Respondents Brief — Ballew v. Georgia

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

NO. 76-761

CLAUDE D. BALLEW,

Petitioner,

vs.

STATE OF GEORGIA,

Respondent.

BRIEF OF RESPONDENT

LEONARD W. Ruopes

Room 53 State Court Building

160 Pryor Street, S.W.

Atlanta, Georgia 30303

Counsel for Respondent

TABLE OF CONTENTS

EEE SEEPS OPP ETTEPTTETELTT EN 1

I. AJURY OF FIVE PERSONS IS CONSTI-

TUTIONALLY ADEQUATE FOR THE

TRIAL OF MISDEMEANOR CASES

WHERE THE MAXIMUM POssIBLE

IMPRISONMENT IS TWELVE MONTHS. 1

Il. JURY INSTRUCTIONS ON SCIENTER

THAT REQUIRED THE STATE TO

PROVE BEYOND A REASONABLE

DOUBT THAT THE ACCUSED HAD

KNOWLEDGE, EITHER ACTUAL OR

CONSTRUCTIVE, AND THAT CON-

STRUCTIVE KNOWLEDGE Is

KNOWLEDGE OF FACTS WHICH

WOULD PUT A REASONABLE AND

PRUDENT PERSON ON NOTICE As TO

THE SUSPECT NATURE OF THE

MATERIAL, ARE SUFFICIENT TO

MEET CONSTITUTIONAL MINIMUM

STANDARDS .. ittitbedecessesss ©

Ill. THE MOTION PICTURE FILM “BEHIND

THE GREEN DOOR” IS OBSCENE AND

IS THEREFORE NOT PROTECTED

EXPRESSION UNDER THE FIRST AND

FOURTEENTH AMENDMENTS OF THE

Nek c ccc cccecces: 13

em Ft. oeasios »: ae

CERTIFICATE OF SERVICE......... i“

TABLE OF CITATIONS

Page

Baldwin v. New York, 399 U.S. 66 (1970). ........ 3,6

Ball v. The State of Georgia, 9 Ga. App. 162,

- f \ Reon eae 2

Ballew v. The State, 138 Ga. App. 530............ 14

Boyce Motor Lines, Inc. v. United States,

ERE Raa are ll

California v. Kuhns, 61 Cal. App. 3d 735, 132 Cal.

Be, CEP Es Oc cer ccdecesdécassatadcnecsos 9,10

Cherokee News and Arcade, Inc. v. State,

509 P. 2d 917 (Okla. Crim. App. 1973)........ 10,11

Colgrove v. Batten, 413 U.S. 149;

SN i, a ee es 5

Duncan v. Louisiana, 391 U.S. 145; 88 S. Ct. 1444. 2

Gasoline Products Co. ». Champlin Co:, 283 U.S.

494; 51 S. Ct. 513; 75 L. Ed. 1188 (1931)....... 5

Ginsberg ». New York, 390 U.S. 629 (1968)........ s

Hamling v. United States, 418 U.S. 87 (1974). ..... i)

Hosey v. Jackson, 309 F. Supp. 527

SR Re oe ee cue eaned 12

Interstate Circuit, Inc. v. Dallas, 390 U.S. 676;

2. 0 eer rr er 14,15

Jenkins v. Georgia, 418 U.S. 153 (1974)... ........ 14

Johnson v. Louisiana, 406 U.S. 356 (1971)... ..... 4,5

Kuhns v. California, __.__._ U.S. —__.,

No. 76-070, 21 CrL, 4078... ...........005:: ae

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

.. t ee 8,14,15

Mishkin v. New York, 383 U.S. 502 (1966)........ 8

TABLE OF CITATIONS —Continued

Page

Nash v. United States, 229 U.S. 373 (1913). ....... 11

Orito v. State, 55 Wis. 2d 161, 197 N.W. 2d 763

AR) Ae ann aaa ee ll

People v. Adler, 25 Cal. App. 3d 24, 100 Cal. Rptr.

RS ert ee er aaa an 10

People v. Harris, 192 Cal. App. 2d 887, 13 Cal.

RRR eR IT ie ae ope a ae 10

Price v. Commonwealth, 213 Va. 113, 189 3.E.

