|Paris Adult Theatre I v. Slaton
[ Burger ]
[ Douglas ]
[ Brennan ]
Paris Adult Theatre I v. Slaton
CERTIORARI TO THE SUPREME COURT OF GEORGIA
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
Petitioners are two Atlanta, Georgia, movie theaters and their owners and managers, operating in the [p51] style of "adult" theaters. On December 28, 1970, respondents, the local state district attorney and the solicitor for the local state trial court, filed civil complaints in that court alleging that petitioners were exhibiting to the public for paid admission two allegedly obscene films, contrary to Georgia Code Ann. § 26-2101. [n1] The two films in question, "Magic Mirror" and "It All Comes Out in the End," depict sexual conduct characterized [p52] by the Georgia Supreme Court as "hard core pornography" leaving "little to the imagination."
Respondents' complaints, made on behalf of the State of Georgia, demanded that the two films be declared obscene and that petitioners be enjoined from exhibiting the films. The exhibition of the films was not enjoined, but a temporary injunction was granted ex parte by the local trial court, restraining petitioners from destroying the films or removing them from the jurisdiction. Petitioners were further ordered to have one print each of the films in court on January 13, 1971, together with the proper viewing equipment.
On January 13, 1971, 15 days after the proceedings began, the films were produced by petitioners at a jury-waived trial. Certain photographs, also produced at trial, were stipulated to portray the single entrance to both Paris Adult Theatre I and Paris Adult Theatre II as it appeared at the time of the complaints. These photographs show a conventional, inoffensive theater entrance, without any pictures, but with signs indicating that the theaters exhibit "Atlanta's Finest Mature Feature Films." On the door itself is a sign saying: "Adult Theatre -- You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter."
The two films were exhibited to the trial court. The only other state evidence was testimony by criminal investigators that they had paid admission to see the films and that nothing on the outside of the theater indicated the full nature of what was shown. In particular, nothing indicated that the films depicted -- as they did -- scenes of simulated fellatio, cunnilingus, and group sex intercourse. There was no evidence presented that minors had ever entered the theaters. Nor was there evidence presented that petitioners had a systematic policy of barring minors, apart from posting signs at the entrance. On April 12, 1971, the trial judge dismissed [p53] respondents' complaints. He assumed "that obscenity is established," but stated:
It appears to the Court that the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible.
On appeal, the Georgia Supreme Court unanimously reversed. It assumed that the adult theaters in question barred minors and gave a full warning to the general public of the nature of the films shown, but held that the films were without protection under the First Amendment. Citing the opinion of this Court in United States v. Reidel, 402 U.S. 351 (1971), the Georgia court stated that "the sale and delivery of obscene material to willing adults is not protected under the first amendment." The Georgia court also held Stanley v. Georgia, 394 U.S. 557 (1969), to be inapposite, since it did not deal with "the commercial distribution of pornography, but with the right of Stanley to possess, in the privacy of his home, pornographic films." 228 Ga. 343, 345, 185 S.E.2d 768, 769 (1971). After viewing the films, the Georgia Supreme Court held that their exhibition should have been enjoined, stating:
The films in this case leave little to the imagination. It is plain what they purport to depict, that is, conduct of the most salacious character. We hold that these films are also hard core pornography, and the showing of such films should have been enjoined, since their exhibition is not protected by the first amendment.
Id. at 347, 185 S.E.2d at 770.
It should be clear from the outset that we do not undertake to tell the States what they must do, but [p54] rather to define the area in which they may chart their own course in dealing with obscene material. This Court has consistently held that obscene material is not protected by the First Amendment as a limitation on the state police power by virtue of the Fourteenth Amendment. Miller v. California, ante at 225; Kois v. Wisconsin, 408 U.S. 229, 230 (1972); United States v. Reidel, supra, at 354; Roth v. United States, 354 U.S. 476, 485 (1957).
Georgia case law permits a civil injunction of the exhibition of obscene materials. See 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). While this procedure is civil in nature, and does not directly involve the state criminal statute proscribing exhibition of obscene material, [n2] the Georgia case law permitting civil injunction does adopt the definition of "obscene materials" used by the criminal statute. [n3] Today, in Miller v. California, supra, we have [p55] sought to clarify the constitutional definition of obscene material subject to regulation by the States, and we vacate and remand this case for reconsideration in light of Miller.
