|Jenkins v. Georgia
230 Ga. 726, 199 S.E.2d 183, reversed.
[ Rehnquist ]
[ Douglas ]
[ Brennan ]
Jenkins v. Georgia
APPEAL FROM THE SUPREME COURT OF GEORGIA
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, concurring in the result.
(a). . . "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c). . . the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Id. at 24. It was my view then -- and it remains so -- that the Court's reformulation hardly represented a solution to what Mr. Justice Harlan called "the intractable obscenity problem," Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (concurring and dissenting opinion). Today's decision confirms my observation in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), that the Court's new formulation does not extricate us from the mire of case-by-case determinations of obscenity. I there noted, in dissent:
Ultimately, the reformulation must fail because it still leaves in this Court the responsibility of determining in each case whether the materials are protected [p163] by the First Amendment. The Court concedes that, even under its restated formulation, the First Amendment interests at stake require "appellate courts to conduct an independent review of constitutional claims when necessary," Miller v. California[, 413 U.S. 15, 25], citing Mr. Justice Harlan's opinion in Roth, where he stated,
I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based.
354 U.S. at 498. Thus, the Court's new formulation will not relieve us of "the awesome task of making, case by case, at once the criminal and the constitutional law."
And the careful efforts of state and lower federal courts to apply the standard will remain an essentially pointless exercise, in view of the need for an ultimate decision by this Court. In addition, since the status of sexually oriented material will necessarily remain in doubt until final decision by this Court, the new approach will not diminish the chill on protected expression that derives from the uncertainty of the underlying standard. I am convinced that a definition of obscenity in terms of physical conduct cannot provide sufficient clarity to afford fair notice, to avoid a chill on protected expression, and to minimize the institutional stress, so long as that definition is used to justify the outright suppression of any material that is asserted to fall within its terms.
413 U.S. at 100-101. (Footnote omitted.)
After the Court's decision today, there can be no doubt that Miller requires appellate courts -- including this Court -- to review independently the constitutional fact of obscenity. Moreover, the Court's task is not limited to [p164] reviewing a jury finding under part (c) of the Miller test that "the work, taken as a whole, lack[ed] serious literary, artistic, political, or scientific value." 413 U.S. at 24. Miller also requires independent review of a jury's determination under part (b) of the Miller test that "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law." Ibid. As the Court notes, ante at 160:
Even though questions of . . . patent offensiveness are "essentially questions of fact," it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is "patently offensive." Not only did we there say that
the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,
413 U.S. at 25, but we made it plain that, under that holding,
no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct. . . .
Id. at 27.
In order to make the review mandated by Miller, the Court was required to screen the film "Carnal Knowledge" and make an independent determination of obscenity vel non. Following that review, the Court holds that "Carnal Knowledge"
could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene.
Ante at 161.
Thus, it is clear that, as long as the Miller test remains in effect,
one cannot say with certainty that material is obscene until at least five members of this Court, applying [p165] inevitably obscure standards, have pronounced it so.
Paris Adult Theatre I v. Slaton, 413 U.S. at 92 (BRENNAN, J., dissenting). Because of the attendant uncertainty of such a process and its inevitable institutional stress upon the judiciary, I continue to adhere to my view that,
at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly "obscene" contents.
Id. at 113. It is clear that, tested by that constitutional standard, the Georgia obscenity statutes under which appellant Jenkins was convicted are constitutionally overbroad, and therefore facially invalid. I therefore concur in the result in the Court's reversal of Jenkins' conviction.
* See Roth v. United States, 354 U.S. 476"]354 U.S. 476 (1957), and 354 U.S. 476 (1957), and Memoirs v. Massachusetts, 383 U.S. 413 (1966).