Flynt v. Ohio

PETITIONER: Larry C. Flynt
RESPONDENT: State of Ohio
LOCATION: Larry Flynt’s Hustler Club

DOCKET NO.: 80-420
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Ohio Supreme Court

CITATION: 451 US 619 (1981)
ARGUED: Mar 24, 1981
DECIDED: May 18, 1981
GRANTED: Dec 08, 1980

Andrew J. Levander - For the Respondent
Bruce A. Taylor - For the Respondent
Herald Price Fahringer - For the Petitioner

Facts of the case

In July 1976, Ohio charged petitioners, officers of Hustler Magazine, with disseminating obscene materials for their role in publishing an issue of Hustler that contained a political cartoon that Ohio deemed obscene. The trial court dismissed the charge and held that Ohio violated the petitioners’ rights under the Equal Protection Clause by engaging in discriminatory prosecution. Ohio appealed to the Court of Appeals of Ohio for the Eighth District, which reversed the trial court’s decision and reinstated the charges. Petitioners appealed to the Supreme Court of Ohio and argued that Ohio’s decision to prosecute Hustler, instead of other magazines that routinely published similar content, was discriminatory. The Supreme Court of Ohio ruled that petitioners did not establish the elements for a prima facie case for unconstitutional discriminatory prosecution. To do so, petitioners had to show that they were singled out for prosecution while there were other magazines similarly situated that were not prosecuted, and that the government’s decision to prosecute them was made in bad faith, based upon race, religion, or the desire to prevent their exercise of First Amendment rights. The Supreme Court of Ohio determined the petitioners had not met this burden and remanded the case to the lower courts so that the petitioners could present further evidence to meet this burden.


Can the Supreme Court assume jurisdiction over a case that has not received final judgment?

Media for Flynt v. Ohio

Audio Transcription for Oral Argument - March 24, 1981 in Flynt v. Ohio

Warren E. Burger:

Thank you, Mr. Justice Brennan.

We will hear arguments first this morning in Flynt against Ohio.

Herald Price Fahringer:

Mr. Chief Justice and if it please the Court.

Warren E. Burger:

Just hold a minute until your friends get ready.

Mr. Fahringer, you may proceed now.

Herald Price Fahringer:

Mr. Chief Justice and if it please the Court.

This case is here on certiorari to the Supreme Court of Ohio.

The resolution to the question post by this case, which is of constitutional dimension and I believe one of the first impression is bound to carry implications and give directions far beyond the boundaries of this case.

And that simple question as I view it is this.

Where a defendant in a criminal case makes out a prima facie case of selective prosecution, is it sufficient for the prosecutor to simply deny those allegations and suggest or intimate that this was a test case?

We --

William H. Rehnquist:

Mr. Fahringer, might I interrupt you for a moment?

I realized that you're just beginning.

But as you are undoubtedly aware, our jurisdiction over appeals from or certiorari from these highest courts of States is governed by 28 U.S.C. 1257, which requires a final judgment or decree.

As I understand the Supreme Court of Ohio opinion here, it simply remanded the case for trial.

It didn't affirm a conviction.

Your client has never been tried.

Why is this a final judgment or -- or decree?

Herald Price Fahringer:

Well, Your Honor, I believe under that section, and I'm -- I'm not sure this is a final judgment or decree, but under that Section, you've invoked your power in First Amendment cases which this is as the Government acknowledges in their brief on a number of occasions because of the importance of the issue.

We believe in view of the controversy that has been generated by this case, it will be well now to resolve this issue because of its widespread importance.

And I believe --

William H. Rehnquist:

Do you think it's just the 12 that has -- 1257 is just an open-ended thing then that we -- if we think the issue is important that we can take it regardless of --

Herald Price Fahringer:

Well --

William H. Rehnquist:

-- the language used by the Congress?

Herald Price Fahringer:

I -- I think you have in the past done that, in a number of cases involving injunctions and matters of that kind, which I believe this we come well within the reach of those cases and -- and I would -- I would beseech you to invoke your jurisdiction under that inherent power you have because of the importance of the issue.

William H. Rehnquist:

We -- do we -- we don't have any inherent power.

We have the power to interpret the statutory language.

Herald Price Fahringer:

Your Honor, I just am of the view that the -- this case is relied upon in the amicus brief where they indicate you have done this before whether it has not been a final judgment is -- is -- we are a good candidate for -- for that type of disposition.

The facts can be introduced to the Court in rather summary fashion.

I know you're aware of them but I'd like to just simply highlight in the hearing conducted in Cleveland.