Petition — Flynt v. Georgia
Supreme Court brief1980
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bupreme Court, U. > ¥
FILED
| | MAY 10 1980
In The RODAK, JR., CLERR
Supreme Court of the United States
October Term, 1979
6 le
No. 29-179]
LARRY C. FLYNT,
Petitioner,
vs.
THE STATE OF GEORGIA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS
FOR THE STATE OF GEORGIA
Herald Price Fahringer, Esq.
Paul J. Cambria, Jr., Esq.
Barbara Davies Eberl, Esq.
d Attorneys for Petitioner
One Niagara Square
Buffalo, New York 14202
(716) 849-1333
Robert A. Fierer, Esq.
Robert H. Citronberg, Esq.
141 Walton Street, N.W.
Atlanta, Georgia 30303
(404) 688-5500
Of Counsel
The Daily Record Spaulding Law Printing
(6003 ) Syracuse, New York
Rochester, New York
TABLE OF CONTENTS
pe PTET TUTTILT TCSP TLE TL
nT PETTRTETTLCTR TTC LL
pO EPET EER ETUCTTTET TCT
Constitutional Provisions and Statutes Involved ......
Questions Presented... .......cccccccccccccceces
a rrr es ee
Petitioner’s Proof of Community Standards........
Community Tolerance of Hustler and Chic ........
pi. RR | MPV CTTETTO CELI CTT TT ee
Reason for Granting the Writ
I — The First and Fourteenth Amendments bar Larry
Flynt’s obscenity conviction because the trial court
unconstitutionally excluded all relevant evidence of
community standards (e.g., surveys, expert testimony,
and similar magazines sold in the community) which
bears directly on the issue of obscenity.............
II — The magazines Hustler and Chic are con-
stitutionally protected under the First Amendment of
the United States Constitution...............006-
ee lk as peek os aaa een ae oe
Appendices
APPENDIX A — Opinion of the Court of Appeals of
Peer Te ee eee Te TTT ee TTT TT er ee
APPENDIX B — Denial of Writ of Certiorari by
Supreme Court of Georgia .........sccccccccces
APPENDIX C — Constitutional Provisions and
Eg an ols ab RaeeS he ee ee
il
oo > Se KW LO WH TO
11
15
TABLE OF AUTHORITIES
Cases: Page
Childress v. Municipal Court, 8 Cal. App.3d 611, 87
Cal. Rptr. 383, 385 (1970) «0.2... eee eee eee eee 12
Commonwealth v. LaLonde, 447 Pa. 364, 288 A.2d 782
ES Se ee ee 7
Hamling v. United States, 418 U.S. 87 (1974). ......-- 6
Hannegan v. Esquire, Inc., 327 U.S. 146 (1946). ...... 14
Huffman v. United States, 470 F.2d 386 (D.C. Cir.
eine ee ne eee ees se cvcoesecece 8
In re Harris, 56 Cal.2d 879, 366 P.2d 305, 15 Cal. Rptr.
cea e eek esaet dee eerccccesess 7
In re 7 Magazines, 268 A.2d 707 (R.I. 1970) .....---- 7
Jacobellis v. Ohio, 378 U.S. 184, 188 (1964)........--- 1]
Jenkins v. Georgia, 418 U.S. 153 (1974) ......---- 11, 12,13
Kaplan v. California, 413 U.S. 115 (1973) ......-++-- 6
McKinney v. Parsons, 513 F.2d 264, 268 (5th Cir.), cert.
denied, 423 U.S. 960 (1975) .. 6... eee eee eee eee 12
Miller v. California, 413 U.S. 15 (1973)... ..----++-- 7, 1l
Penthouse International Ltd. et al. v. McAuliffe, 610
F.2d 1353 (5th Cir. 1980), aff’'g 436 F. Supp. 1241
So eee ee 5
Roth v. United States, 354 U.S. 476, 497 (1957). ...... 8, 11
Smith v. California, 361 U.S. 147 (1959) ....- +--+ --- 6
State v. Carlson, 291 Minn. 368, 192 N.W.2d 421 (1971) 8
State v. Flynt and Hustler Magazine, Inc., No. C-77101
(Ct. App. Ohio April 4, 1979)... 6.6.20 ee eee eee 8
iti
State v. Onorato, 3 Conn. Cir. 438, 216 A.2d 859 (1965).
State ex rel. Leis v. William S. Barton Co., Inc., 45 Ohio
App.2d 249, 344 N.E.2d 342 (1975)... 2... ee eee
United States v. American Theatre Corp., 526 F.2d 48,
49 (8th Cir. 1975), cert. denied, 430 U.S. 938 (1977). .
United States v. Cutting, 538 F.2d 835 (9th Cir. 1976) . .
United States v. Groner, 494 F.2d 499 (5th Cir.), cert.
Gented -4I9 UB. BORIS Ce sak vh ae Veh eee cwses
United States v. Klaw, 350 F.2d 155, 170 (2d Cir. 1965).
United States v. Manarite, 448 F.2d 583 (2d Cir.), cert.
Reel GG Ges es CEE Fa Ka kab ce Kec cweensss
United States v. Marks, 520 F.2d 913, 923 (6th Cir.
1973). Pow S, GOT B. TRIG) ov vec vseaweccees
United States v. 392 Copies of a Magazine Entitled
“Exclusive’’, 253 F. Supp. 485 (D. Md. 1966), aff'd,
373 F.2d 633 (4th Cir. 1967) .......ceeeeccccees
United States v. West Coast News Co., 357 F.2d 885
(6th Cir. 1966), rev'd sub nom. on other grounds Aday
v. United States, 388 U.S. 447 (1967) .............
United States v. Womack, 509 F.2d 368, 376 (D.C. Cir.
DE nokbe bade eads soecataeaceuwscheekeeans
Womack v. United States, 294 F.2d 204 (D.C. Cir.),
cert. denied, 365 U.S. 859 (1961) ........... 020s
Woodruff v. State, 11 Md. App. 202, 273 A.2d 436
WI ii ssicace $b Rae ie yea en eek ace
Yudkin v. State, 229 Md. 223, 182 A.2d 798 (1962) ....
Page
12
iv
U.S. Constitution: Page
I ogc 8 ac EKO R SHR SS Oe ERS 6,11, 12,14
Ee I 9 6rd 0 ae OOS N Coe OOS 6
Statutes:
) ee ae) ne oe 2
Model Penal Code, §251.4........ccccccccccceces 7
Georgia Code Ann. §26-2101] ......... 0. eee eeeeeee 2
Georgia Code Ann. §38-102.. 2.2.6... ee eee eee eee 9
Georgia Code Ann. §38-Til.. 1.6... eee eee ee eee es 9
In The
Supreme Court of the United States
October Term, 1979
No.
LARRY C. FLYNT,
Petitioner,
vs.
THE STATE OF GEORGIA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS
FOR THE STATE OF GEORGIA
Petitioner, LARRY C. FLYNT, seeks a writ of certiorari to
review the judgment of the Georgia Court of Appeals entered on
January 15, 1980. Petitioner’s application to the Georgia _
Supreme Court for a writ of certiorari was denied on March 4,
1980.
Opinion Below
The opinion of the Court of Appeals, dated January 15, 1980,
is reported at 153 Ga. App. 232 (1980) and is printed in Ap-
pendix A. The Georgia Supreme Court’s notice of denial of
petitioner’s application for a writ of certiorari is printed in
Appendix B.
Jurisdiction
Larry Flynt was found guilty in the Fulton County (Georgia)
State Court of eleven counts of distributing obscene materials in
violation of Georgia Code Ann. §26-2101. On March 28, 1979
petitioner was sentenced to a term of imprisonment for a period
of twelve months on each of the eleven counts, to be served
consecutively, and fined $2,500 on each of the eleven counts.
