Petitioners Brief — Ballew v. Georgia

i APR 18

IN THE es

Supreme Court of the United States

OCTOBER TERM, 1976

NO. 76-761

CLAUDE D. BALLEW,

Petitioner,

STATE OF GEORGIA,

Respondent

ON WRIT OF CERTIORARI

TO THE

GEORGIA COURT OF APPEALS

BRIEF OF PETITIONER

Of Counsel:

MICHAEL CLUTTER, Esa. ROBERT EUGENE SMITH, ksq.

1409 Peachtree St., N.F 1409 Peachtree St., N.E.

Atlanta, Georgia 30309 Atlanta, Georgia 30309

Attorney for Petitioner

eae tt Ce ee

The Paul M. Harrod Company, Baltumore, Maryland 21234

INDEX

TABLE OF CONTENTS

Page

re ee ern 2a ale es a eb ee One ee l

I eee re re ere

i ie. «ic eeen ne dee ve ae eee ss 2

CONST!TUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..........ccccccccces 3

vt kcaus@abaeieae bes eeoee dees oe 3

ARGUMENT —

1 A jury composed of five persons is

insufficient to afford an accused in a criminal

prosecution the right to trial by jury

guaranteed under the Sixth and Fourteenth

Amendments to the United States Constitution . .4

Il. A standard of scienter which authorizes

obscenity convictions on mere “constructive”

knowledge impermissibly’ chills the

dissemination of expression protected under

the First and Fourteenth Amendments to the

United States Constitution .............:. 11

Ill. The motion picture film “Behind the Green

Door” is an artistic work of national acclaim

which may not, as a matter of applicable

constitutional law, be held obscene since it is

protected under the First and Fourteenth

Amendments to the United States Constitution . 18

CREE Se etoceuebesesecodeoseveccocess

**

TABLE OF CITATIONS

Cases

Page

Aday v. United States, 388 U.S. 447(1967) ......... 19

Corinth Publications v. Westberry,

368 U.S. 446 (1967) oc cccscneseesbeesenuan 19

Grove Press v. Gerstein, 378 U.S. 577 (1964) ........ 20

Hamling v. U.S. 418 U.S. 87 (1974) .........22045- 12

Hovt v. Minnesota, 399 U.S. 524 (1970) ............ 19

Interstate Circuit, Inc. v. Dallas,

390 UB. GIG CIDER) 2c cccecssesceseeeeeeeea 21

Jacobellis v. Ohio, 378 U.S. 184 (1964) ............ 19

Jenkins v. Georgia, 418 U.S. 153 (1974) .......... 15,19

Kaplan v. California, 413 U.S. 115 (1973) ........... 15

Manual Enterprises, Inc. v. Day,

370 US. 676 CIGGRD .ccccccssseeseensenee 18

Marks v. U.S., U.S.

(No. 75-708, decided March 1, 1977)......... 21,22

Mazes v. Ohio, 388 U.S. 453 (1967) ...........0046. 19

Memoirs v. Massachusetts, 383 U.S. 413 (1966) ....... 19

Miller v. California, 413 U.S. 15 (1973) ........... 6,20

Paris Adult Theatre I v. Slaton,

413 US. 4B, 92 CIGTSD cccccecccseeresseeee 23

Pinkus v. California, 400 U.S. 922 (1970) ........... 20

Pinkus v. Pitchess, 429 F.2d 416 (CA 9 1970)........ 20

Smith v. California, 361 U.S. 147 (1959) ........... 13

Stanley v. Georgia, 394 U.S. S557 .. 1... ce ee eee eee 22

Williams v. Florida, 399 U.S. 78 (1970) ............. 4

Books and Articles

Kalven, H. and Zeisel, H., The American Jury,

(Little, Brown & Co., 1966) ..- -cccccccsessces 8

Lempert, Uncovering ‘‘Nondiscernible’’ Differences:

Empirical Research and the Jury-Size Cases,

73 Mich. L.Rev. 643, 668 (1975) ............ 7,9

Thomas anf Fink, Effects of Group Size,

$0 Poych. Bull. 371 (1963) 0... ccc csccsccscese 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

NO. 76-761

CLAUDE D. BALLEW,

Petitioner,

STATE OF GEORGIA,

Respondent

ON WRIT OF CERTIORARI

TO THE

GEORGIA COURT OF APPEALS

BRIEF OF PETITIONER

OPINION BELOW

The opinion of the Georgia Court of Appeals is

reported at 138 Ga. App. 530, 227 S.E.2d 65. It is also set

forth in Appendix A to the Petition for Writ of Certiorari

as well as at pages 19 through 25 of the Joint Appendix.