RR ee Si a ER RE Pm Sa eo 11

Redrup v. New York, 386 U.S. 767; 87 8. Ct. 1414:

18 L. RIO TEE See 14,15

Rosen v. United States, 161 U.S. 29 (1896)......... 7

Roth v. United States, 354 U.S. 476 (1957)......... 14

Smith v. California, 361 U.S. 147 (1959). ......... 8

Torres v. Delgado, 391 F. Supp. 379 (D.C.P.R.

1974), affirmed 510 F. 2d 1182 (Ist Cir. 1975)... 3

United States v. Wurzbach, 280 U.S. 396 (1930).... 11

Walker v. Ohio, 398 U.S. 434; 90 8. Ct. 1884;

|S & | | 86S 15

Willams v. Florida, 399 U.S. 78; 90 8. Ct. 1893

Ph <-ccudashecatel¢hddeddescasabachienses 23

STATUTES

Criminal Code of Georgia, Section 26-2101........

Georgia Laws 1976 Session, page 3019............

Georgia Laws 1976 Session, page 3023............

New York Penal Law, Section 1141..............

Be es ED vn cccdnceccttcccecsce

ARTICLES

THE FIVE-MAN CIVIL JURY,

51 Geo. L.R. 120, 137 (1962).............

iv

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

CLAUDE D. BALLEW,

Petitioner,

vs.

STATE OF GEORGIA,

Respondent.

BRIEF OF RESPONDENT

ARGUMENT

I.

A JURY OF FIVE PERSONS IS CONSTITU-

TIONALLY ADEQUATE FOR THE TRIAL OF

MISDEMEANOR CASES WHERE THE MAXI-

MUM POSSIBLE IMPRISONMENT IS TWELVE

MONTHS.

Petitioner was tried in the Criminal Court of Fulton

County' by a jury of five persons? selected from a panel

of twelve prospective jurors qualified to serve, with

the Petitioner having four peremptory challenges, the

State having three peremptory challenges, and with

the Petitioner having benefit of the first and last chal-

lenge.

t The name of the Criminal Court of Fulton County has been

changed, effective January 2, 1977, by the merger of the Criminal

Court of Fulton County with the Civil Court of Fulton County into

a court known as and named the State Court of Fulton County.

Georgia Laws 1076 Session, p. 3023.

? Effective March 24, 1976, the number of jurors was changed

from five to six in the Criminal Court of Fulton County. Georgia

Laws 1976 Session, p. 3019.

l

2

It was necessary that each individual juror believe,

beyond a reasonable doubt, that Petitioner was guilty

of the offenses with which he was charged and that all

the elements of the crimes were present, including the

fact of obscenity. Jury verdicts in Georgia must be

unanimous, Ball v. The State of Georgia, » Ga. App.

162, 20 S.E. 888 (1911), and the jury in this case was

so charged (App. 10).

The five-man jury comports with this Court’s de-

cision in Williams v. Florida, 399 U.S. 78 (1970). In

that case, this Court held a six-man jury was constitu-

tionally adequate in State trials under the Sixth and

Fourteenth Amendments. This Court said:

“The purpose of the jury trial, as we noted in

Duncan, is to prevent oppression by the Govern-

ment. ‘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 prose-

cutor and against the complaint, biased, or ec-

centric judge.’ Duncan v. isiana, supra, 391

U.S., at 156; 88 8. Ct., at 1451. Given this purpose,

the 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. The

performance of this role is not a function of the

particular number of the body that makes up the

ury. To be sure, the number should probaly be

arge enough to promote group deliberation, free

from outside attempts at intimidation, and to pro-

vide a fair possibility for obtaining a representative

cross section of the community. But we find little

reason to think that these goals are in any mean-

ingful sense less likely to be achieved when the

jury numbers six, than when it numbers 12—

particularly if the requirement of unanimity is re-

3

tained, And, certainly the reliahility of the jury as a

fact-finder hardly seems likely to be a function of its

size.

