Opposition — Ballew v. Georgia

Supreme Court, U. &

FILED

} MAY 15 1978

\

MICH

AEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

NO. 77-1425

CLAUDE D. BALLEW,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

THE PETITION FOR WRIT OF CERTIORARI

LEONARD W. RHODES

Room 53 State Court Building

160 Pryor Street

Atlanta, Georgia 30303

Counsel for Respondent

INDEX TO BRIEF

SS

QUESTIONS RAISED....................0005.

ARGUMENT AND CITATIONS OF

EO ee

A. The Jury Instructions on Scienter Met

Constitutional Minimum Standards..........

B. The Motion Picture Films Dream Come True

and The Heist are Obscene and Therefore

not Protected by the First and Fourteenth

Ne ce beseces

ee eececece

CERTIFICATE OF SERVICE..................

TABLE OF CASES

Ballew v. Georgia, 435 U.S. (1978)

EEE Ee ee ee

Boyce Motor Lines, Inc. v. United States,

SS rer

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

132 Cal. Rptr. 725, 737 (1976). ................

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

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

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

Kuhns v. California, _____ U.S. _____,

TE POSS ud veda dvcdsecseccessececes

,e

. 9

TABLE OF CASES (Cont'd) IN THE

Page | °

Miller v. California, 413 U.S. 15 (1973)..... ....... 7 ] Supreme Court of the United States

Mishkin v. New York, 383 U.S. 502 (1966).......... 4 | OCTOBER TERM, 1977

Nash v. United States, 229 U.S. 373 (1913).......... 5 NO. 77-1425

Robinson v. Georgia, 485 U.S. _____ (1978)

SST a ea oe 6 CLAUDE D. BALLEW,

Rosen v. United States, 161 U.S. 29 (1896)........... 3 Petitioner,

Roth v. United States, 354 U.S. 476 (1957)........... 7 v.

Sewell v. Georgia, 435 U.S. _____ (1978) STATE OF GEORGIA,

NN sO ee 6 Respondent.

Smith v. California, 361 U.S. 147 (1959). ........... 3

wetaiicanaes aean BRIEF OF RESPONDENT IN OPPOSITION TO

Teal v. Georgia, 435 U.S. ____ (1978) THE PETITION FOR WRIT OF CERTIORARI

SS” Sle earn eae Serer 6

United States v. Wurzbach, 280 U.S. 396 (1930)...... 5 PART I

OPINION BELOW

STATUTES The decision sought to be reviewed by this court is

Georgia Laws 1975, p. 498, (Section 26-2101 of the reported at 144 Ge. App. 298 (261 5.E. 2d 19).

Criminal Code of Georgia)...................05. 2,4 QUESTIONS RAISED

1. Whether jury instructions on scienter that required

the State to prove beyond a reasonable doubt that the

accused had knowledge of the obscene nature of the

magazines sold by him, either actual or constructive, and

that a person has constructive knowledge of the obscene

4 content if he has knowledge of facts which would put a

reasonable and prudent person on notice as to the suspect

nature of the material, were sufficient to meet constitu-

tional minimum standards.

2

2. Whether the Motion Picture Films Dream Come

True and The Heist are obscene as a matter of law and

therefore not protected expression under the First and

Fourteenth Amendments to the Constitution of the

United States.

PART II

ARGUMENT AND CITATIONS OF AUTHORITY

A.

JURY INSTRUCTIONS ON SCIENTER THAT

REQUIRED THE STATE TO PROVE BEYOND A

REASONABLE DOUBT THAT THE ACCUSED HAD

KNOWLEDGE, EITHER ACTUAL OR CONSTRUC-

TIVE, 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, WERE SUFFICIENT TO MEET CON-

STITUTIONAL MINIMUM STANDARDS.

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 ‘knowing’, as

used herein, shall be deemed to be either actual or

constructive knowledge of the obscene contents of

the subject matter, and a person has constructive

knowledge of the obscene contents of he has knowledge of

facts which would put a reasonable and prudent person

on notice as to the suspect nature of the material . . .”

(Emphasis 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 de-

fendant himself did not regard the paper as one that

the statute forbade to be carried in the mails.”

im added) Rosen v. United States, 161 U.S. 29

1896).

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 circum-

stances 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 con-

stitutionally permissible prosecution of a bookseller

for carrying an obscene book in stock; whether

honest mistake 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 circum-

stances might be. . .” Smith v. California, 361 U.S.

147, 154 (1959).

4

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

compares to New York statutes dealt with by the court in

Mishkin 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

a calculated purveyance of filth which is exor-

c re

Section 26-2101 of the Georgia Code requires “‘knowl-

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 character

and content of the material.

Neither Mishkin nor Ginsberg requires actual knowl-

edge. Both cases were reviewed and followed in Hamling

v. United States, 418 U.S. 87 (1974), where the court con-

strued 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 18 U.S.C. §1461 nor by

the Constitution.”

5

In the caseof Kuhns v. California, __.__ U.S. ______., 97

S.Ct. 2938, this court denied petition for certiorari to

review jury instructions based upon the California ob-

scenity statute which defines “knowingly” as ‘‘(be) aware

of the character of the matter . . .” California v. Kuhns,

61 Cal. App. 3d 735, 1382 Cal. Rptr. 725, 737 (1976).

In the case of Nash v. United States, 229 U.S. 373 (1913),

the court said:

“Tn 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 enforcing

the criminal provisions of the Sherman Anti-Trust

Act on the ground of uncertainty as to the prohibi-

tions.

