Winslow v. Virginia

1974-10-21

Headline: Court refuses to review a Virginia obscenity conviction, leaving a seller’s conviction for distributing allegedly sexually explicit materials in place while three Justices dissent that the law is overbroad.

Holding: The Court refused to hear the appeal, leaving a Virginia seller’s conviction for selling allegedly obscene material in place, despite three Justices who would have reversed the conviction as constitutionally overbroad.

Real World Impact:

Leaves the seller’s conviction intact in Virginia.
Allows Virginia prosecutions under the same statute to continue unless changed.
Three Justices argued the law is facially invalid and would have reversed.

Topics: obscenity laws, freedom of expression, state criminal law, sexual content regulation

Summary

Background

A man was convicted in the Corporation Court of Norfolk, Virginia, for selling and distributing an allegedly obscene movie and an allegedly obscene magazine. Virginia law (§18.1-228) makes it a misdemeanor to sell or distribute "obscene" items, and §18.1-227 defines "obscene" by appeal to prurient interest and exceeding customary candor. The Supreme Court of Virginia affirmed the conviction. The U.S. Supreme Court previously vacated and remanded the case for reconsideration after Miller v. California; the Virginia court affirmed again, and the Supreme Court then denied further review.

Reasoning

The majority of the Court refused to hear the case, so it did not decide the constitutional question. In a dissent, three Justices argued that, except for distribution to minors or forced exposure of unwilling adults, the First and Fourteenth Amendments bar the government from wholly suppressing sexually oriented material based on alleged obscenity. Those Justices said the Virginia statute’s broad definition of "obscene" goes beyond what the Constitution allows and is therefore invalid on its face.

Real world impact

Because the Court declined review, the Norfolk conviction and similar state prosecutions under this statute remain in effect for now. Sellers and distributors of sexually explicit material in Virginia may still face criminal penalties unless future courts or legislatures change the law. The case did not produce a nationwide ruling, and the constitutional issues remain unsettled.

Dissents or concurrances

Justice Brennan, joined by Justices Stewart and Marshall, would have reversed. Justice Douglas separately said any state or federal ban on obscenity is unconstitutional and would have summarily reversed.