April 6, 1976. An application for rehearing was

timely and denied on May 6, 1976. The Georgia

Supreme Court denied a timely filed petition for writ of

certiorari on July 9, 1976. Mr. Justice Powell granted an

extension of time to and including December 6, 1976

within which to file a petition for writ of certiorari. The

petition was filed on December 3, 1976, and it was granted

on January 25, 1977. The jurisdiction of this Court is

invoked under Title 28, United States Code § 1257 (3).

QUESTIONS PRESENTED

1. Whether a jury composed of five persons is

sufficient to afford an accused in a criminal prosecution to

the right to trial by jury guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution.

2. Whether a standard of scienter which authorizes

obscenity convictions on mere “constructive” knowledge

impermissibly chills the dissemination of expression

protected under the First and Fourteenth Amendments to

the United States Constitution.

3. Whether the motion picture film “Behind the Green

Door” is, as a matter of applicable constitutional law,

protected expression under the First and Fourteenth

Amendments to the United States Constitution.

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

; The pertinent provisions of the First, Sixth and

Sourteenth Amendments to the United States Constitution

as well as Article VI, Section XVI, of the Georgia

Constitution are set forth in Appendix D to the Petition for

Writ cf Certiorari. Article VI, Section XVI, of the Georgia

Consticution is also set forth at page 27 of the Joint

Appendix.

STATEMENT

Petitioner was convicted in the Criminal Court of

Fulton County for distributing obscene material, the charges

being predicated upon exhibition of the motion picture film

“Behind the Green Door” at an Atlanta theatre where

petitioner was employed. He was tried, over objecticn,

before a five-person jury and convicted. He was sentenced

to @ one-year term of imprisonment and a fine of

$2,000.00. He thereafter appealed his conviction to the

Georgia Court of Appeals which affirmed the trial court

judgment in all respects in a judgment and opinion for

which review is sought here.

A JURY COMPOSED OF FIVE PERSONS IS

INSUFFICIENT TO AFFORD AN ACCUSED IN

A CRIMINAL PROSECUTION THE RIGHT TO

TRIAL BY JURY GUARANTEED UNDER THE

SIXTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION.

In Williams v. Florida, 399 U.S. 78 (1970), this Court

held that the Sixth Amendment guarantee of trial by jury

in criminal cases, made applicable to the states through the

Fourteenth Amendment, does not require trials before

twelve-person panels. While approving six-person juries, the

Court in Williams \eft open the question of what minimum

number of jurors is required to guarantee the constitutional

right to jury trial in state criminal cases. 399 U.S., at 91

n.28. That is the first question before this Court in the

instant case

The decision in Williams, supra, was predicated upon an

analysis of the purpose of jury trials and a finding that the

purpose was not frustrated by a reduction in the size of the

jury from twelve to six persons. Petitioner suggests that the

question now before the Court should be answered on the

same basis of analyzing the purposes of jury trials and

determining whether those purposes can be adequately

fulfilled by five-person panels. It is respectfully submitted

that, especially in obscenity cases involving a determination

of local community standards, no jury of five or fewer

persons can adequately carry out the purposes of the jury

trial as a guaranteed constitutional nght.

5

It must first be noted that there is an important

distinction between trials for robbery such as that in

Williams, supra, and trials for obscenity offenses such as the

instant case. This distinction was noted by Petitioner at an

early stage when he moved to impanel a twelve-person jury.

In arguing the motion, counsel for Petitioner stated:

“The Solicitor has chosen to proceed in this

Court which only allows five-person juries to try a

case. And we think, given the fact that in

obscenity cases the issue of contemporary

community standards and a cross-section of the

community must be properly applied in order to

afford defendant a fair trial, given a cross-section

of the community, a twelve-man jury would be

more proper.