This is not to be read as disapproval of the Georgia civil procedure employed in this case, assuming the use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment. On the contrary, such a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation. [n4] See Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-444 (1957). Here, Georgia imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected. [n5] Thus, the standards of Blount v. Rizzi, 400 U.S. 410, 417 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141-142 (1968); Freedman v. Maryland, 380 U.S. 51, 559 (1965), and Kingsley Books, Inc. v. Brown, supra, at 443-445, were met. Cf. United States v. Thirty-seven Photographs, 402 U.S. 363, 367-369 (1971) (opinion of WHITE, J.). [p56]
Nor was it error to fail to require "expert" affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. United States v. Groner, 479 F.2d 577, 579-586 (CA5 1973); id. at 586-588 (Ainsworth, J., concurring); id. at 586-589 (Clark, J., concurring); United States v. Wild, 422 1.2d 34, 35-36 (CA2 1969), cert. denied, 402 U.S. 986 (1971); Kahm v. United States, 300 F.2d 78, 84 (CA5), cert. denied, 369 U.S. 859 (1962); State v. Amato, 49 Wis.2d 638, 645, 183 N.W.2d 29, 32 (1971), cert. denied sub nom. Amato v. Wisconsin, 404 U.S. 1063 (1972). See Smith v. California, 361 U.S. 147, 172 (1959) (Harlan, J., concurring and dissenting); United States v. Brown, 328 F.Supp. 196, 199 (ED Va.1971). The films, obviously, are the best evidence of what they represent. [n6]
In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question.
We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. This holding was properly rejected by the Georgia Supreme Court. Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsenting adults, see Miller v. California, ante at 18-20; Stanley v. Georgia, 394 U.S. at 567; Redrup v. New York, 386 U.S. 767, 769 (1967), this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material. The States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions. See United States v. Thirty-seven Photographs, supra, at 376-377 (opinion of WHITE, J.); United States v. Reidel, 402 U.S. at 354-356. Cf. United States v. Thirty-seven Photographs, supra, at 378 (STEWART, J., concurring).
In an unbroken series of cases extending over a long stretch of this Court's history, it has been accepted as a postulate that "the primary requirements of decency may be enforced against obscene publications." [Near v. Minnesota, 283 U.S. 697, 716 (1931)].
Kingsley Books, Inc. v. Brown, supra, at 440.
In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. [n7] [p58] Rights and interests "other than those of the advocates are involved." Breard v. Alexandria, 341 U.S. 622, 642 (1951). These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The Hill-Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime. [n8] Quite [p59] apart from sex crimes, however, there remains one problem of large proportions aptly described by Professor Bickel:
It concerns the tone of the society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently there. . . . We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places -- discreet, if you will, but accessible to all -- with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not.
22 The Public Interest 25-26 (Winter 1971). [n9] (Emphasis added.) As Mr. Chief Justice Warren stated, there is a "right of the Nation and of the States to maintain a decent society . . . ," [p60] Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (dissenting opinion). [n10] See Memoirs v. Massachusetts, 383 U.S. 413, 457 (1966) (Harlan, J., dissenting); Beauharnais v. Illinois, 343 U.S. 250, 256-257 (1952); Kovacs v. Cooper, 336 U.S. 77, 86-88 (1949).
But, it is argued, there are no scientific data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society. It is urged on behalf of the petitioners that, absent such a demonstration, any kind of state regulation is "impermissible." We reject this argument. It is not for us to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself. [n11] MR. JUSTICE BRENNAN, speaking for the Court in Ginsberg v. New York, 390 U.S. 629, 642-643 (1968), said: "We do not demand of legislatures ‘scientifically certain criteria of legislation.' Noble State Bank v. Haskell, 219 U.S. 104, 110." Although there is no conclusive proof of a connection between antisocial behavior [p61] and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect "the social interest in order and morality." Roth v. United States, 354 U.S. at 485, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (emphasis added in Roth). [n12]
From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs. See Ferguson v. Skrupa, 372 U.S. 726, 730 (1963); Breard v. Alexandria, 341 U.S. at 632-633, 641-645; Lincoln Federal Labor Union v. Northwestern Iron Metal Co., 335 U.S. 525, 536-537 (1949). The same is true of the federal securities and antitrust laws and a host of federal regulations. See SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186-195 (1963); American Power & Light Co. v. SEC, 329 U.S. 90, 99-103 (1946); North American Co. v. SEC, 327 U.S. 686, 705-707 (1946), and cases cited. See also Brooks v. United States, 267 U.S. 432, 436-437 (1925), and Hoke v. United States, 227 U.S. 308, 322 (1913). On the basis of these assumptions both Congress and state legislatures have, for example, drastically restricted associational rights by adopting antitrust laws, and have strictly regulated public expression by issuers of and dealers in securities, profit sharing "coupons," and "trading stamps," [p62] commanding what they must and must not publish and announce. See Sugar Institute, Inc. v. United States, 297 U.S. 553, 597-602 (1936); Merrick v. N.W. Halsey & Co., 242 U.S. 568, 584-589 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 567-568 (1917); Hall v. Geiger-Jones Co., 242 U.S. 539, 548-552 (1917); Tanner v. Little, 240 U.S. 369, 383-386 (1916); Rast v. Van Deman Lewis Co., 240 U.S. 342, 363-368 (1916). Understandably those who entertain an absolutist view of the First Amendment find it uncomfortable to explain why rights of association, speech, and press should be severely restrained in the marketplace of goods and money, but not in the marketplace of pornography.