It might be suggested that the 12-man jury gives

a defendant a greater a - since he has more

‘chances’ of finding a juror who will insist on ac-

quittal and thus prevent conviction. But the ad-

vantage might just as easily belong to the State,

which also ood s only one juror out of twelve in-

sisting on guilt to prevent acquittal.’’ (Emphasis

supplied) Williams v. Florida, 399 U.S. 78, 103,

104 (1970).

It is clear from Williams that mere size is not the

controlling factor in the Sixth Amendment right to a

jury trial. One important factor is the insulation pro-

vided by a law body standing between the government

and the defendant. See Baldwin v. New Y ork, 399 U.S.

66 (1970) ; Torres v. Delgado, 391 F. Supp. 379 (D.C.P.R.

1974), affirmed 510 F.2d 1182 (1st Cir. 1975).

The Petitioner has not complained that an arbitrary

exclusion of a particular class has taken place. Williams

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

Petitioner argues that a lesser number than 12 or

six denies a cross section—however, this Court said in

Williams:

“ . , the concern that the cross section will be

diminished if the jury is decreased in size from 12

to six seems an unrealistic one.’ Williams v.

Florida, 399 U.S. 104 (1970).

As one commentator has said (speaking of civil

cases),

“Because the members of the five-man jury rep-

resent a cross section unit of the community, they

will continue to bring into the courtroom the di-

versity of viewpoint, the objectivity of detach-

4

ment, the non-professional sense of values, and

the spirit of justice and fairness unhampered by

precedent, which are the foundations of the jury

system as we respect it. Moreover, all of the

historic values placed upon the jury as a ‘casual

tribunal’ attach readily to the five-member jury

as it actually functions in the jury box; human

virtues—-and shortcomings—are fully present

whether there are twelve or five jurors.”” THE

FIVE-MAN CIVIL JURY, 51 Geo. L.R. 120,

137 (1962).

This court has not decided what the minimal number

of jurors may be; however, in Williams the Court

stated in a footnote that six is above the minimum:

“We have no occasion in this case (Williams) to

determine what minimum number can still con-

stitute ‘a jury,’ but we do not doubt that six is above

that minimum” (Emphasis supplied), Williams v.

Florida, 399 U.S. 78, 92 N. 28.

.) . i ee |

.. . As to the crimes triable by a five-man jury,

if appellant’s position is that it is easier to convince

nine of 12 jurors than to convince all of five, he is

simply challenging the judgment of the Louisiana

Legislature. That body obviously intended to vary

the difficulty of proving guilt with the gravity of

the offense and the severity of the punishment.

We remain unconvinced by anything appellant

has presented that this legislative judgment was

defective in any constitutions! sense.’’ Johnson v.

Louisiana, 406 U.S. 356, 364, 365 (1971).

The Court again in Colgrove v. Battin, 413 U.S. 149

(1973) was faced with making a decision on the question

of the number of jurors required, this time the question

arose under the Seventh Amendment and concerned

civil juries. The Court in following Williams v. Florida,

supra, stated:

‘. .. Keeping in mind the purpose of the jury trial

in criminal cases to prevent government oppres-

sion, Willams, 399 U.S., at 100, 90S. Ct., at 1905,

and, in criminal and civil eases, to assure a fair and

If six is above the minimum, five cannot be below

the minimum. There is no number in between.

In Johnson v. Louisiana, 406 U.S. 356 (1971) the

Court considered the jury system of Louisiana and

wrote:

‘Louisiana has permitted less serious crimes to be

tried by five jurors with unanimous verdicts, more

serious crimes have required the assent of nine of

i2 jurors, and for the most serious crimes, a unan-

imous verdict of 12 jurors is stipulated. In ap-

pellant’s case, nine jurors rather than five or 12

were required for a verdict. We discern nothing

invidious in this classification. We have held that

equitable resolution of factual issues, Gasolin«

Products Co. rv. Champlin (‘o.. 283 US. 494. 498.

51 Ss. Ct. 513, 514, 75 L. Ed. 1188 (1931), the

question comes down to whether jurv performance

is a function of jury size. In Williams, we rejected

the notion that ‘the reliability of the jurv as a

factfinder ... jis! a funetion of its size,” 399

U.s., at 100-101, 90 S. Ct., at 1906, and nothing

has been suggested to lead us to alter that con-

clusion. Accordingly, we think it cannot be said

that 12 members is a substantive aspect of the

right of trial by a jurv.” 413 U.S. 149, 157: 93

Ss. Ct. 2448, 2453 (1973

the States are free under the Federal Constitution,

to try defendants with juries of less than 12 men.