The prison sentence was suspended upon condition that
petitioner pay the fine and that he refrain from the sale and
distribution of obscene materials in the State of Georgia.
On January 15, 1980 the Court of Appeals of Georgia af-
firmed the judgment of conviction (153 Ga. App. 232 [1980]).
On March 4, 1980 the Supreme Court of Georgia denied
petitioner’s application for a writ of certiorari.
This petition is seasonably filed within ninety days of the
Georgia Supreme Court’s denial of writ of certiorari. The
jurisdiction of this Court is invoked under 28 U.S.C. §1257(3).
Constitutional Provisions
and Statutes Involved
The constitutional provisions and statutes involved are
contained in our Appendix C.
Questions Presented
1. Can a trial court, in an obscenity prosecution, con-
stitutionally exclude all relevant evidence of community
standards (e.g., surveys, expert testimony, and similar
magazines sold in the community) which bears directly on the
issue of obscenity?
2. Are the magazines Hustler and Chic constitutionally
protected under the First Amendment of the United States
Constitution?
The Court has never considered these crucial constitutional
questions before.
Statement of Facts
Larry Flynt was convicted in Atlanta, Georgia of distributing
eight issues of Hustler Magazine; three issues of Chic; and one
issue of the Best of Hustler No. 2. These magazines enjoy a
nationwide distribution. In 1977 Hustler had a circulation of
over 2,000,000 magazines a month.
During 1978 an indictment was returned in Fulton County,
Georgia charging Larry Flynt with eleven counts of distributing
obscene literature. The prosecution’s entire case in chief con-
sisted of merely introducing into evidence the magazines. No
proof was produced, in the prosecution’s direct case, that
Hustler or Chic appealed to anyone’s prurient interest; exceeded
Fulton County’s contemporary community standards; or lacked
literary, artistic, political, or scientific value. The defense, on
ihe other hand, presented experts who testified that neither
Hustler nor Chic appealed to the average adult’s prurient in-
terest and did not lack serious literary value.
John Henry Faulk, whose life story was the subject of the
CBS television production ‘‘Fear on Trial” and who is presently
a member of the cast of the television program “Hee Haw’’,
testified that Hustler and Chic did not lack serious literary
value. Dr. Wardell Pomeroy, one of the country’s leading
psychologists and co-author of all three of the famous Kinsey
Reports, stated that Hustler and Chic would not appeal to the
average person’s morbid or shameful interest in sex but instead
would produce a natural response. Dr. Lawrence Brannon, a
practicing Atlanta psychiatrist, concurred in Dr. Pomeroy’s
opinion. Larry Flynt testified in his own behalf that a reader
study made of Hustler Magazine showed that the average
purchaser was between 18 and 34 years of age, a college
graduate, and married, with children. However, every attempt
to show that Hustler and Chic did not exceed the contemporary
community standards of Fulton County was summarily rejected
by the trial court.
Petitioner’s Proof of Community Standards
Dr. Charles Winick,* a sociology professor and psychologist
at the City University of New York, conducted an extensive
opinion poll of Atlanta’s adult population. He would have
testified, had he been permitted, that the results of this survey of
sexual attitudes in Atlanta showed, among other things, that
84% of the population felt adults should be allowed to read
magazines dealing with explicit sexual activities if they wished.
Seventy-six percent of the population believed that the com-
munity standards in Atlanta had changed in recent years to the
degree that depictions of nudity and sexual activity were
becoming much more publicly acceptable. Dr. Winick has
testified as an expert on community standards in obscenity
prosecutions in California, Ohio, Georgia, New York, and New
Jersey. This is the first case in which his testimony was rejected
by a trial judge.
Community Tolerance of Hustler and Chic
Hustler and Chic were distributed in Fulton County by
Atlanta News, one of the largest distributors of periodicals on
the eastern seaboard. It also distributes Playboy, Penthouse,
Oui, Club, Gallery, Genesis, High Society, and Swank, among
other publications. One of the chief executive officers of Atlanta
News was prepared to testify about the Fulton County
distribution figures of these representative publications sold
during the same period of time covered by Larry Flynt’s in-
*Dr. Charles Winick has written over 400 articles and is the author of ‘The
New People”; “Television Experience”; and ‘““The Lively Commerce.”’ He
has discussed his work on the Merv Griffin, Barbara Walters and Mike
Douglas shows. NBC, CBS and ABC have hired him as a consultant. He
has testified before a number of Senate Committees on a wide variety of
subjects. He conducted two major studies for the President's Commission
on Obscenity and Pornography — the only two that dealt with the con-
sumers of sexually oriented materials. In 1978 he conducted a much more
intensified study of the Times Square area in New York City under the
auspices of a Ford Foundation Grant.
dictment.* This evidence of community standards was received
in the federal suit, Penthouse International Ltd. et al. v.
McAuliffe, 610 F.2d 1353 (Sth Cir. 1980), aff'g 436 F.Supp.
1241 (N.D. Ga. 1977). The similarity between Hustler and
these other prominent publications was amply demonstrated by
a comparison of the articles, cartoons, and pictures appearing in
both sets of journals. For some unexplainable reason, the trial
court prohibited the jury from hearing this crucial evidence of
‘““comparables”’ sold in the Atlanta area.
The Atlanta Library
Attorney Eloise Newhard was not permitted to testify about a
survey she made of the sexual books in the Fulton County
Public Library. She would have testified about similar
publications, available through the library, and books she had
purchased at local bookstores and drug stores, all of which
materials were comparable to Hustler and Chic.
A former police officer, Durwood Myers, surveyed Fulton
County and found that magazines containing explicit sexual
material were widely sold and generally available in the com-
munity. He brought with him to court all the publications he
purchased at various convenience stores, delicatessens, book-
stores and newsstands which were marked with the date, time
and location of the purchase. He also prepared a list of all the
other stores in the county which sold the very same publications
he had purchased. The court disallowed Mr. Myers’ testimony.
In sum and substance, every effort to demonstrate the com-
munity standards of Fulton County was uniformly rejected by
the trial court.
*The statistics established that for the eight months from January 1977
through August 1977 these magazines, comparable to Hustler, enjoyed a
circulation on a monthly basis of — 28,528 issues of Penthouse; 20,767
issues of Hustler; 7,123 issues of Gallery; 6,223 issues of Oui; 5,450 issues of
High Society; and 1,770 issues of Genesis, making a total of 69,861 issues
monthly.
Reasons for Granting the Writ
I
The First and Fourteenth Amendments bar Larry Flynt’s
obscenity conviction because the trial court’ un-
constitutionally excluded all relevant evidence of com-
munity standards (e.g., surveys, expert testimony, and
similar magazines sold in the community) which bears
directly on the issue of obscenity.
The critical question presented by this petition is whether the
publisher of a national magazine can be convicted of
distributing obscene materials when the Georgia trial court has
barred all attempts to prove the local community standards.
The Georgia Court of Appeals’ affirmation of this wholesale
denial of due process is in direct defiance of a long line of cases,
extending over this Court’s history, holding that, in an ob-
scenity case, the defense must be free to introduce evidence
bearing on the community standards. See, e.g., Hamling v.
United States, 418 U.S. 87 (1974); Kaplan v. California, 413
U.S. 115 (1973); Smith v. California, 361 U.S. 147 (1959). The
complete exclusion of all evidence bearing on the issue of
community standards, by way of experts, surveys conducted in
the community, and comparable evidence, is constitutionally
intolerable.
There is no more probative proof in an obscenity case than
evidence of the community’s acceptance of the challenged
material. As the late Mr. Justice Harlan stressed:
“The community cannot, where liberty of speech and
press are at issue, condemn that which it generally
tolerates. This being so, it follows that due process —
‘using that term in its primary sense of an opportunity to
be heard and to defend [a] substantive right,’ .. .
requires a state to allow a litigant in some manner to
introduce proof on this score” (361 U.S. at 171, 172).
