Petitioner was convicted in the Criminal Court of Fulton County, Ga., on two counts of exhibiting obscene materials in violation of Ga.Code Ann. § 26-2101. The convictions were based upon two exhibitions of a motion picture film entitled 'Deep Throat.' Section 26-2101(a) provides:

'A person commits the offense of distributing obscene materials when he . . . exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof . . ..

Under § 26-2101(b), material is obscene if:

'(1) to the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest, that is a shameful or morbid interest in nudity, sex or excretion;

'(2) the material taken as a whole, lacks serious literary, artistic, political or scientific value, and

'(3) the material depicts or describes, in a patently offensive way, sexual conduct specifically defined . . . below . . ..'

The judgment of conviction was ultimately affirmed by the Georgia Supreme Court, 234 Ga. 586, 216 S.E.2d 838.

It is my view that 'at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents.' Paris Adult Theatre I v. Slaton, 413 U.S. 49, 113, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, § 26-2101(a), as it incorporates the definition of obscene material in § 26-2101(b), is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), I would therefore grant certiorari and, since the judgment of the Georgia Supreme Court was rendered after Miller, reverse. In that circumstance, I have no occasion to consider whether the other question presented by petitioner merits plenary review. See Heller v. New York, 413 U.S. 494, 495, 93 S.Ct. 2796, 37 L.Ed.2d 755 (1974) (Brennan, J., dissenting).

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, 141, 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 convictions have 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.