Opinion
No. 347.
Decided March 23, 1970
437 S.W.2d 769, reversed.
Edmund C. Grainger, Jr., and James E. Thornberry for appellants.
John B. Breckinridge, Attorney General of Kentucky, and John B. Browning, Assistant Attorney General, for appellee.
The judgment is reversed. Redrup v. New York, 386 U.S. 767.
In my view we should not inflexibly deny to each of the States the power to adopt and enforce its own standards as to obscenity and pornographic materials; States ought to be free to deal with varying conditions and problems in this area. I am unwilling to say that Kentucky is without power to bar public showing of this film; therefore, I would affirm the judgment from which the appeal is taken.
If this case involved obscenity regulation by the Federal Government, I would unhesitatingly reverse the conviction, for the reasons stated in my separate opinion in Roth v. United States, 354 U.S. 476, 496 (1957). Even in light of the much greater flexibility that I have always thought should be accorded to the States in this field, see, e.g., my dissenting opinion in Jacobellis v. Ohio, 378 U.S. 184, 203 (1964), suppression of this particular film presents a borderline question. However, laying aside my own personal estimate of the film, I cannot say that Kentucky has exceeded the constitutional speed limit in banning public showing of the film within its borders, and accordingly I vote to affirm the judgment below.