Ct. Crim. App. Ala. Reported below: 353 So. 2d 528 and 534.
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 City 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.