BRENNAN, J., Concurring and Dissenting Opinion

SUPREME COURT OF THE UNITED STATES

441 U.S. 130

Burch v. Louisiana

CERTIORARI TO THE SUPREME COURT OF LOUISIANA

MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR JUSTICE MARSHALL join, concurring in part and dissenting in part.

For the reasons set forth in Johnson v. Louisiana, 406 U.S. 356, 380 (Douglas, J., dissenting), 395 (BRENNAN, J., dissenting), 397 (STEWART, J., dissenting), 399 (MARSHALL, J., dissenting) (1972), and Apodaca v. Oregon, 406 U.S. 404, 414 (1972) (STEWART, J., dissenting), I agree that petitioner Burch's criminal conviction by a nonunanimous jury verdict must be reversed as a violation of his right to jury trial guaranteed by the Sixth and Fourteenth Amendments. However, I dissent from the Court's disposition insofar as it authorizes a retrial of petitioner Burch and affirms the conviction of petitioner Wrestle, Inc. Petitioners were convicted on charges of exhibiting allegedly obscene motion pictures in violation of La.Rev.Stat.Ann. § 14:106(A)(3) (West 1974). That statute, in my view, is overbroad, and therefore facially unconstitutional. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973) (BRENNAN, J., dissenting). Accordingly, I would reverse the convictions of both petitioners and declare that the unconstitutionality of the statute precludes a constitutional conviction of either for its alleged violation. See Ballew v. Georgia, 435 U.S. 223, 246 (1978) (opinion of BRENNAN, J.).