Willams v. Florida, 399 U.S. 78 (1970).

[t is clear that the Constitution does not require anv

specific number of persons to make apa trial yur >and

had the framers of the Constitution. and the Amend-

6

ments thereto, intended that trial juries be composed

of not less than twelve persons, or any other number,

the minimum number could easily have been written

into the Constitution. This was not done, and there-

fore, it can be assumed that it was intended that the

number required be flexible and left to Congress and the

legislatures of the various states to make that deter-

mination.

In Williams v. Florida, supra, a six-person jury was

held to be constitutionally adequate in a case involving

the felony offense of rot bery and where a life sentence

‘was imposed. In this case, the Petitioner was tried by

a five-person jury for misdemeanor offenses where the

maximum imprisonment could be no more than twelve

months for each offense.

It is clear that the Sixth Amendment requires a jury

trial in any ease other than a “petty offense,” Baldwin

v. Vew York, 399 U.S. 66 (1970), but it is also clear that

the number of jurors is constitutionally irrelevant as

long as it is enough to carry out the jury's historical

function and five jurors is adequate for that purpose.

Il.

JURY INSTRUCTIONS ON SCIENTER THAT

REQUIRED THE STATE TO PROVE BEYOND A

REASONABLE DOUBT THAT THE ACCUSED

HAD KNOWLEDGE, EITHER ACTUAL OR CON-

STRUCTIVE, AND THAT CONSTRUCTIVE

KNOWLEDGE IS KNOWLEDGE OF FACTS

WHICH WOULD PUT A REASONABLE AND

PRUDENT PERSON ON NOTICE AS TO THE

SUSPECT NATURE OF THE MATERIAL, ARE

SUFFICIENT TO MEET CONSTITUTIONAL

MINIMUM STANDARDS.

7

Section 26-2101 of the Criminal Code of Georgia

provides, in part, as follows:

“(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 offers to do so, or possesses such

material with the intent to do so, provided that

the word ‘knowingly,’ as used herein, shall be

deemed to be either actual or constructive knowl-

edge of the obscene contents of the subject matter,

and a person has constructive knowledge of the ob-

scene contents if he has knowledge of facts which

would put a reasonable and prudent person on notice

as to the suspect nature of the material... .” (Em-

phasis added)

The trial court charged the jury on scienter according

to the provisions of the Georgia statute, supra, and this

charge is in keeping with a line of cases on the question

of scienter in obscenity cases dating back to the year

1896 when the court held that the person charged with

the offense of mailing obscene material must know or

have notice of the contents of the material.

“The inquiry, in proceedings under Rev. Stat.

$3893, is whether the paper charged to have been

obscene, lewd, and lascivious was in fact of that

character, and if it was of that character and was

deposited in the mail by one who knew or had notice

at the time of its contents, the offense is complete,

although the defendant himself did not regard the

paper as one that the statute forbade to be carried

in the mails.”” (Emphasis added) Rosen v. United

States, 161 U.S. 29 (1896).

8

Rosen did not require the accused to have knowledge

of the obscenity of the material, only notice of its

contents.

‘.. . Eyewitness testimony of a bookseller’s perusal

of a book hardly need be a necessary element in proving

his awareness of its contents. The circumstances may

warrant the inference that he was aware of what a book

contained, despite his denial.

We need not and most definitely do not pass today

on what sort of mental element is requisite to a consti-

tutionally permissible prosecution of a bookseller for

carrying an obscene book in stock; whether honest mis-

take as to whether its contents in fact constituted

obscenity need be an excuse; whether there might be

circumstances under which the State constitutionally

might require that a bookseller investigate further, or

might put on him the burden of explaining why he did

not, and what such circumstances might be.

Smith v. California, 361 U.S. 147, 154 (1959).

The Georgia statute, 26-2101 supra, is very similar

and compares to New York statutes dealt with by the

Court in Vishkin v. New York, 383 U.S. 502 (1966) and

Ginsberg v. New York, 390 U.S. 629 (1968).

