Marler v. California

Background

A person was convicted in the San Diego Municipal Court for selling obscene materials under California Penal Code Ann. § 311.2 (West 1970). The Appellate Department of the San Diego County Superior Court affirmed that conviction in an unpublished decision. The Supreme Court denied review of the case, leaving the state-court judgment in place.

Reasoning

The core question in this filing was whether the California obscenity statute can be applied to criminally punish the sale of the material at issue. Justice Brennan, joined by Justices Stewart and Marshall, wrote a dissent saying he would reverse the conviction. He explained that he follows his earlier view from Miller v. California (1973) that this statute is "unconstitutionally overbroad, and therefore invalid on its face." He also cited a string of cases where he wrote similar dissents, noting his consistent opposition to enforcement of the statute as written.

Real world impact

Because the Supreme Court declined to take the case, the seller's conviction remains affirmed and enforceable in this instance. That outcome means the state may continue to use the statute as a basis for prosecutions like this one. At the same time, Justice Brennan's dissent highlights continuing disagreement among members of the Court about whether the statute should stand, leaving the broader constitutional question unsettled.

Dissents or concurrances

Justice Brennan's dissent, joined by two other Justices, explicitly calls for reversal and cites multiple prior dissents and cases that reflect his view that the statute is facially invalid.