Sherwin Et Al. v. United States

Background

Two men, Richard Sherwin and Ronald Coryell, were convicted in federal court in the Central District of California for multiple counts of knowingly transporting allegedly obscene materials by common carrier across state lines under federal statutes. The Ninth Circuit overturned some counts but affirmed three convictions and Sherwin’s conviction for conspiracy. The men asked the Court to decide whether a standard that allows obscenity convictions based merely on knowing the materials’ “sexual orientation” improperly chills speech protected by the First Amendment.

Reasoning

The full Court denied review of the case, so the Ninth Circuit’s affirmances remain in effect. The opinion record contains no majority explanation because certiorari was denied. Justice Brennan, joined by Justices Stewart and Marshall, wrote a dissent saying the question deserved full review and arguing he would either hear argument or summarily reverse the convictions. Thus, while some Justices saw a serious constitutional question, the Court as a whole declined to act here.

Real world impact

Because the Court refused to review the case, the affirmed convictions and sentence for transporting allegedly obscene materials and the conspiracy count stand for now. That outcome keeps criminal exposure for people who ship or distribute sexually explicit materials across state lines. The denial is not a final ruling on the constitutional question; future litigation could reach the Court and change the legal standards.

Dissents or concurrances

Justice Brennan’s dissent, joined by two colleagues, explained he would grant review or reverse, highlighting concerns that the scienter standard might chill protected expression and citing related pending cases for comparison.