Cain v. Kentucky/Dissent Harlan

Mr. Justice HARLAN, dissenting.

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, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (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 Jacobillis v. Ohio, 378 U.S. 184, 203, 84 S.Ct. 1676, 12 L.Ed.2d 793 (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.