did not avoid that inquiry on the ground thatMemoirshad no relevance, as we might have done ifMillerapplied retroactively in all respects. ↩
  12. Page 196 The Court of Appeals stated, apparently without viewing the materials,520 F.2d, at 923n. 1 (McCree, J., dissenting), that in its opinion the materials here were obscene under eitherMemoirsorMiller.520 F.2d, at 922. Such a conclusion, absent other dependable means of knowing the character of the materials, is of dubious value. But even if we accept the court's conclusion, under these circumstances it is not an adequate substitute for the decision in the first instance of a properlyPage 197instructed jury, as to this important element of the offense under18 U.S.C. § 1465. ↩
  13. Page 197 The Court of Appeals apparently thought that our remand inMillerand the companion cases necessarily meant thatMillerstandards were fully retroactive.520 F.2d, at 920. But the passage fromHamlingquoted in the text, which simply reaffirms a principle implicit inMiller, makes it clear that the remands carried no such implication. Our 1973 cases were remanded for the courts below to apply the "benefits" ofMiller. See n. 3,supra. ↩
  14. Page 197 In view of our disposition of the case, we have no occasion to reach the other questions presented in the petition. ↩
  15. Page 198 How, for example, can an appellate court intelligently determine whether a jury has properly identified the relevant community standards? ↩