“I know the United States Supreme Court

has allowed a minimum, the bottom of six-person

juries. I think that the five-man jury in and of

itself is subject to attack. But in light of these

circumstances, I think that a five-man jury is even

less proper because of the subjective evaluation

and standards, and adequate cross-section.

“We don’t have, did a man pull a trigger. Did

a man shoplift. But we have to apply this

contemporary community standards regarding sex,

nudity, excretion, etc.” Tr., at 14.

In light of the unique task confronting a jury in any

obscenity case, any decrease in the number of jurors

performing that task effects not only determinations of guilt

or innocence, but also implicit enunciations of contem porary

community standards.

6

In Miller v. California, 413 U.S. 15 (1973), this Court

eliminated the requirement of national standards and the

det*rmination of obscenity to be determined against the

background of local community standards as viewed by the

average person. The purpose of this standard was stated by

the Court to be that:

“So far as material is not aimed at a deviant

group, it will be judged by its impact on an

average person, rather than a _ particularly

susceptible or sensitive person— or indeed a

totally insensitive one.” 413 U.S., at 33.

The necessity of obtaining an adequate cross section of

the community is thus heightened in obscenity cases in

order to obtain a more reliable reflection of the views of

the “average person” in the community rather than

particularly susceptible or totally insensitive citizens.

The determination of local community standards as

viewed by the average person is, by definition, an averaging

process. In this regard, juries may be viewed, in a statistical

sense, as a sample group from which one is to judge the

average views of the community at large. It is axiomatic

that the ability of this sample group to accurately reflect

the total population is directly proportional to the size of

the sample. With each decrease in size, there is an increase

in the likelihood of judging any material by a small group

containing, by chance, highly susceptible and/or totally

insensitive persons. The smaller the group, the larger the

voice of such minority viewpoints.

7

The quality of jury decisions in obscenity cases as truly

representative of the views of the community as a whole

will be increased as the number of jurors making the

decision is increased. It has thus been noted that:

“The greater representativeness of the larger groups

results from the obvious fact than an individual

with a given characteristic is more likely to appear

in a random collection of twelve individuals than

any random collection of six. Thus, the presence

of jurors with viewpoints, abilities, quirks, or racial

identities that characterize only a minority of the

population is more likely with larger juries.”

Lempert, Uncovering “‘Nondiscernible’’ Differences:

Empirical Research and the Jury-Size Cases, 73

Mich. L. Rev. 643, 668 (1975).

Since it is axiomatic that larger randomly selected groups

tend toward greater heterogeneity of membership, a six-person

jury is better able than a five-person jury to accurately reflect the

views of a heterogeneous community. The difference

between five-person deliberations and six-person deliberations

might seem small in the abstract. Viewed alternatively,

however, increasing a jury from five to six persons increases

the input in community standard determination by a full

twenty percent. This is significant whenever sensitive First

Amendment values are implicated. It is even more important

since the Williams decision already reduced _ the

constitutional minimum from twelve to six and each

additional reduction brings us even further down the

“slippery slope toward dispensing with the jury altogether”

which was recognized in Williams. 399 U.S., at 91 n.28.

Quite apart from the unique First Amendment

implications present in the instant case, it is submitted that

five-person juries are constitutionally inadequate to guarantee

the right to trial by jury. even as it relates solely to the

determination of guilt or innocence in any criminai case. In

approving the decrease from twelve to six-member juries in

Williams, the Court noted its inability to find any

“discernible difference between the results reached by the

two different sized juries.” 399 U.S., at 101. The theoretical

advantage of larger juries in presenting a defendant with

greater chances of finding a holdout for acquittal was

dismissed by noting that larger juries also present the state

with more chances of finding a holdout for guilt. /d.

While empirical data is limited, that which exists tends

to repudiate the Court’s unsupported assumption that any

increase in holdouts associated with larger juries inures

equally to the benefit of the state and the defendant. The

only data available to Petitioner's counsel indicates that

approximately twenty-five percent of all hung juries are

caused by a single juror holding out for acquittal and

almost no hung jury can be singled out as predicated upon

one juror holding out for conviction. See, H. Kalven and

H. Zeisel The American Jury (Little, Brown & Co., 1966).

This evidence would appear to support the proposition that

a decrease from six to five person juries will increase the

number of guilty verdicts because of the decreased chance

of the presence of a holdout for acquittal.

