Petitioner was convicted after jury trial in the United States District Court for the Middle District of Florida of mailing obscene advertisements in violation of 18 U.S.C. § 1461. That section provides in pertinent part:

'Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; . . .

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'Is declared to be nonmailable matter and shall not be conveyed in the mail or delivered from any post office or by any letter carrier.

'Whoever knowingly uses the mails for the mailing . . . of anything declared by this section . . . to be nonmailable . . . shall be fined not more than $5,000 or imprisoned not more than five years . . ..'

The Court of Appeals for the Fifth Circuit affirmed. 524 F.2d 1244.

I adhere to my dissent in United States v. Orito, 413 U.S. 139, 147, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973), in which, speaking of 18 U.S.C. § 1462, which is similar in scope to § 1461, I expressed the view that '[w]hatever the extent of the Federal Government's power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional on its face.' Id., at 147-148, 93 S.Ct. 2674. 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 Court of Appeals for the Fifth Circuit was rendered after Orito, reverse.

In these circumstances, I have no occasion to consider whether the other questions presented by petitioner merit plenary review. See Heller v. New York, 413 U.S. 494, 495, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1974) (Brennan, J., dissenting).