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 can come near it

without knowing that he does so, if he thinks, and if he

does so, it is familiar to the criminal law to make him take

the risk. Nash v. United States, supra; United States »v.

Wurzbach, 280 U.S. 396, 399 (1930). One who goes peril-

ously close to an area of proscribed conduct shall take the

risk that he may cross that line. Boyce Motor Lines, Inc.

v. United States, 342 U.S. 337, 340.

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.

6

New York, supra; “‘reason to know” was sufficient in Gins-

berg v. New York, supra; “be aware of the character of the

matter” was sufficient in Kuhns v. California, supra; eye-

witness testimony that the appellant perused the book

is not necessary, Smith v. California, supra; and proof of

knowledge of the legal status of the material is not re-

quired, Hamling v. United States, supra.

The precise scienter question raised by the Petitioner

herein has been presented to the court in four cases pre-

viously in Ballew v. Georgia, 435 U.S. _.... (1978)

(No. 76-761. Decided March 21, 1978); Robinson ».

Georgia, 435 U.S. _.____ (1978) (No. 77-915. Decided

April 24, 1978); Sewell v. Georgia, 435 U.S. ______ (1978)

(No. 76-1738. Decided April 24, 1978); and Teal v. Georgia,

435 “a —___.. (1978) (No. 77-790. Decided April 24,

1978).

Ballew, supra, was reversed on the Five-person jury

issue and remanded for further proceedings not incon-

sistent with the court’s opinion which did not reach the

scienter issue.

In Robinson, supra, the judgment was vacated and the

case was remanded to the Court of Appeals of Georgia for

further consideration in light of Ballew v. Georgia, and the

scienter issue was not dealt with by the majority.

In Sewell and Teal, the appeals were dismissed for want

of substantial federal question. Since no substantial

federal question was raised in Sewell and Teal, and since

the scienter issue raised in each of those cases were pre-

cisely the same as that presented by the Petitioner herein,

it follows that the scienter issue presented by him raises

no substantial federal question.

7

B.

TH& MATERIALS INVOLVED HERE ARE OB-

SCENE AND ENTITLED TO NO PROTECTION

UNDER THE FIRST AND FOURTEENTH AMEND-

MENTS TO THE CONSTITUTION.

In a review of the Motion Picture Films Dream Come

True and The Heist, the court will find not only nudity

ahd lewd exhibition of the genitals by both males and

females, but there are also explicit depictions of ultimate

sexual acts. Petitioner contends that these materials do

not constitute hard core pornography, and in support of

these contentions, appellant cites cases in which convic-

tions were reversed by this court. 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 deter-

mine what constitutes obscene, pornographic material

subject to regulations under the States’ police power,

and at which time convictions were reversed by the

court summarily.

“Apart from the initial formulation in the Roth case,

no majority of the Court has at any given time been

able to agree on a standard to determine what con-

stitutes obscene, pornographic material subject to

regulation under the States’ police power. See, e.g.,

Redrup v. New York, 386 U.S. at 770-771, 87 S.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.’ Interstate Cir-

cuit, Inc. v. Dallas, 390 U.S., at 704-705, 88 S.Ct. at

1314 (Harlan, J., concurring and dissenting).”’

TT a v. California, 413 U.S. 15, 22, 88 S.Ct. 2607,

8

“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,

applying their separate tests, found to be protected

by the First Amendment. Redrup v. New York, 386

U.S. 767, 87 S.Ct. 1414, 18 L.Ed. 2d 515 (1967).

Thirty-one cases have been decided in this manner.

Beyond the necessity of circumstances, however, 20

justification has ever been offered in support of the

Redrup ‘policy’. See Walker v. Ohio, 398 U.S. 434-435,

90 S.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 unreviewable

board of censorship for the 50 States, subjectively

judging each piece of material brought before us.”’

Miller v. California, 413 U.S. 15, 88 S.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 films in question here, for there the camera does

focus on the bodies of the participants.

The Respondent contends that the films are hard

core pornography and obscene material when judged by

the guide lines established in Miller v. California, supra,

and the Georgia Obscenity statute, Code Section 26-2101,

which is patterned after the Miller case.

ee nomen

9

CONCLUSION

For all the foregoing reasons, Respondent urges this

Court to decline to issue the Writ of Certiorari in this

case.

Respectfully submitted,

LEONARD W. RHODES

Assistant Solicitor General

State Court of Fulton County

Counsel for Respondent

53 State Court Building

160 Pryor Street, S.W.

Atlanta, Georgia 30303

(404) 572-2911

ee

NS

10

CERTIFICATE OF SERVICE

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

Supreme Court of the United States in good standing,

and that I have this day deposited in the United States

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

in Opposition to the Petition for Writ of Certiorari with

first class postage prepaid, addressed to Robert Eugene

Smith, Esquire, 1409 Peachtree Street, N.E., Atlanta,

Georgia 30309, Attorney for Petitioner.

This day of May, 1978.

LEONARD W. RHODES

Counsel for Respondent