The late Mr. Justice Frankfurter emphasized, in incisive
language:
“(T]he right of one charged with obscenity — a right
implicit in the very nature of the legal concept of ob-
scenity — [is] to enlighten the judgment of the tribunal,
be it the jury or as in this case the judge, regarding the
prevailing literary and moral community standards and
to do so through qualified experts. It is immaterial
whether the basis of the exclusion of such testimony is
irrelevance, or incompetence of experts to testify to such
matters. The two reasons coalesce, for community
standards or the psychological or physiological con-
sequences of questioned literature can as a matter of fact
hardly be established except through experts. Therefore,
to exclude such expert testimony is in effect to exclude as
irrelevant evidence that goes to the very essence of the
defense and therefore . the constitutional safeguards of
due process”’ (361 U.S. at 164, 165).
Clearly, the Georgia courts have directly contravened the
national policy of permitting proof of the community standards
in an obscenity case.
Many other courts have followed this principle providing
objective guidelines to help the jury reach a rational decision
under the elusive obscenity formula announced in Miller v.
California, 413 U.S. 15 (1973).*
Evidence of community standards and comparable materials
accepted by the public are important in an obscenity case
because often what cannot be articulated can only be expressed
*See e.g., United States v. Klaw, 350 F.2d 155, 170 (2d Cir. 1965); United
States v. 392 Copies of a Magazine Entitled “Exclusive”, 253 F.Supp. 485
(D. Md. 1966), aff'd, 373 F.2d 633 (4th Cir. 1967); In re Harris, 56 Cal.2d
879, 366 P.2d 305, 15 Cal. Rptr. 889 (1961); Woodruff v. State, 11 Md.
App. 202, 273 A.2d 436 (1971); } udkin v. State, 229 Md. 223, 182 A.2d 798 -
(1962); Commonwealth v. LaLonde, 447 Pa. 364, 288 A.2d 782 (1972); In
re 7 Magazines, 268 A.2d 707 (R.I. 1970). The Model Penal Code, §251.4
also embraces this well fo-med rule.
by means of comparison. Obscenity, as Mr. Justice Harlan
stated so well, “‘is [not] a peculiar genus of ‘speech and press’,
. . as recognizable as poison ivy.”’ (Roth v. United States, 354
U.S. 476, 497 (1957) [concurring opinion]}).
It is the product of a relationship between society and the
material in question, and the issue more precisely is the level of
community tolerance than it is the level of the material’s in-
tolerability to a particular judge or jury. Since this critical
evidence was kept from the jury, Hustler and Chic were judged
in a vacuum. The rule welcoming the admission of comparable
publications sold in the community is designed to avoid the very
calamity that befell Larry Flynt in this case. Thus, it is im-
perative that this Court reinforce the rule providing for the
admissibility of comparable literature as a means of establishing
one aspect of community standards, where as here, the
predicate requirement for its introduction was fully met.
In Womack v. United States, 294 F.2d 204 (D.C. Cir.), cert.
denied, 365 U.S. 859 (1961), Judge Prettyman described the
necessary foundation as consisting of two elements: “‘[T]hat the
two types are similar ... and ... a reasonable degree of
community acceptance [of the materials is shown]” (294 F.2d at
206). Here that foundation was easily built. See also United
States v. Womack, 50Y F.2d 368, 376 (D.C. Cir. 1974); Huff-
man v. United States, 470 F.2d 386 (D.C. Cir. 1971); United
States v. Manarite, 448 F.2d 583 (2d Cir.), cert. denied, 404
U.S. 947 (1971); United States v. West Coast News Co., 357
F.2d 885 (6th Cir. 1966), rev'd sub nom. on other grounds Aday
v. United States, 388 U.S. 447 (1967); State v. Carlson, 291
Minn. 368, 192 N.W.2d 421 (1971); State ex rel. Leis v.
William S. Barton Co., Inc., 45 Ohio App.2d 249, 344 N.E.2d
342 (1975); State v. Flynt and Hustler Magazine, Inc., No. C-
77101 (Ct. App. Ohio, April 4, 1979).
The error committed by the Georgia Court of Appeals in
upholding the trial court’s refusal to permit Dr. Charles
Winick, Eloise Newhard, Durwood Myers, and Fay McCoy to
testify regarding contemporary community standards con-
stitutes a palpable denial of due process. The court’s conclusion
that petitioner did not lay an adequate foundation for all this
proof is unsupported by the record. Larry Flynt did everything
possible, considering the legal straitjacket within which the
judge had bound defense counsel, io compel introduction of
comparable magazines, survey evidence, or testimony as proof
of community standards. The proffer of sales figures, actual
comparable magazines, and testimony about the presence
throughout the entire community of sexually explicit materials
satisfied, to a degree rarely seen, the elements of community
acceptance, or toleration, not mere availability, of the
materials.
For example, in holding that the survey evidence was not
relevant, the Court of Appeals overlooked the clear direction of
Ga. Code Ann. §38-102 that where admissibility of evidence is
doubtful, it is to be admitted rather than excluded, and its
weight to be left to the jury. However, perhaps the most glaring
error occurred when the court affirmed the trial court’s
erroneous exclusion of the sales figures of the comparable
magazines distributed by Atlanta News. It ruled that the
financial officer’s testimony was inadmissible as not being the
“best evidence” since the computer records from which the
statistics were compiled were destroyed in the ordinary course of
business. Defense counsel nevertheless laid a proper foundation
by proffering that between 50 and 60 percent of the magazines
distributed in Fulton County were sold in Fulton County.* The
sales figures were further proved when the state caused the
reading into evidence of the findings of the civil suit brought by
Hustler Magazine against the Fulton County Solicitor General.
*Even if the records had not been destroyed, Ga. Code Ann. §38-711 would
have permitted McCoy’s testimony based on a memorandum made in the
regular course of business.
10
Finally, there was a basis for t' admission of comparable
materials by Durwood Myers’ testimony as to actual sales of
magazines which he viewed displayed in great numbers in a
variety of outlets. The logical inference from the testimonies of
both Mrs. Newhard and Mr. Myers was that sales of these
materials were being made. Since the question was one of
weight, not admissibility, their testimonies should have been
permitted to be heard by the jury.
In the face of the Georgia Court of Appeals implication that
defense counsel had not laid a proper foundation for the ad-
mission of comparable materials, we are forced to ask what
more could counsel have done? It seems curious that every
single effort to introduce evidence of contemporary community
standards was excluded. A reading of the record reveals that
defense counsel certainly did not fail to provide the foundation
for every admission of the various forms of comparable
materials, but in fact, that they established the evidentiary basis
in all cases. Nevertheless, the court upheld the unconstitutional
exclusion.
Thus, the jury, the sole trier of fact on the crucial issue of
contemporary community standards, was denied the right to
consider essential evidence on a constitutionally relevant issue.
In effect, the trial court licensed the jury to create its own
subjective standards for freedom of expression and to disregard
the community toleration which in fact exists toward the
depiction and representation of sex and nudity in the State of
Georgia.
This wholesale exclusion of relevant evidence was the trial
court’s most grievous error and severely hobbled the defense.
No other single error affected more dramatically the outcome of
this case. We venture to say that the Georgia decision will have
a far-reaching impact on obscenity trials throughout the United
States and should be reviewed by this Court. For all the
foregoing reasons and authorities, the petition for certiorari
should be granted.
11
Il
The magazines Hustler and Chic are constitutionally
protected under the First Amendment of the United States
Constitution.
Larry Flynt stands convicted by the Georg’a courts of
distributing magazines found to be obscene in the constitutional
sense. That determination is so patently at odds with the
controlling decisions of this Court and is so serious a threat to
the continuing vitality of those judgments as to call for im-
mediate corrective action. In affirming Larry Flynt’s con-
viction, the Georgia Court of Appeals has excluded from the
public’s consideration significant publications which the
community is entitled to read, if they so wish.
