Marks v. United States (430 U.S. 188)/Concurrence-dissent Brennan

Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join, concurring in part and dissenting in part.

I join the opinion of the Court insofar as it holds that the retroactive application of the definition of obscenity announced in Miller v. California, 413 U.S. 15 (1973), to the potential detriment of a criminal defendant, violates the Due Process Clause of the Fifth Amendment. See Bouie v. City of Columbia, 378 U.S. 347 (1964).

I cannot join, however, in the judgment remanding the case for a new trial. Petitioners were convicted of transporting obscene materials in interstate commerce in violation of 18 U.S.C. §1465. I adhere to the view that this statute is "'clearly overbroad and unconstitutional on its face.'" See, e. g., Cangiano v. United States, 418 U.S. 934, 935 (1974) (Brennan, J., dissenting), quoting United States v. Orito, 413 '''[p. 198]''' U.S. 139, 148 (1973) (Brennan, J., dissenting). I therefore would simply reverse.