c10:No. 80-420

Justice Stewart,
with whom Justice Brennan and Justice Marshall join,
dissenting.
I believe that a criminal trial of the petitioners under this Ohio obscenity law will violate the Constitution of the United States. See, e. g., Wood v. Georgia, 450 U. S. 261, 275 (opinion of Brennan, J.); ibid, (opinion of Stewart, J.); Sewell v. Georgia, 435 U. S. 982, 988 (dissenting opinion) ; Splawn v. California, 431 U. S. 595, 602 (Stewart, J., dissenting). It is clear to me, therefore, that “identifiable . .. constitutional polio [y]” will be “undermined by the continuation of the litigation in the state courts.” Ante, at 622.
Accordingly, I think that under the very criteria discussed in the opinion of the Court, the judgment before us is “final for jurisdictional purposes.” Ante, at 620. Believing that the Ohio trial court acted correctly in dismissing the complaints, and that the state appellate courts were in error in overturning that dismissal, I would reverse the judgment.
Justice Stevens,
dissenting.
The decision of a federal question by the highest court of the State is final within the meaning of 28 U. S. C. § 1257 “if a refusal immediately to review the state-court decision might seriously erode federal policy.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 483. In the Court’s view, this ground does not support reviewability in this case because the Court can discern “no identifiable federal policy that will suffer if the state criminal proceeding goes forward.” Ante, at 622. In my opinion, the interest in protecting magazine publishers from being prosecuted criminally because state officials or their constituents are offended by the content of an admittedly nonobseene political cartoon is not merely “an identifiable federal policy”; it is the kind of interest that motivated the adoption of the First Amendment to the United States Constitution.
Petitioners publish Hustler, a national magazine. The trial court dismissed the criminal complaint against them after hearing evidence tending to establish that Ohio’s decision to bring this prosecution was motivated by hostility to a political cartoon that is constitutionally indistinguishable from the rather trite depiction held to be protected by the First Amendment in Papish v. University of Missouri Curators, 410 U. S. 667. The Ohio Court of Appeals reversed, and that court’s decision was affirmed by the Supreme Court of Ohio over the dissent of Justice Brown.
Because the Court has decided today to dismiss the writ of certiorari for. want of jurisdiction, I will not comment on the merits beyond indicating that they concern the standards that a court must apply in determining whether an exercise of prosecutorial discretion has been based on an impermissible criterion such as race, religion, or the exercise of First Amendment rights. Because I place a high value on the federal interest in preventing such prosecutions and because the reinstatement of this criminal complaint may seriously erode that federal interest, I respectfully dissent.

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