The Federal Constitution guarantees to everyone the free
circulation of literature and only exempts from its protection
that material which is hard-core pornography. Miller v.
California, supra; Roth v. United States, 354 U.S. 476 (1957).
Whether a publication is obscene or not raises issues not of
historical facts, but questions of constitutional law which must
be resolved by an appellate court. As Mr. Justice Brennan
wrote in Jacobellis v. Ohio, 378 U.S. 184, 188 (1964):
‘Since it is only ‘obscenity’ that is excluded from the
constitutional protection, the question whether a par-
ticular work is obscene necessarily implicates an issue of
constitutional law.”’
In Jenkins v. Georgia, 418 U.S. 153 (1974), this Court
reversed a jury’s verdict of obscenity, and in so doing stated:
“Even though questions of [legal obscenity] are
‘essentially questions of fact,’ it would be a serious
misreading of Miller [Miller v. California, supra] 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
12
courts to conduct an independent review of con-
stitutional claims when necessary,’ . . . 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 of-
fensive ‘hard core’ sexual conduct ...” (418 U.S. at
166).
Many courts have since acknowledged the appellate
obligation expressed in Jenkins, supra. United States v. Marks,
520 F.2d 913, 923 (6th Cir. 1975), rev'd, 430 U.S. 188 (1977);
McKinney v. Parsons, 513 F.2d 264, 268 (5th Cir.), cert.
denied, 423 U.S. 960 (1975); United States v. Groner, 494 F.2d
499 (5th Cir.), cert. denied, 419 U.S. 1010 (1974); United States
v. American Theatre Corp., 526 F.2d 48, 49 (8th Cir. 1975),
cert. denixil, 430 U.S. 938 (1977); Childress v. Municipal
Court, 8 Cal. App.3d 611, 87 Cal. Rptr. 383, 385 (1970); State
v. Onorato, 3 Conn. Cir. 438, 216 A.2d 859 (1965).
The posture of the issue now before this Court was
crystallized by the Ninth Circuit Court of Appeals in United
States v. Cutting, 538 F.2d 835 (9th Cir. 1976), where the court
stated:
“[I]f it appears that the verdict [that the material is
obscene under Miller, supra,| is not supported by
substantial evidence, a reviewing court has an obligation
to set the verdict aside. . .”’ (538 F.2d at 839).
A review of the evidence leads to the irresistible conclusion
that the verdict on the question of obscenity was anything but
supported by “substantial evidence.”” The evidence produced
was legally feeble even under this Court’s more general
definition of obscenity.
The basic guidelines forged by the Court in the now familiar
Miller decision require that before a publication can be stripped
of First Amendment protection, there must be substantial proof
of three basic elements. The first element is that the publication
as a whole appeals to the average person’s morbid or shameful
13
interest in sex; secondly, that the publication as a whole depicts
or describes sexual conduct in a manner which is not accepted or
tolerated by the community as a whole; and thirdly, that the
publication lacks serious literary, artistic, political or scientific
value.
The prosecution chose to produce no evidence during its case
in chief on the question of obscenity, and merely relied upon the
introduction of the particular magazines and _ corporate
documents into evidence. The defense, on the other hand,
produced several witnesses who were without peers in their
respective fields. It was only after this testimony that the state
called its experts: Fred Crawford, a sociologist; Dr. Jo Cooley,
a psychologist who appeared somewhat confused about the
meaning of prurient interest; and John Russell, an English
literature professor with a most esoteric and rather in-
comprehensible definition of literary value. The defense ex-
perts, however, to a man, forthrightly testified that under the
Miller definition, objectively applied, the subject publications
did not meet the three-pronged Miller standard.
The pictures, stories, personal classified ads or any other
phase of Hustler or Chic do not approach the badlands of hard-
core pornography and therefore the publications lie beyond the
clutches of Georgia’s obscenity statute and the Miller
proscription. It is imperative that the magazines be considered
‘‘as a whole.’’ Consequently, to legally censure Hustler and
Chic because less than ten percent of its content may be of-
fensive to some branch of society, is in direct defiance of this
Court’s test governing obscenity.
The Georgia courts have simply refused — without
justification or elaboration — to give effect to this Court’s ruling
respecting the constitutional right of Larry Flynt to distribute
literature, which may be said to be in poor taste, unrefined,
trashy or of little educational value, but not obscene in the
constitutional sense. See Hannegan v. Esquire, Inc., 327 U.S.
14
146 (1946). We had thought this Court’s ruling in Jenkins v.
Georgia, supra, was an adequate admonition to the State of
Georgia that convictions of this nature, in the First Amendment
area, will not be tolerated. However, apparently further in-
structions are needed.
While this Court cannot be expected to review every obscenity
conviction or to reassess every publication found by a state to be
obscene, the determination below reflects so egregious a
disrespect for this Court’s ruling as to justify review and
correction of that determination. Moreover, the ruling below
will undoubtedly spawn wide scale prosecutions throughout the
State of Georgia aimed at other national magazines which wil
ultimately be repressed. The decision below, in short, will be
taken by the Georgia prosecutors as a signal that this Court’s
prior decisions respecting the First Amendment protection
surrounding such magazines no longer need be respected or
followed.
The situation is thus one where the Georgia courts and
Georgia prosecutors need to be reminded that the constitutional
standards and protections of this area have not been relaxed or
repealed. Without such reminder from this Court, many in-
dividuals will lose their freedom to sell and distribute con-
stitutionally protected literature and will unjustly suffer the
stigma of a criminal record. What is more important, if the
decision below stands uncorrected, the American public’s
constitutional right to read what they choose will be impaired
and thus a large reservoir of reading material, which this Court
has held cannot be constitutionally suppressed, will be
jeopardized.
We must never lose our confidence in the American public’s
ability to reject noxious literature and to be able to sort out the
truth from the false in sex, religion, politics or any other field.
Sexually-oriented materials should be left to the regulating
forces of society. Gresham’s law has never prevailed in the
15
literary world — the bad does not drive out the good. More
importantly, the choice of what magazines the people of Atlanta
will read for their own amusement, education, or enlightenment
must be left to them and not to the state prosecutor. The right to
read what we choose must include every magazine, book or
newspaper, or in the long run it may include none. For all these
reasons, it is respectfully requested that the petition for a writ of
certiorari be granted to review the erroneous decision below.
Conclusion
For all these reasons, the Court should grant this petition for
certiorari.
May, 1979
Respectfully submitted,
Herald Price Fahringer, Esq.
Paul J. Cambria, Jr., Esq.
Barbara Davies Eberl, Esq.
Attorneys for Petitioner
One Niagara Square
Buffalo, New York 14202
(716) 849-1333
Robert A. Fierer, Esq.
Robert H. Citronberg, Esq.
141 Walton Street, N.W.
Atlanta, Georgia 30303
(404) 688-5500
Of Counsel
Appendices
A-1
APPENDIX A
OPINION OF THE COURT OF APPEALS OF GEORGIA
JAN 15 1980
SHULMAN, CARLEY, J., CONCURS.
DEEN, C.J., CONCURS SPECIALLY.
98746. FLYNT v. THE STATE C-203
CARLEY, Judge.
Appellant appeals from his conviction on eleven counts of
distributing obscene materials, eight issues of Hustler magazine
and three issues of a magazine entitled Chic.
1. Code Ann. §26-2101 prohibits the knowing distribution
of obscene materials. Material is obscene if: (1) to the average
person, applying contemporary community standards, taken as
a whole, it predominantly appeals to the prurient interest — a
shameful or morbid interest in nudity, sex or excretion; (2)
taken as a whole, it lacks serious literary, artistic, political or
scientific value; and (3) it depicts or describes in a patently
offensive way, specifically defined sexual conduct. Code Ann.
§26-2101(b). In the instant case, the state introduced the eleven
magazines into evidence and produced several expert witnesses
in rebuttal on the obscenity question. Appellant enumerates as
error the exclusion of certain evidence which, he contends, had
relevancy to the “contemporary community standards” of
Fulton County and whether the eleven magazines he was
charged with distributing were or were not violative of those
standards.
I. Public Opinion Survey
The trial judge excluded evidence of the results of a public
opinion survey. The results of properly conducted public
surveys have been admitted into evidence in other jurisdictions.
A-2
APPENDIX A
Opinion of the Court of Appeals of Georgia
See, e.g., Zippo Mfg. Co. v. Rogers Imports, Inc., 216 FSupp.
670 (S.D.N.Y. 1963). Assuming without deciding that the
results of such surveys are, as a general proposition, admissible
into evidence in Georgia as against a hearsay or other objection,
it is clear that to be admissible into evidence in the specific case
in which their introduction is sought, the survey results “must
relate to the questions being tried by the jury and bear upon
them either directly or indirectly.”’ Code Ann. §38-201. The
survey questions merely inquired as to general opinions con-
cerning the depiction of “nudity and sex,’’ defined as “exposure
of the genitals and sexual activity,” and whether adults should
have the opportunity to obtain such materials. The results of
this survey were not relevant to the issue in the instant case —
whether the eleven magazines were obscene within the definition
of Georgia law. The depiction of ‘‘nudity and sex’’ is not per se
obscene. See Jenkins v. Georgia, 418 U.S. 153, 161 (94 SC
2750, 41 LE2d 642) (1974). It is obscene only if the depiction
appeals to a shameful or morbid interest in nudity and sex and
coalesces with the other elements of Code Ann. §26-2101(b).
Whether or not 76 of a 100 persons would say that the change in
“standards” over recent years in the depiction of nudity and
sexual activities is ‘““more acceptable’ does not show that those
same persons would find that the eleven magazines in question
depicted sex and nudity in an “‘acceptable’’ manner. There was
no attempt in the survey itself to determine whether the
respondents were of the opinion that the contents of the eleven
magazines would or would not exceed the limits of permissible
candor in the depiction of ‘nudity and sex.”” One may be of the
opinion that adults have the right to obtain and view materials
depicting “‘nudity and sex’’ although they would themselves
regard the material as exceeding the bounds of “contemporary
community standards”’ and as patently offensive. The survey
A-3
APPENDIX A
Opinion of the Court of Appeals of Georgia
asked no more than whether the respondents objected to the
dissemination of materials depicting nudity and sex to willing
adults, not whether they regarded material such as that depicted
in appellant’s magazines as obscene in themselves. The survey
and expert testimony concerning it were properly excluded.
Commonwealth v. Trainor, 374 NE2d 1216 (Mass. 1978);
Commonwealth v. Mascolo, 386 NE2d 1311 (Mass. App.
1979).
II. Jury View
The trial court denied appellant’s request that the jury be
transported around the city of Atlanta in order to view various
locations where sexually explicit materials were available. A
jury view is a matter within the trial court’s discretion. Sutton v.
State, 237 Ga. 418 (228 SE2d 815) (1976). While the question of
a jury view in the context of an obscenity trial apparently has
not arisen in this state, other jurisdictions have held that a view
such as that proposed by appellant is irrelevant in assisting the
jury in reaching an understanding of the contemporary stand-
ards held by the average person in the community. See, e.g.,
Commonwealth v. Mascolo, 375 NE2d 17, 26 (Mass. App.
1978) (cert. denied 439 U.S. 899, SC , 98 LE2d 247).
The fact that sexually explicit material may be available in
certain areas of the city of Atlanta is no indication that the
average person, applying contemporary community standards,
would not consider the eleven magazines to be obscene. State v.
J-R Distributors, Inc., 512 P2d 1049, 1083 (Wash. 1973) (cert.
denied 418 U.S. 949, 94 SC 3217, 41 LE2d 1166). The request
for a jury view was not erroneously refused.
A-4
APPENDIX A
Opinion of the Court of Appeals of Georgia
III. Comparable Evidence
We now deal with the exclusion of what is termed “‘com-
parative” evidence — evidence with which appellant would
have the jury compare his magazines in determining their
obscenity or nonobscenity. ““There has been a considerable
amount of confusion in the courts as to the admissibility and
function of comparison evidence in obscenity cases. Some
jurisdictions have held it reversible error to reject such evidence,
while others exclude it rather summarily.’”’ U.S. v. Womack,
509 F2d 368, 374 (D.C. Cir. 1974) (cert. denied 422 U.S. 1022,
95 SC 2644, 45 LE2d 681). Thus we perceive the threshold
question to be whether “comparable” evidence is admissible in
this state in an obscenity case.
‘(T]he Fourteenth Amendment does not permit a conviction
. unless the work complained of is found substantially to
exceed the limits of candor set by contemporary community
standards. The community cannot, where liberty of speech and
press are at issue, condemn that which it generally tolerates.
This being so, it follows that due process — ‘using that term in
its primary sense of an opportunity to be heard and to defend [a]
. substantive right,’ [Cit.] — requires a State to allow a
litigant in some manner to introduce proof on this score. While a
State is not debarred from regarding the trier of fact as the
embodiment of community standards, competent to judge a
challenged work against those standards, it is not privileged to
rebuff all efforts to enlighten or persuade the trier.’’ (Emphasis
in the original.) Smith v. California, 361 U.S. 147, 171 (80 SC
215, 4 LE2d 205) (1959) (Opinion of Mr. Justice Harlan). The
landmark case standing for the proposition that the defendant
in an obscenity trial may introduce in his defense comparable
materials to those he is charged with distributing is Womack v.
A-5
APPENDIX A
Opinion of the Court of Appeals of Georgia
U.S., 294 F2d 204 (D.C. Cir. 1961). “The predicate for a
conclusion that a disputed piece of [material] is acceptable
under contemporary community standards, as shown by
proffered other matter already in unquestioned circulation,
must be that the two types of matter are similar. And as another
part of his foundation he must show a reasonable degree of
community acceptance of works like his own.”” Womack v.
U.S., 294 F2d at 206, supra.
We find the state’s argument that the issues of the ad-
missibility of comparable evidence in general and the Womack
test in specific have heretofore been considered and rejected in
Georgia to be unpersuasive. Montross v. State, 72 Ga. 261
(1884), and Gore v. State, 79 Ga. App. 696 (54 SE2d 669)
(1949), relied upon by the state, were decided prior to the
decisions of the United States Supreme Court in Roth v. U.S.,
354 U.S. 476 (77 SC 1304, 1 LE2d 1498) (1957), and Miller v.
California, 413 U.S. 15 (93 SC 2607, 37 LE2d 419) (1973). It
was initially the Roth decision and, subsequently, the Miller
decision which established ‘“‘contemporary community stan-
dards”’ as an element in the determination of obscenity. And it is
those standards which the defendant in an obscenity case seeks
to establish by the introduction of comparable evidence.
Womack v. U.S., 294 FSupp. 204, supra. The rationale behind
the admission of “comparative” evidence is to allow the
defendant in an obscenity case the opportunity to attempt to
persuade the trier of fact that the challenged material does not
exceed contemporary community standards, as represented by
the comparable material and against which the challenged
material is judged. The comparative material is tangible
evidence of contemporary community standards. U.S. v.
Womack, 509 F2d 368, supra. And Dumas v. State, 131 Ga.
A-6
APPENDIX A
Opinion of the Court of Appeals of Georgia
App. 79 (205 SE2d 119) (1974) held only that magazines and
publications were not erroneously excluded from evidence in the
trial of one charged with distributing obscene medallions. We
do not view Dumas as a rejection of the right of a defendant in
an obscenity case to introduce comparable evidence, as that
evidence is defined in Womack. Rather, it is clear that the
excluded evidence in Dumas — magazines — would not have
satisfied the Womack requirement that the proffered evidence
must be “similar” to the alleged obscene material —
medallions.