The Petitioner, however, does not merely rely upon

empirical data supporting the proposition that larger juries

inure to the benefit of defendants. What is more pervasive,

and more in portant, is data supporting the proposition that

the quality of group decisions is higher in larger than in

smaller groups, regardless of whether that increase in quality

9

benefits the defendant or the state. The obvious advantage

of larger group decision making over the small group

decision making derives from the greater input of diverse

viewpoints, the increase in individual contributions to the

decision making process, and the greater heterogeneity of

the decision making body.

The positive effect upon the quality of decision making

achieved by increasing group size has been extensively

studied. The advantages of larger groups stated above have

been substantiated in over thirty studies in which the

quality of the decision making was correlated to group size.

These studies are summarized in Thomas and Fink, Effects

of Group Size, 60 Psych. Bull.371 (1963). The authors

there conclude that:

“It appears that both quality of group

performance and group productivity were

positively correlated with group size under some

conditions, and under no conditions were smaller

groups superior.” /d., at 373.

The studies supporting this conclusion are set forth in

Lempert, Uncovering ‘‘Nondiscernible” Differences: Empirical

Research and the Jury-Size Cases, 73 Mich. L.Rev. 643, 685

n.118. By refusing to take the further step down the

“slippery slope” from six to five-person juries, the Court

thus has an opportunity to promote the community interest

in correct verdicts, quite apart from the defendant's interest

in verdicts of acquittal. See, Lempert, supra, at 684.

The difference in the quality of the decision making

and the difference in the outcomes produced when juries

are decreased in size is especially important in light of the

10

premise underlying the Williams decision. The Court in

Williams, unable to find significant historical guidance,

proceeded solely upon an aanalysis of the purpose of jury

trials:

“Providing an accused with the right to be tried

by a jury of his peers gave him an inestimable

safeguard against the corrupt or overzealous

prosecutor and against the compliant, biased, or

eccentric judge.” 391 U.S., at 156.

The Court authorized the decrease from twelve persons to

six persons in Williams upon the supposition that no

discernible change in outcome would result. All of the

studies since that time have indicated not only that

differences in outcome result but also that the quality of

decision making is decreased.

A further purpose of the jury in our constitutional

scheme was expounded upon by this Court in Williams as

follows:

“(T]he essential feature of a jury obviously lies in

the interposition between the accused and his

accuser of the common sense judgment of a group

of laymen, and in the community participation

and shared responsibility that results from that

group’s determination of guilt or innocence.” 399

U.S., at 99.

The Court in Williams, although failing to reach the

issue of the required minimum did enunciate the principles

to be applied in that determination:

“(T]he number should probably be large enough

to promote group deliberation, free from outside

attempts at intimidation, and to provide a fair

possibility for obtaining a representative cross

section of the community.” /d.

When judged against these criteria, the five-person jury

provided by the Georgia statute here under review must be

found wanting.

If the purpose of a jury is to interpose the conscious

of the community between the prosecutor and a compliant

judge, a broad cross-section must be afforded in order to

assure that the compliant judge is not merely replaced by a

single compliant juror with the ability to determine guilt or

innocence and the further ability to enunciate highly

sensitive or totally insensitive personal values as the relevant

local community standards in a sensitive First Amendment

area.

IL.

A STANDARD OF SCIENTER' WHICH

AUTHORIZES OBSCENITY CONVICTIONS ON

MERE “CONSTRUCTIVE” KNOWLEDGE

IMPERMISSIBLY CHILLS THE DISSEMINATION

OF EXPRESSION PROTECTED UNDER THE

FIRST AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION.

In its charge to the jury. the trial court gave the

following instruction on the issue of scienter:

“[T]he word ‘knowing’ as used herein shall be

deemed to be either actual or constructive

knowledge of the obscene content of the subject

matter. And a person has constructive knowledge

12

of the obscene content if he has the knowledge of

facts which would put a reasonable and prudent

man on notice as to the suspect nature of the

material.” App. 10.

