Mr. Justice DOUGLAS, being of the view that any state or dederal ban on, or regulation of, obscenity is prohibited by the Constitution, Miller v. California, 413 U.S. 15, 43-48, 93 S. Ct. 2607, 37 L. Ed. 2d 419; Paris Adult Theatre v. Slaton, 413 U.S. 49, 70-73, 93 S. Ct. 2628, 37 L. Ed. 2d 446, would grant certiorari in this case and summarily reverse.
Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974), I believe that, consistent with the Due Process Clause, petitioner must be given an opportunity to have his case decided on, and introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards.