Fort v. City of Miami/Dissent Stewart

Mr. Justice STEWART, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.

The petitioner created six fiberglass statues which he offered for sale in his backyard. Two police officers approached his home, confiscated the statues, and arrested him for violating a municipal ordinance that prohibits the knowing possession of obscene figures or images for sale.

The petitioner was convicted, his conviction was affirmed, and the Florida District Court of Appeal denied certiorari. Unable to obtain review in any higher Florida court, he brought to this Court the federal constitutional claims he had unsuccessfully advanced at every stage of the state litigation.

It is clear that the ordinance under which he was convicted is unconstitutional on its face. That ordinance adopts the definition of obscenity embodied in a Florida statute:

Members of this Court have expressed differing views as to the extent of a State's power to suppress 'obscene' material through criminal or civil proceedings. But it is at least established that a State is without power to do so upon the sole ground that the material 'appeals to prurient interest.'

The petitioner in this case was charged, tried, and convicted under a statutory provision which contains no other criterion of 'obscenity.' This conviction therefore rests upon a law incompatible with the guarantees of the First and Fourteenth Amendments of the United States Constitution.

I would grant the petition for certiorari and reverse the judgment.