McKinney v. City of Birmingham

Background

A group of people were convicted in a Jefferson County trial court for selling or showing allegedly obscene material under a Birmingham ordinance that banned exhibiting or selling "obscene" matter. The ordinance defined "obscene" by reference to what an average person would find prurient under contemporary standards. The state appellate court affirmed the convictions and requests for higher review were denied, after which the Supreme Court denied further review.

Reasoning

The main constitutional question raised was whether governments may broadly suppress sexually oriented materials when they are not distributed to minors or forcibly exposed to unwilling adults. Justice Brennan, joined by two other Justices, explained that the First and Fourteenth Amendments bar wholesale suppression of such materials in those circumstances and concluded that the Birmingham ordinance was overbroad and invalid on its face. He said he would have granted review and reversed the convictions, but the Court declined to take that step, leaving the convictions intact for now.

Real world impact

As a result of the Court’s denial of review, the local criminal convictions remain in place and sellers or exhibitors of adult material in Birmingham continue to face prosecution under the ordinance. The dissent warned that defendants should have an opportunity to challenge the legal standard and possibly receive new trials applying local community standards, so the legal status of similar prosecutions could still change in later proceedings.

Dissents or concurrances

Justice Brennan’s dissent argued the ordinance was unconstitutional for being too broad and urged vacating the judgments and remanding to consider retrials under local community standards.