Petitioner objects to the above instruction to the extent

that it authorizes a conviction predicated on mere

“constructive” rather than actual knowledge.

The most recent pronouncement of this Court on the

requirements of scienter is found in Hamling v. United

States, 418 U.S. 87 (1974). There, this Court stated:

“We think the ‘knowingly’ language of 18 U.S.C.

§1461 and the instructions given by the district

court in this case satisfy the constitutional

requirements of scienter. It is constitutionally

sufficient that the prosecution show that the

defendant had knowledge of the contents of

material he distributes, and that he knew the

character and nature of the materials.” 418 U.S.,

at 123 (emphasis added).

Consistent with the above statement from Hamiling,

Petitioner contends that the prosecution must show that he

“had”’’ knowledge rather than that he “should have had”

knowledge of the content, character and nature of the

materials distributed.

There is virtually no evidence at all in the record that

Petitioner had any knowledge, constructive or otherwise, of

the nature, character or contents of the film with which he

is charged. The only evidence at all relating to this issue is

a statement by another employee that Petitioner is the

manager of the theatre. There was no evidence whatever

13

that he had personally viewed the film, nor was there any

evidence at all as to the general fare in the theatre.

Petitioner complains of the chilling effect upon the

distribution of non-obscene but sexually oriented matter

that a constructive knowledge standard of scienter must

necessarily produce. It was precisely such a chilling effect

which concerned this Court in its examination of the Los

Angeles obscenity ordinance which completely dispensed

with the scienter requirement. Smith v. California, 361 U.S.

147 (1959). As in Smith, Petitioner here complains of the

self-censorship produced by the lowered scienter standard

which will impose “a restriction upon the distribution of

constitutionally protected as well as obscene literature.” 361

U.S., at 153.

In dealing with the absolute liability obscenity

ordinance in Smith, the Court noted that booksellers facing

absolute criminal liability, without the necessity of proving

any knowledge, would tend to restrict the books they sell

to those which they have personally inspected. The Court

further noted that the effect of such a law impinges upon

the First Amendment rights of the public to have access to

reading material as well as to the First Amendment rights of

the distributor to make material available. In this regard the

Court noted:

“The booksellers burden would become the

public’s burden, for by restricting him the public’s

access to reading matter would be restricted. If

the contents of book shops and periodical stands

were restricted to maternal of which their

proprietors had made an inspection, they might be

depleted indeed.” 361 U.S., at 153.

14

It must be conceded that the constructive knowledge

prong of the Georgia scienter requirement now before the

Court does not produce as pronounced a chilling effect as

that which flowed from the abhsojute liability obscenity

ordinance in Smith, But, though the impermissible chilling

effect is not as great in the case at bar, it is nonetheless

present. It is true that booksellers and movie purveyors

facing the Georgia scienter requirement need not personally

inspect all of the materials they purvey. The must, however,

personally inspect a great percentage thereof at the risk that

a jury might later conclude that the title to a book or

movie or the cover of a magazine should have put them on

notice and necessitated an inspection of the entire film or

publication.

The covers of nearly every issue of Playboy, Gallery,

Penthouse, Oui, Playgirl, Hustler and several other simiar

magazines are sexually oriented in some degree. A jury

might well conclude that such covers, or even the general

public’s knowledge of the contents of such magazines,

would put a reasonable and prudent bookseller on notice

and thus charge him with constructive knowledge of the

contents of each and every issue. The cautious bookseller,

fearing such a conclusion by a jury, will remove all such

publications from his stands until he has an opportunity to

personally peruse them in their entirety. Such self-censorship

would, as the Court described in Smith, supra, tend to

“restrict the public’s access to forms of the printed word

which the state could not constitutionally suppress directly.”

361 U.S., at 154.

The same self-censorship would ensue with respect to

any book or non-pictorial magazine which has any allusion

15

to sex or nudity in its title or on its cover. The best selling

novel “Kinflicks” by Lisa Alther is hardly sexual but a

cautious bookseller might note the fact that the title is an

obvious word play from the slang terminology for

pornographic films — skinflicks. A cautious bookseller would

take it from his shelves until he read it since it is clear that

the printed word alone is capable of characterization as

obscene. Kaplan v. California, 413 U.S. 115 (1973). Due to

the necessarily longer time required for complete review of

books, the public’s access to textual material would be even

more restricted than its access to pictorial magazines.