Likewise, when legislatures and administrators act to protect the physical environment from pollution and to preserve our resources of forests, streams, and parks, they must act on such imponderables as the impact of a new highway near or through an existing park or wilderness area. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 417-420 (1971). Thus, § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 and the Department of Transportation Act of 1966, as amended, 82 Stat. 824, 49 U.S.C. § 1653(f), have been described by Mr. Justice Black as
a solemn determination of the highest law-making body of this Nation that the beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, factfindings, and policy determinations under the supervision of a Cabinet officer. . . .
Citizens to Preserve Overton Park, supra, at 421 (separate opinion joined by BRENNAN, J.). The fact that a congressional directive reflects unprovable assumptions about what is good for the people, including imponderable aesthetic assumptions, is not a sufficient reason to find that statute unconstitutional. [p63]
If we accept the unprovable assumption that a complete education requires the reading of certain books, see Board of Education v. Allen, 392 U.S. 236, 245 (1968), and Johnson v. New York State Education Dept., 449 F.2d 871, 882-883 (CA2 1971) (dissenting opinion), vacated and remanded to consider mootness, 409 U.S. 75 (1972), id. at 777 (MARSHALL, J., concurring), and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior? "Many of these effects may be intangible and indistinct, but they are nonetheless real." American Power & Light Co. v. SEC, supra, at 103. Mr. Justice Cardozo said that all laws in Western civilization are "guided by a robust common sense. . . ." 392 U.S. 236, 245 (1968), and Johnson v. New York State Education Dept., 449 F.2d 871, 882-883 (CA2 1971) (dissenting opinion), vacated and remanded to consider mootness, 409 U.S. 75 (1972), id. at 777 (MARSHALL, J., concurring), and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior? "Many of these effects may be intangible and indistinct, but they are nonetheless real." American Power & Light Co. v. SEC, supra, at 103. Mr. Justice Cardozo said that all laws in Western civilization are "guided by a robust common sense. . . ." Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937). The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data.
It is argued that individual "free will" must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual's desire to see or acquire obscene plays, movies, and books. We do indeed base our society on [p64] certain assumptions that people have the capacity for free choice. Most exercises of individual free choice -- those in politics, religion, and expression of idea are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. We have just noted, for example, that neither the First Amendment nor "free will" precludes States from having "blue sky" laws to regulate what sellers of securities may write or publish about their wares. See supra at 61-62. Such laws are to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition. Nor do modern societies leave disposal of garbage and sewage up to the individual "free will," but impose regulation to protect both public health and the appearance of public places. States are told by some that they must await a "laissez-faire" market solution to the obscenity-pornography problem, paradoxically "by people who have never otherwise had a kind word to say for laissez-faire," particularly in solving urban, commercial, and environmental pollution problems. See I. Kristol, On the Democratic Idea in America 37 (1972).
The States, of course, may follow such a "laissez-faire" policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction. See United States v. Reidel, 402 U.S. at 357; Memoirs v. Massachusetts, 383 U.S. at 462 (WHITE, J., dissenting).
We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.
