SHERWIN ET AL.
v.
UNITED STATES

U.S. | 1978-06-19
No. 77-1196
with whom Mr. Justice Stewart and Mr. Justice Marshall join,
437 U.S. 909 Supreme Court of the United States (1978) Caution
Cited by 24 cases
Topics
Chilling Effect On Speech Obscenity First Amendment Conspiracy

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Dissent
Mr. Justice Brennan,

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join,

dissenting.

Petitioners were convicted in the United States District Court for the Central District of California of multiple counts of knowingly transporting allegedly obscene materials in interstate commerce by common carrier in violation of 18 U. S. C. §§ 14621 and 14652 (1976 ed.). Although it overturned convictions on some counts, the Court of Appeals for the Ninth Circuit affirmed petitioners’ convictions on three counts and also petitioner Sherwin’s conviction for conspiracy under 18 U. S. C. § 371 (1976 ed.).

Petitioners ask this Court to consider whether “a standard of scienter which authorizes obscenity convictions on mere knowledge of the ‘sexual orientation’ of material impermis-sibly chill [s] the dissemination of expression protected under the First Amendment of the United States Constitution.” Pet. for Cert. 2. This question is much the same as that presented in Ballew v. Georgia, 435 U. S. 223 (1978), Sewell v. Georgia, 435 U. S. 982 (1978), Robinson v. Georgia, 435 U. S. 991 (1978), and Teal v. Georgia, 435 U. S. 989 (1978). For the reasons stated in my dissent from denial of certiorari in Sewell, supra, at 982, I would hear oral argument on this issue. Barring this, I would summarily reverse petitioners’ convictions. See, e. g., United States v. Orito, 413 U. S. 139, 147 (1973) (Brennan, J., dissenting); Christian v. United States, 432 U. S. 910 (1977) (Brennan, J., dissenting from denial of certiorari); Danley v. United States, 424 U. S. 929 (1976) (same); Kutler v. United States, 423 U. S. 959 (1975) (same).

“Whoever brings into the "United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—

“(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character . . .

“Shall be fined not more than $5,000 or imprisoned not more than five years, or both . . . .”

“Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (12 total)

  • United States v. Maria del Socorro Pardo Viuda De Aguilar, 883 F.2d 662 (9th Cir. 1989)
    …ity is a definitional problem. “[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn.” United States v. Sherwin, 572 F. 2d 196, 200 (9th Cir.1977), cert. denied, 437 U.S. 909 (1978) (quoting Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)). To insure that unconditionally protected speech is not wrongfully seized and suppressed, exceptions to the warrant requirement, perhaps acceptable i…
  • United States v. Hillyard, 677 F.2d 1336 (9th Cir. 1982)
    …the class of items to determine their contraband character may require such refined legal judgment that it should be conducted by the magistrate, not the officers. See United States v. Sherwin, 539 F. 2d 1, 8 (9th Cir. 1976) (en banc), cert. denied, 437 U.S. 909, 98 S.Ct. 3101, 57 L.Ed.2d 1140 (1978). Those exceptional cases are not before us here, for in this case the officers availed themselves of guidelines set forth in the affidavit and incorporated in the warrant that enabled them to conduct an on-site…
  • United States v. Hale, 784 F.2d 1465 (9th Cir. 1986)
    …ires that the Fourth Amendment be applied with ‘scrupulous exactitude’ in such circumstances.” Maryland v. Macon, — U.S. —, 105 S.Ct. 2778, 2781-2, 86 L.Ed.2d 370 (1985); United States v. Sherwin, 572 F. 2d 196, 199-200 (9th Cir.1977), cert. denied, 437 U.S. 909, 98 S.Ct. 3101, 57 L.Ed.2d 1140 (1978); United States v. Tupler, 564 F. 2d 1294, 1297 (9th Cir.1977). As we have held, “Because of the First Amendment, the seizure of all publications must meet higher procedural standards than normal.” Sherwin, 572…

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