Marks v. United States (430 U.S. 188)

Petitioners were convicted of transporting obscene materials in violation of a federal statute. The conduct that gave rise to the charge occurred before Miller v. 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 the Miller standards, to the extent that those standards may impose criminal liability for conduct not punishable under the standards announced in Memoirs v. Massachusetts, 383 U.S. 413. Bouie v. 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 in Miller that would serve to benefit petitioners must be applied in their case. Hamling v. 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 Smith argued the cause for petitioners. With him on the brief were Gilbert H. Deitch and Andrew Dennison.

Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney General Thornburgh and Jerome M. Feit.