It is asserted, however, that standards for evaluating state commercial regulations are inapposite in the present context, as state regulation of access by consenting adults to obscene material violates the constitutionally protected right to privacy enjoyed by petitioners' customers. Even assuming that petitioners have vicarious standing to assert potential customers' rights, it is unavailing to compare a theater open to the public for a fee, with the private home of Stanley v. Georgia, 394 U.S. at 568, and the marital bedroom of Griswold v. Connecticut, supra, at 485-486. This Court, has, on numerous occasions, refused to hold that commercial ventures such as a motion-picture house are "private" for the purpose of civil rights litigation and civil rights statutes. See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 236 (1969); Daniel v. Paul, 395 U.S. 298, 305-308 (1969); Blow v. North Carolina, 379 U.S. 684, 685-686 (1965); Hamm v. Rock Hill, 379 U.S. 306, 307-308 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 247, 260-261 (1964). The Civil Rights Act of 1964 specifically defines motion picture houses and theaters as places of "public accommodation" covered by the Act as operations affecting commerce. 78 Stat. 243, 42 U.S.C. § § 2000a(b)(3), (c).
Our prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included
only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937).
Roe v. Wade, 410 U.S. 113, 152 (1973). This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and childrearing. Cf. Eisenstadt v. Baird, 405 U.S. 438, 453-454 (1972); id. at 460, 463-465 (WHITE, J., concurring); Stanley v. Georgia, supra, at 568; Loving v. Virginia, 388 [p66] U.S. 1, 12 (1967); Griswold v. Connecticut, supra, at 486; Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Nothing, however, in this Court's decisions intimates that there is any "fundamental" privacy right "implicit in the concept of ordered liberty" to watch obscene movies in places of public accommodation.
If obscene material unprotected by the First Amendment, in itself, carried with it a "penumbra" of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the "privacy of the home," which was hardly more than a reaffirmation that "a man's home is his castle." Cf. Stanley v. Georgia, supra, at 564. [n13] Moreover, we have declined to equate the privacy of the home relied on in Stanley with a "zone" of "privacy" that follows a distributor or a consumer of obscene materials wherever he goes. See United States v. Orito, post at 141-143; United States v. 12 200-ft. Reels of Film, post at 126-129; United States v. Thirty-seven Photographs, 42 U.S. at 376-377 (opinion of WHITE, J.); United States v. Reidel, supra, at 355. The idea of a "privacy" right and a place of public accommodation are, in this context, [p67] mutually exclusive. Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a "live" theater stage, any more than a "live" performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue.
It is also argued that the State has no legitimate interest in "control [of] the moral content of a person's thoughts," Stanley v. Georgia, supra, at 565, and we need not quarrel with this. But we reject the claim that the State of Georgia is here attempting to control the minds or thoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, Miller v. California, ante at 24, 34, is distinct from a control of reason and the intellect. Cf. Kois v. Wisconsin, 408 U.S. 229 (1972); Roth v. United States, supra, at 485-487; Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940); Finnis, "Reason and Passion": The Constitutional Dialectic of Free Speech and Obscenity, 116 U.Pa.L.Rev. 222, 229-230, 241-243 (1967). Where communication of ideas, protected by the First Amendment, is not involved, or the particular privacy of the home protected by Stanley, or any of the other "areas or zones" of constitutionally protected privacy, the mere fact that, as a consequence, some human "utterances" or. "thoughts" may be incidentally affected does not bar the State from acting to protect legitimate state interests. Cf. Roth v. United States, supra, at 483, 485-487; Beauharnais v. Illinois, 343 U.S. at 256-257. The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not [p68] prohibited by the Constitution. Cf. United States v. Reidel, supra, at 359-360 (Harlan, J., concurring).
Finally, petitioners argue that conduct which directly involves "consenting adults" only has, for that sole reason, a special claim to constitutional protection. Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, [n14] is a step we are unable to take. [n15] Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State's broad power to regulate commerce and protect the public [p69] environment. The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as "wrong" or "sinful." The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize, in Mr. Chief Justice Warren's words, the States' "right . . . to maintain a decent society." Jacobellis v. Ohio, 378 U.S. at 199 (dissenting opinion).