With respect to films, this Court might recall its own

exposure to the motion picture film “Carnal Knowledge” in

Jenkins v. Georgia, 418 U.S. 153 (1974). After a viewing of

the film by the Court, the judgment of conviction was

unanimously reversed. The opinion of the Court stated that

the motion picture film could not, as a matter of

constitutional law, be found obscene. Despite the somewhat

enticing title, the Court's opinion displays the ex tremely

tame content of the film as follows:

“While the subject matter of the picture is, in a

broader sense, sex, and there are scenes in which

sexual conduct including ‘ultimate sexual acts’ is

to be understood to be taking place, the camera

does not focus on the bodies of the actors at such

times. There is no exhibition whatever of the

actors’ genitals, lewd or otherwise, dunng these

scenes. There are occasional scenes of nudity, but

nudity alone is not enough to make material

legally obscene under the Miller standards. 418

U.S., at 161.

16

Despite its rather mild content, the title of the film would

be sufficient to chill any exhibitor who might fear a jury

determination that the title gave him “constructive”

knowledge of the contents. Thus, despite the film’s national

critical acclaim which included an academy award

nomination, the cautious exhibitor would refrain from

booking the film and thus making it available in his area

until he had a chance to personally peruse it in its entirety.

The hypotheticals set forth above amply demonstrate

the impermissible chilling effect produced by the

constructive knowledge instruction. Through it, every

purveyor of presumptively protected First Amendment

material is at the mercy of an unpredictable jury

determination that some facet of the title or cover or label

on the material he distributes gave him reason to refrain

from distributing such material until he could complete a

review of it. By such a scheme, the self-censorship

condemned in Smith, supra, surfaces once again:

“The bookseller’s self-censorship, compelled by the

state, would be a censorship effecting the whole

public, hardly less virulent for being privately

administered. Through it, the distribution of all

books, both obscene and not obscene, would be

impeded.” 361 U.S., at 154.

The Respondent herein will surety claim, as did the

respondent in Smith, that the elimination of this lower

scienter requirement will interfere with the legal regulation

of obscene material be-ause “booksellers will falsely disclaim

knowledge of their books’ contents or falsely deny reason

to suspect their obscenity.” 361 U.S., at 154. But what the

Court said in Smith, is equally applicable here. The Court

17

there noted that the law is not impotent to explore the

actual state of a man’s mind. It was further noted that the

state need not prove that a bookseller actually perused the

material with which he is charged. Rather, it was held that

“the circumstances may warrant the inference that he was

aware of what a book contained, despite his denial.” /d.

Thus, Petitioner does not contend that State may not

prove his knowledge by circumstantial evidence. Rather, he

merely contends that the knowledge proved, whether by

circumstantial evidence or otherwise, must be actual rather

than “constructive” knowledge. A properly instructed jury

might well find that Petitioner “knew” the content of the

film he exhibited whether or not he actually looked at it.

Knowledge in this sense may be defined as a correct belief.

It is with just this sort of knowledge that attorneys “know”

that the new volume of United States Reports which just

arrived in the mail contains opinions of the United States

Supreme Court. They may be said to know this even before

they personally inspect the volume.

Petitioner does not contend that he can escape criminal

liability by refusing to review the material he distributes. If

such were the case, some might refuse to review the

material precisely because they “know” what they will find.

In a very real sense, such individuals might be held to

actually know the content of the material despite the lack

of a personal perusal. Petitioner thus concedes that a

properly instructed jury might find that he had actual

knowledge of the contents of the film whether or not he

personally viewed it.

What Petitioner does contend is that he cannot be

convicted in the absence of proof of what he actually knew,

whether this actual knowledge is proved by circumstantial

evidence or otherwise. Georgia’s scienter standard

encompassing constructive knowledge goes beyond this by

imposing a duty to make inquiry whenever a jury decides

that a reasonable and prudent person would have done so.

The requirement of such an inquiry, at the risk of criminal

liability, would seriously inhibit the distribution of

non-obscene material which has some allusion, however

vague or insubstantial, to sex or nudity in its title or cover.

