Rabe v. Washington

Background

A manager of a drive-in theater showed the film Carmen Baby, which contained sexually frank scenes but no explicit sexual consummation. A police officer watched the film from outside the theater fence on two evenings, obtained a warrant, and the manager was arrested under Washington’s criminal obscenity law, Wash. Rev. Code § 9.68.010. The State supreme court affirmed the conviction even though it did not clearly find the film obscene when shown to consenting adults indoors.

Reasoning

The Court addressed whether the statute gave fair notice that the place of exhibition could make the showing unlawful. The per curiam opinion held the statute was unconstitutionally vague as applied here because it did not mention that location or context would change legal liability. The Court reversed the conviction on due process grounds, noting a person cannot be punished for an offense the statute did not fairly describe.

Real world impact

The decision protects people from convictions when a criminal law fails to say that location matters. It limits prosecutions based on the way a film is displayed unless the law clearly puts exhibitors on notice about place-based restrictions. The ruling is narrow and does not resolve broader constitutional questions about obscenity in general.

Dissents or concurrances

Chief Justice Burger (joined by Justice Rehnquist) concurred in the judgment but stressed that a narrowly written law could bar public displays visible to highways, homes, or children, noting the film was viewable from nearby roads and residences.