The Mishkin case pointed out that the New York

Court of Appeals had construed Section 1141 of the

New York Penal Law to require the “vital element of

scienter,”’ and it defined the required mental element

in these terms:

“a reading of the statute ($1141) as a whole

clearly indicates that only those who are in some

manner aware of the character of the material they

attempt to distribute should be punished. It is not

innocent but ealeulated purveyance of filth which

is exorcised. . 1.

9

Section 26-2101 of the Georgia Code requires “‘know!]-

edge of facts which would put a reasonable and prudent

person on notice,’’ while Section 1141 of the New York

Penal Law requires the accused to be ‘“‘in some manner

aware.”

The statute dealt with in Ginsberg defined knowingly

as ‘knowledge’ of, or “reason to know”’ of, the char-

acter and content of the material.

Neither Mishkin nor Ginsberg requires actual know]-

edge as contended by the Petitioner herein. Both cases

were reviewed and followed in Hamling v. United States,

418 U.S. 87 (1974), where the Court construed 18

U.S.C. $1461, and held:

“To require proof of a defendant's knowledge of

the legal status of the materials would permit the

defendant to avoid prosecution by simply claiming

that he had not brushed up on the law. Such a

formulation of the scienter requirement is required

neither by the language of IS U.S.C. $1461 nor by

the Constitution.”

In the instant case, the Petitioner was arrested on

two separate occasions for showing the same motion

picture film. Suffice it to say that he had actual notice

and knowledge of the nature of the film without anv

doubt on the second occasion, and therefore, the charge

given the jury on constructive knowledge, even if error,

was harmless to the Petitioner.

In the case of Aulns rv. California, No. 76-970, this

Court recenthy denied petition for certiorari, 21 CrL

4078, to review jury instructions based upon the Cali-

fornia obscenity statute which defines “knowingly” as

“\be| aware of the character of the matter... .° Cali-

fornia v. Kuins, 61 Cal. App. 3d 735, 132 Cal. Rptr.

10

725, 737 (1976).

Petitioner in this case concedes that proof of seienter

may be made by circumstantial evidence (Pet. Br. 17).

Respondent contends and respectfully submits that to

prove the accused was aware of facts that would put a

reasonable and prudent person on notice of the suspect

character of the material, is proof of knowledge of the

character of the material by circumstantial evidence.

Petitioner contends that the only evidence to show

his knowledge of the nature, character or contents of

the film was a statement by another employee that the

Petitioner is the manager of the theater (Pet. Br. 12).

Le it remembered that the Petitioner was twice ar-

rested for the exhibition of the film in question and that

on the day before the second arrest, the Petitioner,

having recognized the officer, hesitated and reluctantly

sold the officer an admission ticket (Tr 29, 30). This

evidence shows that the Petitioner was aware that he

was engaged in proscribed conduct by exhibiting ob-

scene material, vet he continued that conduct and was

again arrested.

There was further evidence that a sign was posted

showing that there was being displayed in the theater

an “X-rated movie and nudity, ete., if under age please

do not enter’ (Tr 59). The theater management cannot

advertise a fact to give the publie notice of the nature of

the motion picture film without being aware themselves

of the fact so advertised. The Petitioner must take

notice of that which he gives others notice.

A sign posted which reads “Adults Only” is admis-

sible to show scienter. See People v. Adler, 25 Cal. App.

3d 24, 100 Cal. Rptr. 726 (1972); People v. Harris, 192

Cal. App. 2d 887, 13 Cal. Rptr. 542 (1961); Cherokee

1]

News and Arcade, Inc. v. State, 509 P. 2d 917 (Okla.

Crim. App. 1973); Orito v. State, 55 Wis. 2d 161, 197

N.W. 2d 763 (1972).

A sign posted which reads “X-rated—Potentially

Offensive to Some People”’ is admissible on the issue of

scienter. Price vr. Commonwealth, 213 Va. 113, 189 S.E.

2d 324 (1972).