This is precisely the impermissible chilling effect condemned

in Smith, supra, and the constructive knowledge standard

must thus be found constitutionally infirm.

THE MOTION PICTURE FILM “BEHIND THE

GREEN DOOR” IS AN ARTISTIC WORK OF

NATIONAL ACCLAIM WHICH MAY NOT AS A

MATTER OF APPLICABLE CONSTITUTIONAL

LAW, BE HELD OBSCENE SINCE IT IS

PROTECTED UNDER THE FIRST AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

The Court is respectfully requested to independently

review the alleged obscenity of the motion picture film

upon which Petitioner's conviction is predicated § in

furtherance of the doctrine of independent appellate review

which had its origins in this Court’s decision in Manual

_ Enterprises, Inc. v. Day, 370 U.S. 478 (1962).

19

The doctrine was again invoked by the Court in

Jacobellis v. Ohio, 378 U.S. 184 (1964) and more recently

in Jenkins v. Georgia, 418 U.S. 153 (1974). Jenkins

involved a conviction under a state obscenity statute

founded upon the exhibition of the film “Camal

Knowledge.” This Court reversed the conviction based upon

its own viewing of the film, and the finding that the film

could not, as a matter of constitutional law, be held

obscene.

The Court is respectfully called upon to perform the

judicial duty above delineated and thus to determine the

obscenity vel non of the nationally acclaimed motion

picture film “Behind the Green Door” upon which

Petitioner’s conviction rests.

In any independent review, the past findings of this

Court on the sole issue of obscenity have obvious bearing.

In this respect it is important to note that findings of

obscenity have been reversed by this Court as to. press

materials devoted entirely to explicit depictions or

descriptions of sexual activities including detailed and

vernacular descriptions reaching the ultimate in explicitness

as to heterosexual intercourse, masturbation, beastiality,

oral-genital intercourse, sadomasochism, and homosexual

activity. See, e.g. Memoirs v. Massachusetts, 383 U.S. 413

(1966) (“Fanny Hill”); Aday v. United States, 388 U.S. 447

(1967) (“Sex Life of a Cop” described at 357 F.2d 855),

Corinth Publications v. Westberry, 388 U.S. 448 (1967)

(“Sin Whisper” described at 146 S.E.2d 764), Mazes v.

Ohio, 388 U.S. 453 (1967) (“Orgy Club”); Hoyr ».

Minnesota, 399 U.S. 524 (1970) (“The Way of a Man with

a Maid,” “Lady Susan’s Cruise Lover,” and three other

20

books); Grove Press v. Gerstein, 378 U.S. 577 (1964)

(“Tropic of Cancer’’).

In the area of motion picture films, this Court has

reversed findings of obscenity as to films which depict

totally nude women; films which depict nude and partially

nude men and women engaged in sexual gyrations, simulated

intercourse, and simulated oral-genital contact, all

emphasizing pubic and rectal areas; and films depicting

lesbian sexual activity and heterosexual activity between

men and women. Moreover, this Court has affirmed a

reversal by the Ninth Circuit Court of Appeals of a finding

of obscenity as to a “stag film depicting a nude woman

masturbating, with emphasis on the female genitalia and

sexual gyrations.” Pinkus v. Pitchess, 429 F.2d 416 (CA

91970), affirmed sub nom. Pinkus v. California, 400 U S.

922 (1970).

In its determination of this particular issue upon which

the Court has granted certiorari, Petitioner would

respectfully urge the Court to review the developments

flowing from the landmark decisions in Miller v. California,

413 US. 15 (1973), and its companion cases. Petitioner

would further respectfully urge the Court to reconsider

those decisions in light of consequences which they have

precipitated.

