John Marshall Harlan II

“ Most of the present Justices who believe that 'obscenity' is not beyond the pale of governmental control seemingly consider that the Roth-Memoirs-Ginzburg tests permit suppression of material that falls short of so-called 'hard core pornography,' on equal terms as between federal and state authority. ”

“ Second, the ordinance provides that a film 'shall be considered 'likely to incite or encourage' crime delinquency or sexual promiscuity * * * if, in the judgment of the Board, there is a substantial probability that it will create the impression on young persons that such conduct is profitable, desirable, acceptable, respectable, praiseworthy or commonly accepted.' The Court is concerned that many may disagree as to whether any specific materials create such impressions on young persons. ”

“ United States, supra, is thought to give more 'guidance to those who seek to adjust their conduct' than does the Dallas ordinance. It is difficult to imagine any standard more vague, or more overbroad, than the 'new subjectivity' created by the Court's search for the 'leer of the sensualist.' See Magrath, The Obscenity Cases: Grapes of Roth, 1966 Sup.Ct.Rev. ”

“ The statute forbade the exhibition of a film 'which portrays acts of sexual immorality * * * or * * * presents such acts as desirable, acceptable or proper patterns of behavior.' Id., 360 U.S., at 685, 79 S.Ct., at 1364. It appears that only the opinion of Mr. Justice Clark, concurring in the result, upon which the Court now relies so heavily, described this standard as vague. Indeed, Mr. Justice Frankfurter said in his separate opinion that the 'Court does not strike the law down because of vagueness * * *.' Id., at 695, 79 S.Ct., at 1369. ”