In the case of Nash v. United States. 2290 U.S. 373

(1913), the Court said:

“In many instances a man’s fate depends upon his

rightly estimating, that is as the jury subsequently

estimates it, some matter of degree, and there is

no constitutional difficulty in the way of enforeing

the criminal provisions of the Sherman Anti Trust

Act on the ground of uncertainty as to the pro-

hibitions.”’

Whenever the law draws a line. there will be cases

very near each other on opposite sides. The precise

course of the line may be uncertain, but no one ean

come near it without knowing ihat he does so, if he

thinks, and if he does so, it is familiar to the criminal

law to make him take the risk. Vash v. United Siates.

supra ; lnited States vo Wurzbach, 280 U.S. 306, 300

(1930). One who goes perilously close to an area of

proscribed conduct shall take the risk that he may cross

the line. Boye Motor Lines, Inc. v. United States, Jj42

U.S. 337, 340

The evidence necessary FO prove guilty knowl dye in

the prosecution of one charged with the exhibition of an

obscene motion picture film differs greatly with that

necessary to show guilty knowledge on the part of a

book dealer charged with distributing obscene books.

preview

leasing it for public showing. . . ."’ Hosey v. Jackson,

309 F. Supp. 527, 532 (S.D. Miss. 1970), reversed

on other grounds 401 U.S. 987 (1971).

In summary, on the question of scienter, the Georgia

law requires and the jury was instructed that the State

must prove, as a bare minimum, that the Petitioner had

knowledge of facts which would put a reasonable and

prudent person on notice as to the suspect nature of the

material. No more has ever been required. “Notice of

its contents” is required by Rosen v. United States,

supra; “in some manner aware” was sufficient in

Mishkin v. New York, supra; “reason te know” was

sufficient in Ginsberg vr. New York, supra; “be aware of

the character of the matter’ was sufficient in Kuhns v.

California, supra; eyewitness testimony that the Peti-

tioner viewed the film is not necessary, Smith v. Cali-

fornia, supra; proof of knowledge of the legal status of

the material is not required, Hamling v. United States,

supra; and under the rationale of Hosey r. Jackson,

supra, in a film ease such as this, guilty knowledge may

be presumed.

13

III.

THE MOTION PICTURE FILM “BEHIND THE

GREEN DOOR” IS OBSCENE AND IS THERE-

FORE NOT PROTECTED EXPRESSION UNDER

THE FIRST AND FOURTEENTH AMEND-

MENTS OF THE UNITED STATES CONSTITU-

TION.

The trial jury, after receiving proper charges as to

the law involved, applied the law and returned its ver-

dict finding the motion picture film “Benind the Green

Door” obscene.

In its opinion on review of this case, the Court of

Appeals of Georgia in describing the film wrote:

“Our duty to the constitutional guarantees

is no less than that of the justices of the respective

Supreme Courts of the United States and of this

State, and although we abhor even the suggestion

of censorship we nevertheless viewed an exhibition

of this film in its entirety. . . .

The film, considered as a whole, and applying con-

temporary community standards, predominantly

appeals to the prurient interest. It is without re-

deeming social value, and it is a shameful and

morbid exhibition of nudity with particular and

all-encompassing em is on sexual acts. It goes

substantially bey customary limits of candor

in representing and portraying nud ty and sex.

The film presents patently offensive exhibitions

and representations of ultimate sexual acts and

manipulations, normal and perverted. It shows

unabashedly offensive and lewd views of the genitals

of both male and female participants, and is replete

with portrayals of individual and group acts of

masturbation, cunnilingus, fellatio and sexual

intercourse. It is degrading to sex. Except for the

sake ensuing i

-. Miller v. California, 413 U.S. 15, 35, supra.

film ‘Behind the Green Door’ is obscene as a

matter of constitutional law and fact, and is un-

protected by the First and Fourteenth Amend-

ments.” . “Daiwa The State, 138 Ga. App. 530.

tenses ine taket ust teeenint

contention that this Court should make an independent

‘review and determination of obscenity vel non. It ap-

pears to be his contention that this Court should make

an independent review and determinativn of obscenity

vel non on all materials brought into question in the

State Courts. With the exception of Jenkins v. Georgia,

418 U.S. 153 (1974), all the cases cited by the Petitioner

were decided during the period between Roth v. United

States, 354 U.S. 476 (1957) and Miller v. California,

413 U.S. 15 (1973); a period when no majority of the

Court could agree on a standard to determine what

constitutes obscene, pornographic material subject to

regulation under the States’ police power, and at which

time convictions were reversed by this Court sum-

marily.