If the reformulation of obscenity standards in Miller

was intended, at least in part, to simply the issues and

alleviate judicial involvement in such determinations, the

history since Miller has clearly shown the contrary to be the

case. Only one year after the pronouncement, the Court

found itself once again mired in what Mr. Justice Harlan

21

referred to as “the intractable obscenity problem.” /nterstate

Circuit, Inc. v. Dallas, 390 U.S. 676 (1968) (Harlan, J.,

concurring and dissenting). Many members of the Court can

well recall that, in order to determine the issue presented in

Jenkins, the Court was required to screen the film “Carnal

Knowledge” and make an independent determination of its

alleged obscenity. This development has given credence to

Mr. Justice Brennan’s prediction that, even under the Miller

test:

“One cannot say with certainty that material is

obscene until at least five members of this Court,

applying inevitably obscure standards have

pronounced it so.” Paris Adult Theatre I v. Slaton,

413 U.S. 49, 92 (1973) (Brennan, J., dissenting).

The impact of these landmark decisions upon the

judiciary was once again brought to the Court’s attention in

Marks v. United States, U.S. (No. 75—708, decided

March 1, 1977). In Marks, the Court had before it the

question of whether the doctrine of independent appellate

review necessitates an actual viewing of materials found

obscene at the trial level. The Solicitor General, confessing

error, conceded that such an actual review is necessary at

least at the initial appellate stage. While the Court found it

unnecessary to expressly address this issue, it did refer to

the Court of Appeals’ characterization of the materials,

made without an actual viewing, as “of dubious value.”

U.S. , nil.

Fven the requirement of a single level of actual review,

especially in cases involving motion picture films and full

length books, places an incredible strain upon the rare

resources of judicial time and energy. Because of the

22

widespread concern over our presently overworked judiciary,

Petitioner respectfully urges the Court to re-examine the

earlier decisions in light of the substantial stress thereby

placed upon an already overworked judicial structure. As

Mr. Justice Brennan stated in Jenkins, supra:

“Because of the attendant uncertainty of such a

process [appellate review of allegedly obscene

materials} and its inevitable institutional stress

upon the judiciary, | continue to adhere to my

view [as to the constitutionality of obscenity

laws]. 418 U.S., at 165 (Brennan, J., dissenting).

If a reconsideration of its 1973 pronouncements is to

be undertaken by the Court, it is important to note the

state of the record below. There is no evidence whatever

that either Petitioner or the theater which employed him

engaged in the distribution of any materials to juveniles or

the exposure of any materials to unconsenting adults. To

the contrary, they were merely engaged in a business

described by Mr. Justice Stevens as “providing another with

material which he has a constitutional right to possess. See

Stanley v. Georgia, 394 U.S. 557.” Marks v. United States.

U.S. (Stevens, J., concurring and dissenting). It is

just for this conduct that Petitioner has been sentenced to a

year of imprisonment. The Court is respectfully urged to

reconsider such consequences are constitutionally permissible

or whether, as a matter of law, all “community standards”

in this country must contain an element of tolerance

reflecting the values of the First Amendment.

lf, as the First Amendment indicates, our entire

governmental system is predicated upon a preference toward

testing ideas in the market place rather than the courtroom.

23

the necessary presence of this element in all local

community standards leads to the inescapable conclusion

that Petitioner here cannot stand convicted of a crime. As

Mr. Justice Douglas stated in Paris Adult Theatre I iy.

Slaton, supra:

“Our society— unlike most in the world -

presupposes that freedom and liberty are in a

frame of reference that makes the individual, not

government, the keeper of his tastes, beliefs, and

ideas. That is the philosophy of the First

Amendment: and it is the article of faith that sets

us apart from most nations in the world.” 413

U.S., at 73 (Douglas, J. dissenting).

With a view toward alleviating the present institutional

strain upon the judiciary and with the further view of

reaffirming that “article of faith that sets us apart from

most nations in the world,” the Court is respectfully urged

to consider whether Petitioner may be constitutionally

imprisoned for the conduct in which he has engaged. If that

possibility is found to exist, the Court is urged to find that

the motion picture film, in the circumstances in which it

was shown, cannot, as a matter of applicable constitutional

law, be held obscene.

24

CONCLUSION

For all of the above reasons Petitioner’s conviction

should be reversed.

Respectfully submitted,

ROBERT EUGENE SMITH, Esq.

1409 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 892-8890

Attorney for Petitioner

Of Counsel:

MICHAEL CLUTTER, Esq.

1409 Peachtreet Street, N.E.

Atlanta, Georgia 30309

(404) 892-8890