Marshall Et Al. v. Ohio; And Kensinger v. Ohio

1974-12-16

Headline: Court dismissed appeals by a newspaper and an individual convicted for possessing allegedly obscene materials, leaving Ohio’s obscenity convictions and law in place and vacating earlier temporary stays.

Holding: The appeals were dismissed for want of a substantial federal question; earlier stays were vacated and the Ohio convictions remain in place.

Real World Impact:

Leaves Ohio convictions for possessing allegedly obscene materials intact for the named defendants.
Vacates prior temporary stays, allowing state enforcement to proceed.
Raises chance of state prosecutions continuing without new federal review.

Topics: obscenity law, freedom of expression, state criminal enforcement, community standards

Summary

Background

Appellants included an individual and a newspaper company who were convicted in Ohio for possession of allegedly obscene materials with intent to distribute under Ohio Rev. Code § 2905.35, which incorporated the statute’s definition of “obscene” in § 2905.34. The Court of Appeals affirmed those convictions, and the Ohio Supreme Court dismissed the appeals. Temporary stays that had blocked enforcement were earlier granted and later vacated.

Reasoning

The Supreme Court’s action was to dismiss the appeals for want of a substantial federal question and to vacate the previously granted stays, effectively leaving the state-court convictions and the Ohio obscenity statute in place. The opinion does not resolve the constitutional merits of the obscenity definition. Separate opinions noted disagreement: Justice Brennan (joined by two others) argued the Ohio law was overbroad and should be reviewed and reversed, and Justice Douglas would have held that any ban or regulation of obscenity is unconstitutional.

Real world impact

Because the Court dismissed the appeals, the Ohio convictions remain effective and state prosecutors may proceed unless other relief is obtained. The ruling is not a final decision on the constitutional limits of obscenity regulation; dissenting Justices urged further review and suggested defendants might deserve new trials under local community standards. This outcome means the substantive constitutional questions about the statute were left for another day.

Dissents or concurrances

Justice Brennan’s dissent said the statute was facially overbroad and urged reversal; Justice Douglas would have summarily reversed as well.