Walker v. Ohio/Dissent Burger

Mr. Chief Justice BURGER, dissenting.

The trial court, endeavoring to apply the standards articulated by this Court, held that the materials in question are obscene within the meaning of the relevant Ohio statute. This conclusion rested on findings that the materials are patently offensive to contemporary community standards relating to the description or representation of sexual matters; that, when taken as a whole, their dominant theme appeals to the prurient interest of the reader; and that they are utterly without redeeming social value. The Ohio appellate courts declined to disturb that judgment. Yet today the Court reverses citing only Redrup.

I dissent from such a summary disposition, not only for the reasons expressed in my dissenting opinion in Cain v. Kentucky, 397 U.S. 319, 90 S.Ct. 1110, 25 L.Ed.2d 335 (1970), but also because I find no justification, constitutional or otherwise, for this Court's assuming the role of a supreme and unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before it without regard to the findings or conclusions of other courts, state or federal. That is not one of the purposes for which this Court was established.

Mr. Justice HARLAN, for reasons expressed in his opinions in Roth v. United States, 354 U.S. 476, 496, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Jacobellis v. Ohio, 378 U.S. 184, 203, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); and A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General or Com. of Massachusetts, 383 U.S. 413, 455, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), would leave the judgment of the state court undisturbed.

Mr. Justice MARSHALL and Mr. Justice BLACKMUN took no part in the consideration or decision of this case.