“Apart from the mrs yy in the Roth

case, no majorit the Court at an ven

oie ds b aah eae

mine what constitutes obscene, pornographic ma-

terial subject to regulation under the States’

Porn a net Redrup v. New York, 386 U.S. at

771, 87 8. Ct. at 1415-1416. We have seen ‘ a

variety of views among the members of the Court

unmatched in any other course of constitutional

adjudication.’ p or Bw Circuit, Inc. v. Dallas, 390

15

U.S., at 704-705, 88 S. Ct. at 1314 (Harlan, J.,

concurring and dissenting) .” . Miller v. California,

413 U.S. 15, 22, 88 8. Ct. 2607, 2614.

“In the absence of a majority view, this Court was

compelled to embark on the practice of summarily

reversing convictions for the dissemination of ma-

terials that at least five members of the Court, ap-

ying their separate tests, found to be protected

y the First Amendment. Redrup v. New York,

386 U.S. 767, 87 8S. Ct. 1414, 18 L. Ed. 2d 515

(1967). Thirty-one cases have been decided in this

manner. Beyond the necessity of circumstances,

however, no justification has ever been offered in

support of the Redrup ‘policy.’ See Walker v. Ohio,

398 U.S. 434-435, 90 8. Ct. 1884, 26 L. Ed. 2d 385

(1970) (dissenting opinions of Burger, C. J., and

Harlan, J.). The Redrup procedure has cast us in

the role of an or —_— of censorship

for the 50 States, sub — a ging each piece

of material brought California,

413 U.S. 15, 883. Ct. 2607, 2614 (Footnote 3).

In Jenkins v. Georgia, supra, the film “Carnal Knowl-

edge’’ was in question and the scenes in which sexual

conduct including ‘‘ultimate sexual acts” is to be under-

stood to be taking place, the camera does not focus on

the bodies of the actors at such times. Such is not the

case in the film “Behind the Green Door” where, not

only does the camera focus on the bodies of the “‘actors”’

while engaged in “ultimate sexual acts,” but it shows

offensive and lewd views of the genitals of both male

and female participants.

Petitioner contends that the motion picture film

“Behind the Green Door” is an artistic work of national

acclaim. There is absolutely nothing in the record or

the transcript of the evidence in this case to support

that contention.

16

Petitioner urges the Court to lift all checks and

restraints on the distribution of obscene materials be-

cause of the widespread concern over our overworked

judiciary. We, too, are concerned over our overworked

judiciary. We in the prosecutorial field are a part of

the same system that finds itself overworked because

of the high incidence of criminal activity. Is this suf-

ficient reason to back off, to shirk our duty and to let

the purveyors of filth have a free hand? Would the

Petitioner suggest that the Court give pill peddlers,

burglars, rapists, robbers, murderers, or any of them a

free hand because of concern over our overworked

judiciary?

The motion picture film “Behind the Green Door” is

hard-core pornography at its worst and its showing by

the Petitioner on both occasions for which he was con-

victed was ‘‘caleulated purveyance of filth.”’

17

CONCLUSION

For all the foregoing reasons, Respondent urges the

Court to affirm the conviction in this case.

Respectfully submitted,

Leonarp W. Ruopes

Assistant Solicitor General

State Court of Fulton County

Counsel for Respondent

53 State Court Building

160 Pryor Street, 8.W.

Atlanta, Georgia 30303

(404) 572-2911

18

CERTIFICATE OF SERVICE

I hereby certify that I am a member of the Bar of

The Supreme Court of the United States in good stand-

ing, and that I have this day deposited in the United

States Mail three (3) copies of the foregoing Brief of

Respondent with first-class postage prepaid, addressed

to Robert Eugene Smith, Esquire, 1409 Peachtree

Street, N.E., Atlanta, Georgia 30309, Attorney for

Petitioner.

This _.___—-«dday of July, 1977.

LEONARD W. RHODES

Counsel for Respondent