Nor are we persuaded by the state’s arguments that we
should, in the instant case, reject the right of a defendant in an
obscenity trial to introduce evidence which meets the Womack
requirements. Such evidence would not be irrelevant. It would
show ‘“‘community acceptance” of material “‘similar’”’ to that
distributed by the defendant and thus would have bearing on
the issue before the jury — whether the defendant knowingly
distributed obscene material. ‘‘Since the law through its func-
tionaries is ‘applying contemporary community standards’ in
determining what constitutes obscenity [Cit.], it surely must be
deemed rational, and therefore relevant to the issue of ob-
scenity, to allow light to be shed on what those ‘contemporary
community standards’ are. Their interpretation ought not to
depend solely on the necessarily limited, hit-or-miss, subjective
view of what they are believed to be by the individual juror or
judge. It bears repetition that the determination of obscenity is
for juror or judge not on the basis of his personal upbringing or
restricted reflection or particular experience of life, but on the
basis of ‘contemporary community standards.’’’ Smith v.
California, 361 U.S. at 165, supra. (Opinion of Mr. Justice
Frankfurter.)
A-7
APPENDIX A
Opinion of the Court of Appeals of Georgia
We also find without merit the state’s contention that the
right to introduce comparable evidence, as defined in Womack,
should be rejected for reasons of “trial economy.” While expert
testimony a: ‘o the nonobscenity of the challenged material may
be before the jury, tangible evidence, in the form of similar
material accepted in the community, should not be denied the
defendant or the jury in an obscenity case on the grounds that it
is cumulative. If the trial judge is given discretion in the amount
of comparable evidence that will be admitted, and we believe he
should be given such discretion, there is no reason why the trial
should become unmanageably complex and lengthy. U.S. v.
Womack, 509 F2d at 378, supra.
Since it is “‘the right of one charged with obscenity — a right
implicit in the very nature of the legal concept of obscenity — to
enlighten the judgment of the tribunal, be it the jury or . . . the
judge, regarding the prevailing literary and moral community
standards,” Smith v. California, 36] U.S. at 164, supra,
(Opinion of Mr. Justice Frankfurter), we are persuaded that
evidence which satisfies the Womack test is relevant, probative
evidence which should be admitted in an obscenity trial for the
consideration of the trier of fact. We hereby adopt this test in
Georgia. “‘[The Womack test] merely requires an adequate
foundation to be laid for the introduction of comparison
evidence. Since the issue at hand is the nature of contemporary
community standards with respect to ‘works like his own,’ in
order for there to be a rational basis for its admission there must
be a showing that the proffered evidence (1) is similar to his
own, and (2) enjoys a reasonable degree of community ac-
ceptance. The burden is on the defendant and in the absence of
such a showing, the evidence must be excluded as lacking
sufficient probative value.’’ U.S. v. Womack, 509 F2d at 377,
supra.
A-8
APPENDIX A
Opinion of the Court of Appeals of Georgia
(a) Magazines and Books Purchased by Witnesses. ‘Turning
now to the evidence excluded in the instant case, we must decide
whether the Womack test for admissibility was satisfied and
whether the evidence was thus erroneously excluded. The first
exclusion of so-called comparable evidence occurred when
appellant called as his witness a private investigator who had
conducted his own personal survey of sexually explicit
materials. His testimony concerning the results of this survey,
through which he sought to show community standards, was
excluded, as were various magazines he had purchased in the
course of his investigation. Exclusion of this witness’ testimony
and the magazines was not erroneous. Even assuming without
deciding that the excluded material was “similar” to that ap-
pellant was charged with distributing, there was no evidence as
to the community ‘“‘acceptance” of the material. The only
testimony was that the witness had purchased the magazines at
stated times and places and had personally observed some sales
to others. “Evidence of mere availability of similar materials is
not by itself sufficiently probative of community standards to be
admissible in the absence of proof that the material enjoys a
reasonable degree of community acceptance ... Mere
availability of similar material by itself means nothing more
than that other persons are engaged in similar activities."” U.S.
v. Manarite, 448 F2d 583, 593 (2d Cir. 1971) (cert. denied 404
U.S. 947, 92 SC 281, 30 LE2d 264). Likewise, the exclusion of
several books and magazines purchased by another witness in
local bookstores and drugstores was not erroneous. Here too the
proffer of evidence was to their ‘mere availability” rather than
to ‘“‘a reasonable degree of community acceptance’’ of the
materials.
A-9
APPENDIX A
Opinion of the Court of Appeals of Georgia
(b) Library Materials. Photocopies of excerpted parts of
sexually explicit books available in the local library were ex-
cluded from evidence. Though we are not prepared to so hold,
even assuming that materials, because they are located in the
local library, are, for that reason alone, ‘“‘reasonably accepted
by the community,” and that photocopies rather than originals
would otherwise be admissible under our “best evidence”’ rule,
Code Ann. §38-203, we do determine that photocopies of parts
of books available at the local library would not satisfy the
“similarity’’ foundation required under Womack. In deter-
mining the obscenity or nonobscenity of appellant’s magazines
they must be “taken as a whole” and, therefore, comparative
evidence must also be proffered ‘“‘as a whole’’ to satisfy the
defendant’s burden under Womack of demonstrating that the
comparable evidence is “‘similar’’ to his challenged material.
U.S. v. West Coast News Co., 228 FSupp. 171, 200 (W.D.
Mich. 1964) (rev’d sub nom. on other grounds Aday v. U.S.,
388 U.S. 447, 87 SC 2095, 18 LE2d 1309).
(c) Movie Advertisements. Testimony regarding a witness’
record of the titles of adult movies advertised in the local news-
papers was properly excluded. First, we fail to see how mere
advertisements for films are “‘similar”’ to magazines. Cf. Dumas
v. State, 131 Ga. App. 79, supra. Secondly, advertisements
would show only that these films were merely “‘available,”’ not
necessarily “accepted,” in the community. Finally, our
adoption of the Womack test does not eliminate the otherwise
valid, rational rules governing the admissibility of evidence and,
therefore, even assuming a record kept by the witness of the
titles of adult movies would satisfy the Womack test for
relevancy and probaty, such a record would not be the “‘best
evidence” of the advertisements themselves. Schley v.
Rutherford, 6 Ga. 530 (6) (1849); Barrett v. Butler, 54 Ga. 581
(1875).
A-10
APPENDIX A
Opinion of the Court of Appeals of Georgia
(d) Magazines Distributed by Atlanta News Agency. Also
excluded from evidence were several magazines distributed by
the Atlanta News Agency, Inc. The witness whose testimony
was the vehicle by which appellant attempted to lay the
Womack foundation for the proffer of this evidence was the
chief financial officer of the corporate-distributor. While the
witness was unable to testify from personal knowledge as to the
contents of the “comparable” magazines and thus was unable to
testify as to their similarity to the eleven magazines in issue,
appellant’s attorneys had marked each issue with references
which showed such similarity. We have reviewed the “‘com-
parable” magazines and find that they bear a ‘reasonable
resemblance” to appellant’s so as to satisfy the Womack
“similarity” foundation. See U.S. v. Pinkus, 579 F2d 1174 (9th
Cir. 1978). This witness further testified as to distribution
figures for the allegedly comparable magazines to some 324
retail outlets in Fulton County. We view distribution figures —
the number of magazines available at newsstands and other
outlets — as insufficient evidence of community acceptance to
satisfy this element of the Womack foundation. ‘“The defendant
in an obscenity prosecution, . . . , is entitled to an opportunity
to adduce relevant, competent evidence bearing on the issues to
be tried. But the availability of similar materials on the news-
stands of the community does not automatically make them
admissible as tending to prove the nonobscenity of the materials
which the defendant is charged with circulating . . . [T]he mere
fact that materials similar to the [material] at issue here ‘are for
sale and purchased at bookstores around the country does not
make them witnesses of virtue.’ [Cit.] . . . ‘Mere availability of
similar material by itself means nothing more than that other
persons are engaged in similar activities.’ [Cit.]’’ Hamling v.
