Washington Law Review


Amy L. Swingen


A recent series of federal court decisions regarding an obscenity statute in the State of Washington provides an example of the context in which the state-federal conflict arises and the impact of the use of the various alternatives. In Brockett v. Spokane Arcades, Inc., the federal district court, the Ninth Circuit, and the Supreme Court ignored the efficient procedural solution of certification, and rejected the more time-consuming abstention as well. The question before the court involved the definition of obscenity. By refusing to allow the Washington Supreme Court to interpret the word "lust" for purposes of the state's newly enacted moral nuisance statute, the United States Supreme Court needlessly risked a constitutional adjudication based on an erroneous interpretation of state law. The threshold question of state law presented in Brockett could have been easily and efficiently resolved by certifying the question of the proper interpretation of the word "lust" to the Washington Supreme Court. Although certification best facilitates the interpretation of unclear state law in federal constitutional cases such as Brockett, the procedure can be improved to encourage its use in first amendment cases.

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