To summarize, we have today reaffirmed the basic holding of Roth v. United States, supra, that obscene material has no protection under the First Amendment. See Miller v. California, supra, and Kaplan v. California, post, p. 115. We have directed our holdings, not at thoughts or speech, but at depiction and description of specifically defined sexual conduct that States may regulate within limits designed to prevent infringement of First Amendment rights. We have also reaffirmed the holdings of United States v. Reidel, supra, and United States v. Thirty-seven Photographs, supra, that commerce in obscene material is unprotected by any constitutional doctrine of privacy. United States v. Orito, post at 141-143; United States v. 12 200-ft. Reels of Film, post at 126-129. In this case, we hold that the States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including so-called "adult" theaters from which minors are excluded. In light of these holdings, nothing precludes the State of Georgia from the regulation of the allegedly obscene material exhibited in Paris Adult Theatre I or II, provided that the applicable Georgia law, as written or authoritatively interpreted by the Georgia courts, meets the First Amendment standards set forth in Miller v. California, ante at 23-25. The [p70] judgment is vacated and the case remanded to the Georgia Supreme Court for further proceedings not inconsistent with this opinion and Miller v. California, supra. See United States v. 12 200-ft. Reels of Film, post at 130 n. 7.
Vacated and remanded.
1. This is a civil proceeding. Georgia Code Ann. § 26-2101 defines a criminal offense, but the exhibition of materials found to be "obscene" as defined by that statute may be enjoined in a civil proceeding under Georgia case law. 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). See infra at 54. Georgia Code Ann. § 26-2101 reads in relevant part:
Distributing obscene materials.
(a) A person commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent so to do. . . .
(b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. . .
(d) A person convicted of distributing obscene material shall for the first offense be punished as for a misdemeanor, and for any subsequent offense shall be punished by imprisonment for not less than one nor more than five years, or by a fine not to exceed $5,000, or both.
The constitutionality of Georgia Code Ann. § 26-2101 was upheld against First Amendment and due process challenges in Gable v. Jenkins, 309 F.Supp. 998 (ND Ga.1969), aff'd per curiam, 397 U.S. 592 (1970).
2. See Georgia Code Ann. § 26-2101, set out supra at 51 n. 1.
3. In Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971), the Georgia Supreme Court described the cases before it as follows:
Each case was commenced as a civil action by the District Attorney of the Superior Court of Fulton County jointly with the Solicitor of the Criminal Court of Fulton County. In each case, the plaintiffs alleged that the defendants named therein were conducting a business of exhibiting motion picture films to members of the public; that they were in control and possession of the described motion picture film, which they were exhibiting to the public on a fee basis; that said film
constitutes a flagrant violation of Ga.Code § 22101 in that the sole and dominant theme of the motion picture film . . . considered as a whole, and applying contemporary standards, appeals to the prurient interest in sex and nudity, and that said motion picture film is utterly and absolutely without any redeeming social value whatsoever and transgresses beyond the customary limits of candor in describing and discussing sexual matters.
Id. at 676-677, 182 S.E.2d at 465.
4. This procedure would have even more merit if the exhibitor or purveyor could also test the issue of obscenity in a similar civil action, prior to any exposure to criminal penalty. We are not here presented with the problem of whether a holding that materials were not obscene could be circumvented in a later proceeding by evidence of pandering. See Memoirs v. Massachusetts, 383 U.S. 413, 458 n. 3 (1966) (Harlan, J., dissenting); Ginzburg v. United States, 383 U.S. 463, 496 (1966) (Harlan, J., dissenting).
5. At the specific request of petitioners' counsel, the copies of the films produced for the trial court were placed in the "administrative custody" of that court pending the outcome of this litigation.
6. This is not a subject that lends itself to the traditional use of expert testimony. Such testimony is usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand. Cf. 2 J. Wigmore, Evidence §§ 556, 559 (3d ed.1940). No such assistance is needed by jurors in obscenity cases; indeed, the "expert witness" practices employed in these cases have often made a mockery out of the otherwise sound concept of expert testimony. See United States v. Groner, 479 F.2d 577, 585-586 (CA5 1973); id. at 587-588 (Ainsworth, J., concurring). "Simply stated, hard core pornography . . . can and does speak for itself." United States v. Wild, 422 F.2d 34, 36 (CA2 1970), cert. denied, 402 U.S. 986 (1971). We reserve judgment, however, on the extreme case, not presented here, where contested materials are directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the prurient interest. See Mishkin v. New York, 383 U.S. 502, 508-510 (1966); United States v. Klaw, 350 F.2d 155, 167-168 (CA2 1965).
7. It is conceivable that an "adult" theater can -- if it really insists -- prevent the exposure of its obscene wares to juveniles. An "adult" bookstore, dealing in obscene books, magazines, and pictures cannot realistically make this claim. The Hill-Link Minority Report of the Commission on Obscenity and Pornography emphasizes evidence (the Abelson National Survey of Youth and Adults) that, although most pornography may be bought by elders,
the heavy users and most highly exposed people to pornography are adolescent females (among women) and adolescent and young adult males (among men).