U.S., 418 U.S. 87, 126 (94 SC 2887, 41 LE2d 590) (1974).
A-11
APPENDIX A
Opinion of the Court of Appeals of Georgia
Appellant contends that sales figures, as opposed to mere
distribution figures, were proffered and that such evidence of
sales meets the Womack “community acceptance”’ requirement.
We agree that sales figures may be used to satisfy the Womack
‘community acceptance” foundational requirement though “‘a
determination of the precise point at which a publication is so
widely sold and is so generally available in the community as to
warrant a finding of community acceptance is difficult to fix
with assurance.” U.S. v. Womack 509 F2d at 379, supra.
However, we need not decide whether sales figures for the
magazines in the instant case were sufficient to satisfy this
requirement because the record does not support appellant’s
argument that such figures were ‘‘offered.’’ When the witness
was asked if the distribution figures to which he had testified
took into account magazines which were returned to the
distributor by the retailers as unsold, he responded that the
figures were for distribution and did not reflect any return by
the retailers of unsold magazines. When the witness was asked
what percentage of the distribution figures represented sales, an
objection was made. The witness then responded that there were
no detailed sales records as such, that sales figures would have
to be ‘‘compiled”’ from the “raw material” that was available at
the corporate-distributor’s headquarters. The witness was
prepared to testify as to his ‘‘prior knowledge’”’ of sales figures
from “compiling and looking’’ at the distributor’s computer-
controlled records. The trial court then indicated that ‘‘the
records will constitute the highest and best evidence. If he has
those records, I will allow him to testify from them.”
Thereupon, appellant’s counsel stated: “‘[W]e are going to ask
[the witness] to go back and get his records and we will put him
on at another time.’’ It is thus apparent that the trial court
excluded the witness’ testimony as to sales figures because it was
A-12
APPENDIX A
Opinion of the Court of Appeals of Georgia
not the ‘best evidence’ and that appellant acquiesced in this
ruling. Although appellant’s counsel — after agreeing to have
the witness return with the records — continued to try to
convince the trial court to allow the witness to testify from his
‘prior knowledge”’ of the records, the judge refused, properly
we believe, at that point to allow the witness to testify as to the
compilation of the records. Cf. Blackshear Mfg. Co. v. Harrell,
191 Ga. 433, 436 (6) (12 SE2d 328) (1940).
Appellant’s counsel did not, however, follow the procedure he
himself had suggested. Counsel attempted to make a proffer of
the witness’ testimony, by stating later that afternoon: “‘If [the
witness] would have been permitted to testify, he would have
testified as follows: that based upon the distribution figures that
he testified to here this morning it would be his judgment and
recollection that between fifty and sixty percent of the
magazines distributed in Fulton County were sold in Fulton
County. That his recollection in that regard would be based
upon the information that he actually reviewed when he
compiled the distribution figures which he read here this
morning and we marked as exhibits. And he would further
testify — and this was the important point I was trying to raise
this morning — that there are in fact no existing records which
demonstrate the actual sales of these magazines in Fulton
County. Those sales records were destroyed in the ordinary
course of business of Atlanta News Agency, and that therefore
there is no best evidence, that being the records; that he was the
best evidence of the information that existed at this particular
time.” After this “proffer” the trial court continued to refuse to
allow the magazines into evidence.
A-13
APPENDIX A
Opinion of the Court of Appeals of Georgia
We do not view this proffer by appellant’s counsel as a
procedurally sufficient ‘‘offer’’ of evidence of sales figures so as
to satisfy the “community acceptance” foundation of the
Womack test for admissibility. When the testimony of the
witness was originally offered as to sales figures, it was refused
as not being the “best evidence” and this ruling was acquiesced
in by appellant’s counsel. Although it was agreed that the
witness would be recalled, no such recall was ever made and
there was no explanation given as to why this was not done.
Thus the testimony of the witness himself was never tendered as
the “best evidence” of sales figures. Holley v. Lawrence, 194
Ga. 529, 532 (22 SE2d 154) (1942); Stanley v. Stanley, 138 Ga.
App. 560 (226 SE2d 800) (1976). No pertinent question as to
sales figures was ever propounded to the witness after a showing
that his testimony would be the “best evidence” thereof.
Thompson v. Hill, 143 Ga. App. 272 (238 SE2d 270) (1977);
Williams v. Tribble, 140 Ga. App. 390 (231 SE2d 105) (1976);
Seaboard Air Line R. v. Vaughn, 19 Ga. App. 397, 398 (2) (91
SE2d 516) (1916). The only “offer”’ of this witness’ testimony as
the “best evidence”’ of sales figures was the unsworn statement
of appellant’s counsel, made when the witness was not on the
stand. We consider this as insufficient offer of this witness’
testimony. See 88 CJS, Trials, §§79, 81, pp. 183, 186. Rather,
on these facts, it appears that the testimony of the witness was
excluded as not the “best evidence,” appellant agreed to have
the witness return with that evidence, and, instead of recalling
the witness to the stand to explain why his “knowledge” of sales
figures was the “best evidence” and to tender his testimony,
counsel attempted to do so. Since the witness himself did not
testify that the records had been destroyed, he was not made
available for cross-examination as to when, where, why or hov.
A-14
APPENDIX A
Opinion of the Court of Appeals of Georgia
the destruction had taken place. Therefore, there was no proper
“offer” of evidence as to sales of the “comparable’’ materials
and no error in excluding them from evidence. Watts v. Six
Flags Over Ga., 140 Ga. App. 106, 108 (4) (230 SE2d 34)
(1976).
Appellant further contends that sales figures for the com-
parable magazines were introduced into evidence when the
order of a federal judge was read into evidence by the state. The
record apparently does not contain a copy of this order which
was read into evidence. The transcript is hopelessly unclear as
to whether the “‘figures”’ contained in the federal judge's order
represented net sales figures of the magazines in Fulton County
or are merely distribution figures representing the number of
magazines “‘sold”’ by the distributor to retailers and thus reflect
mere availability. Furthermore, “(T]he judgment in a civil
action is not admissible in a criminal action to prove any fact
determined in the civil action.” Agnor’s Georgia Evidence.
Hearsay, §11-46, p. 266 (1976); Green, The Georgia Law of
Evidence, §318, p. 630 (1957). Pretermitting any other
deficiency in this “evidence” to satisfy the Womack “ac-
ceptance” foundational requirement, the order of the federal
judge as to these “figures” was hearsay and without probative
value. Cf. Goldberg v. State, 150 Ga. 59 (103 SE 90) (1920).
It is thus clear that insofar as the Womack foundation for the
introduction of the comparable magazines distributed by the
Atlanta News Agency is concerned, the sole competent and
probative testimony was that a certain specified number of such
issues of the magazines were distributed to 324 retail outlets in
Fulton County and were thus “available” to be purchased. This
is insufficient evidence of ‘“‘a reasonable degree’ of the
magazines’ acceptance in the community to satisfy the Womack
test. See Hamling v. U.S., 418 U.S. 87, 127, supra. The
A-15
APPENDIX A
Opinion of the Court of Appeals of Georgia
magazines were, therefore, properly “excluded as lacking
sufficient probative value.’’ U.S. v. Womack, 509 F2d at 377,
supra.
2. Appellant urges that several remarks by the district
attorney during his closing argument were improper. Having
carefully reviewed each of these statements, we conclude that
the remarks were not improper for any of the reasons urged.
