Marks v. United States (430 U.S. 188)/Concurrence-dissent Stevens
Mr. Justice Stevens, concurring in part and dissenting in part.
There are three reasons which, in combination, persuade me that this criminal prosecution is constitutionally impermissible. First, as the Court's opinion recognizes, this "statute regulates expression and implicates First Amendment values." Ante, at 196. However distasteful these materials are to some of us, they are nevertheless a form of communication and entertainment acceptable to a substantial segment of society; otherwise, they would have no value in the marketplace. Second, the statute is predicated on the somewhat illogical premise that a person may be prosecuted criminally for providing another with material he has a constitutional right to possess. See Stanley v. Georgia, 394 U.S. 557. Third, the present constitutional standards, both substantive and procedural,[‡] which apply to these prosecutions are so intolerably vague that evenhanded enforcement of the law is a virtual impossibility. Indeed, my brief experience on the Court has persuaded me that grossly disparate treatment of similar offenders is a characteristic of the criminal enforcement of obscenity law. Accordingly, while I agree with everything said in the Court's opinion, I am unable to join its judgment remanding the case for a new trial.
‡ ^ . How, for example, can an appellate court intelligently determine whether a jury has properly identified the relevant community standards?