The Report of the Commission on Obscenity and Pornography 401 (1970). The legitimate interest in preventing exposure of juveniles to obscene material cannot be fully served by simply barring juveniles from the immediate physical premises of "adult" bookstores, when there is a flourishing "outside business" in these materials.
8. The Report of the Commission on Obscenity and Pornography 390-412 (1970). For a discussion of earlier studies indicating "a division of thought [among behavioral scientists] on the correlation between obscenity and socially deleterious behavior," Memoirs v. Massachusetts, supra, at 451, and references to expert opinions that obscene material may induce crime and antisocial conduct, see id. at 451-453 (Clark, J., dissenting). Mr. Justice Clark emphasized:
While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior or other antisocial conduct. For example, Dr. George W. Henry of Cornell University has expressed the opinion that obscenity, with its exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person. A number of sociologists think that this material may have adverse effects upon individual mental health, with potentially disruptive consequences for the community.
* * * *
Congress and the legislatures of every State have enacted measures to restrict the distribution of erotic and pornographic material, justifying these controls by reference to evidence that antisocial behavior may result in part from reading obscenity.
Id. at 452-453 (footnotes omitted).
9. See also Berns, Pornography vs. Democracy: The Case for Censorship, in 22 The Public Interest 3 (Winter 1971); van den Haag, in Censorship: For & Against 156-157 (H. Hart ed.1971).
In this and other cases in this area of the law, which are coming to us in ever-increasing numbers, we are faced with the resolution of rights basic both to individuals and to society as a whole. Specifically, we are called upon to reconcile the right of the Nation and of the States to maintain a decent society and, on the other hand, the right of individuals to express themselves freely in accordance with the guarantees of the First and Fourteenth Amendments.
Jacobellis v. Ohio, supra, at 199 (Warren, C.J., dissenting).
11. Mr. Justice Holmes stated in another context, that:
[T]he proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.
Tyson & Brother v. Banton, 273 U.S. 418, 446 (1927) (dissenting opinion joined by Brandeis, J.).
It has been well observed that such [lewd and obscene] utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
13. The protection afforded by Stanley v. Georgia, 394 U.S. 557"]394 U.S. 557 (1969), is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and childrearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved. Cf. Roe v. Wade, 410 U.S. 113, 152-154 (1973); 394 U.S. 557 (1969), is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and childrearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved. Cf. Roe v. Wade, 410 U.S. 113, 152-154 (1973); Griswold v. Connecticut, 381 U.S. 479, 485-486 (1965). Obviously, there is no necessary or legitimate expectation of privacy which would extend to marital intercourse on a street corner or a theater stage.
14. Cf. J. Mill, On Liberty 13 (1955 ed.).
15. The state statute books are replete with constitutionally unchallenged laws against prostitution, suicide, voluntary self-mutilation, brutalizing "bare fist" prize fights, and duels, although these crimes may only directly involve "consenting adults." Statutes making bigamy a crime surely cut into an individual's freedom to associate, but few today seriously claim such statutes violate the First Amendment or any other constitutional provision. See Davis v. Beason, 133 U.S. 333, 344-345 (1890). Consider also the language of this Court in McLaughlin v. Florida, 379 U.S. 184, 196 (1964), as to adultery; Southern Surety Co. v. Oklahoma, 241 U.S. 582, 586 (1916), as to fornication; Hoke v. United States, 227 U.S. 308, 320-322 (1913), and Caminetti v. United States, 242 U.S. 470, 484-487, 491-492 (1917), as to "white slavery"; Murphy v. California, 225 U.S. 623, 629 (1912), as to billiard halls; and the Lottery Case, 188 U.S. 321, 355-356 (1903), as to gambling. See also the summary of state statutes prohibiting bearbaiting, cockfighting, and other brutalizing animal "sports," in Stevens, Fighting and Baiting, in Animals and Their Legal Rights 112-127 (Leavitt ed.1970). As Professor Irving Kristol has observed:
Bearbaiting and cockfighting are prohibited only in part out of compassion for the suffering animals; the main reason they were abolished was because it was felt that they debased and brutalized the citizenry who flocked to witness such spectacles.