FORT v. CITY OF MIAMI., 389 U.S. 918 (1967)
U.S. Supreme Court
FORT v. CITY OF MIAMI. , 389 U.S. 918 (1967)389 U.S. 918
Marcel FORT, petitioner,
v.
CITY OF MIAMI.
No. 91
Supreme Court of the United States
October 23, 1967
Rehearing Denied Dec. 4, 1967.
See 389 U.S. 997.
Irma Robbins Feder and Richard Yale Feder, for petitioner.
Jack R. Rice, Jr., for respondent.
Petition for writ of certiorari to the District Court of Appeal of Florida, Third District.
Denied.
Mr. Justice STEWART, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
The petitioner created six fiberglass statues which he offered for sale in his backyard. Two police officers approached his home, confiscated the statues, and arrested him for violating a municipal ordinance that prohibits the knowing possession of obscene figures or images for sale. [Footnote 1]
The petitioner was convicted, his conviction was affirmed, and the Florida District Court of Appeal denied certiorari. Unable to obtain review in any higher Florida court,2 he brought to this Court the federal
constitutional claims he had unsuccessfully advanced at every stage of the state litigation.
It is clear that the ordinance under which he was convicted is unconstitutional on its face. That ordinance adopts the definition of obscenity embodied in a Florida statute:3
Members of this Court have expressed differing views as to the extent of a State's power to suppress 'obscene' material through criminal or civil proceedings. But it is at least established that a State is without power to do so upon the sole ground that the material 'appeals to prurient interest.'4
The petitioner in this case was charged, tried, and convicted
under a statutory provision which contains no [389 U.S. 918 , 920]
U.S. Supreme Court
FORT v. CITY OF MIAMI. , 389 U.S. 918 (1967) 389 U.S. 918 Marcel FORT, petitioner,v.
CITY OF MIAMI.
No. 91 Supreme Court of the United States October 23, 1967 Rehearing Denied Dec. 4, 1967. See 389 U.S. 997. Irma Robbins Feder and Richard Yale Feder, for petitioner. Jack R. Rice, Jr., for respondent. Petition for writ of certiorari to the District Court of Appeal of Florida, Third District. Denied. Mr. Justice STEWART, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting. The petitioner created six fiberglass statues which he offered for sale in his backyard. Two police officers approached his home, confiscated the statues, and arrested him for violating a municipal ordinance that prohibits the knowing possession of obscene figures or images for sale. [Footnote 1] The petitioner was convicted, his conviction was affirmed, and the Florida District Court of Appeal denied certiorari. Unable to obtain review in any higher Florida court,2 he brought to this Court the federal Page 389 U.S. 918 , 919 constitutional claims he had unsuccessfully advanced at every stage of the state litigation. It is clear that the ordinance under which he was convicted is unconstitutional on its face. That ordinance adopts the definition of obscenity embodied in a Florida statute:3 Members of this Court have expressed differing views as to the extent of a State's power to suppress 'obscene' material through criminal or civil proceedings. But it is at least established that a State is without power to do so upon the sole ground that the material 'appeals to prurient interest.'4 The petitioner in this case was charged, tried, and convicted under a statutory provision which contains no Page 389 U.S. 918 , 920 other criterion of 'obscenity.' This conviction therefore rests upon a law incompatible with the guarantees of the First and Fourteenth Amendments of the United States Constitution. I would grant the petition for certiorari and reverse the judgment. Footnotes Footnote 1 Section 38 of Chapter 43 of the Miami Code provides that it shall be unlawful for any person to commit an act which is recognized by the laws of the State as a misdemeanor. Under c. 61-7, Laws 1961; Fla.Stat. 847.011(1)(a), F.S.A., it is a misdemeanor to have in one's 'possession, custody, or control with intent to sell ... any obscene, lewd, lascivious, filthy, indecent, [or] immoral ... figure [or] image.' Footnote 2 The Florida Supreme Court may review by certiorari a decision of a district court of appeal 'in direct conflict with a decision of another district court of appeal or of the supreme court on the same point of law.' Fla.Const., Art. V, 4(2), F.S.A.; Fla.App.R. 4.5, subd. c(6), 32 F.S.A. Although the State suggests that the petitioner might have invoked this 'conflict jurisdiction' in order to obtain review of his conviction in the Florida Supreme Court, the petitioner states that no Florida decision of which he is aware conflicts with that of the District Court of Appeal, and the State's response to the petition for certiorari refers to no decision that even purports to pass upon the issues here involved. Under these circumstances, I am satisfied that the judgment of the District Court of Appeal in this case was 'rendered by the highest court of a State in which a decision could be had,' as required by 28 U.S.C. 1257. ______-- Footnote 3 Chapter 61-7, Laws 1961; Fla.Stat. 847.011(10).