“A district attorney ‘may argue to the jury the necessity for
enforcement of the law and may impress on the jury, with
considerable latitude in imagery and illustration, its respon-
sibility in this regard.’ [Cit.]. The statements made here appear
innocuous in comparison with remarks held to be within per-
missible bounds in cases such as Patterson v. State, 124 Ga.
408, 409 (52 SE 534) [1905], Brand v. Wofford, 230 Ga. 750,
754 (9) (199 SE2d 231) [1973], and Jackson v. State, 219 Ga.
819, 821 (136 SE2d 375) [1964]. ‘Flights of oratory and false
logic do not call for mistrials or rebuke. It is the introduction of
facts not in evidence that requires the application of such
remedies.’ [Cit.] “It is not objectionable for counsel to embellish
the argument with figurative speech, provided prejudicial facts
extrinsic of the record are not introduced.’ [Cits.] The
statements here did not involve matters extraneous to the
evidence presented. Accordingly, we find no error.”’ Bryan v.
State, 137 Ga. App. 169, 174 (223 SE2d 219) (1976).
3. Appellant enumerates as error the state’s recall of a
witness after the close of the evidence and the trial court’s
reopening of the case to allow her to testify. This witness, an
expert first called by the state in rebuttal, had originally
testified, to the apparent surprise of the state, that in her
opinion the eleven magazines in issue did not, “generally
speaking,’ appeal predominantly to the prurient interest of the
A-16
APPENDIX A
Opinion of the Court of Appeals of Georgia
average adult in Fulton County. After the close of evidence, this
witness informed the district attorney that she had misun-
derstood the question and that her answer did not represent her
true feelings. Based upon this, the trial court reopened the case
and allowed the witness to be recalled. On recall, the witness
testified that the reaction of the average adult in Fulton County
upon examining the eleven magazines would be “‘a sense of lust
. .a shameful, unwholesome sense.”
In analyzing whether this procedure was erroneous, we must
begin with the general proposition that the trial judge is clothed
with a very broad discretion in the matter of allowing additional
evidence at any stage of a trial, and his decision in this regard
will not be interfered with except where it appears there has
been an abuse of this discretion. Johnson v. State, 164 Ga. 47
(137 SE 553) (1927); Goldberg v. State, 22 Ga. App. 122 (95 SE
341) (1918). This discretion extends to allowing the state to
reopen the case and recall a witness for the purpose of am-
plifying testimony previously given. Sims v. State, 195 Ga. 485,
490 (6) (25 SE2d 1) (1943). This discretion also extends to
allowing a witness to be recalled, after the close of evidence, to
correct his former testimony, which he contends was mistaken.
Walker v. Walker, 14 Ga. 242 (7), 251 (1853). There being no
abuse of discretion by the trial judge in the instant case, there
was no error.
4. Appellant contests the sufficiency of the evidence,
contending that the eleven magazines are not obscene as a
matter of law. In accordance with Dyke v. State, 232 Ga. 817,
821 (209 SE2d 166) (1974), we have made an independent
appellate review of the material to decide the constitutional fact
of obscenity. The magazines come within the definition of Code
Ann. §26-2101. Dobbs v. State, 145 Ga. App. 14 (243 SE2d
275) (1978).
A-17
APPENDIX A
Opinion of the Court of Appeals of Georgia
5. Appellant attacks the sufficiency of the evidence to show
that he distributed obscene material in Fulton County. Ap-
pellant stipulated that he was the editor and publisher of the
eleven magazines, that he was aware of and responsible for the
contents and materials contained therein, and that all eleven
magazines had been sold in Fulton County, three of them by
appellant personally. This supports the finding that appellant
“distributed” or at least “aided and abetted”’ in the distribution
of the eleven magazines. Dyke v. State, 232 Ga. 817, 822,
supra; Allen v. State, 144 Ga. App. 233, 234 (3) (240 SE2d 754)
(1977). There was no error.
6. At the conclusion of the court’s charge, the jury left to
begin their deliberations. Almost immediately the bailiff
returned and announced that the jury wanted the “big chart.”
This was an apparent reference to a chart which contained the
werding of the Georgia obscenity statute, Code Ann. §26-2101.
The trial court informed the bailiff to “Tell them it is not
evidence and they are not entitled to see it.’’ Appellant urges
that this was error — that the request of the jury indicated they
were confused and in doubt as to the law and that the trial court
should have recharged them on the obscenity statute.
This argument is meritless. ‘‘When the jury requests the court
to recharge them on any point, it is the court’s duty to do so.
[Cits.]’’ (Emphasis supplied.) Edwards v. State, 233 Ga. 625 (2)
(212 SE2d 802) (1975). Clearly the jury’s request for the “big
chart,’ without more, does not indicate that they were confused
or in doubt as to the law of obscenity or that they wished to be
reinstructed on that point. If they were confused and wished to
be reinstructed, they would, no doubt, have so requested after
being informed that the “big chart”’ was not available to them
during their deliberation. They made no such request. Compare
A-18
APPENDIX A
Opinion of the Court of Appeals of Georgia
Freeman v. State, 142 Ga. App. 293, 294 (4) (235 SE2d 560)
(1977); Carter v. State, 142 Ga. App. 351, 352 (5) (235 SE2d
750) (1977). There was no error.
7. Appellant enumerates as error the denial of his motion to
quash and dismiss the indictment on the ground that Code Ann.
§26-2101 ‘tas drawn, construed, and applied, is repugnant to
the First and Fourteenth Amendments to the United States
Constitution.”’ It is urged that Code Ann. §26-2101(e) violates
the Equal Protection Clause in that it provides an affirmative
defense to a charge of distributing obscene materials if they were
disseminated to one associated with an institution of higher
learning teaching or studying such materials or to one whose
receipt of such materials was authorized in writing by a licensed
medical practitioner or psychiatrist. The argument is that this
classification, which would provide a defense to some
distributors of obscene materials but not to others, such as
appellant, charged with violating Code Ann. §26-2101, does not
further an appropriate state interest and is, therefore, un-
constitutional as violative of the Equal Protection Clause. See,
e.g., San Antonio Independent School District v. Rodriguez,
411 U.S. 1 (36 LE2d 16, 93 SC 1278) (1973).
This argument is without merit. States have a legitimate
interest in controlling the commercial distribution and ex-
ploitation of obscenity. Stanley v. Georgia, 394 U.S. 557 (22
LE2d 542, 89 SC 1243) (1969); Miller v. California, 413 U.S.
15, supra; Paris Adult Theater I v. Slaton, 413 U.S. 49 (93 SC
2628, 37 LE2d 446) (1973). Code Ann. §26-2101(e), which
would provide a defense to a charge of distributing obscene
material by persons who did so in a non-commercial manner,
i.e., for education or medical reasons, is clearly within the ambit
4 .-19
APPENDIX A
Opinion of the Court of Appeals of Georgia
of the state’s constitutional power to control the commercial
dissemination of such material. Therefore, the fact that ap-
pellant, the publisher and editor of the eleven magazines at
issue, is afforded no defense under the statute for his com-
mercial distribution of the material, would not invalidate the
state framework for controlling obscenity. Under present
authorities, we conclude that Code Ann. §26-2101 is immune
from appellant’s constitutional challenge. Pierce v. State, 239
Ga. 844 (239 SE2d 28) (1977).
Judgment affirmed. Shulman, J., concurs. Deen, C.J.,
concurs specially.
FLYNT v. THE STATE
28746 26-203
DEEN, Chief Judge, concurring specially.
While I concur and agree with all that is said in Divisions 2,
3, 4, 5, 6, 7 and Sections I and II of Division 1 of the majority
opinion, exception must be taken as to some of the conclusions
contained in Section III of Division 1. Additionally, I wouid
like to comment on the holding in Division 4. |
I.
COMPARABLE EVIDENCE
The majority opinion in subsections (a), (b), (c) and (d) of
Section III, of Division 1, concludes that the proffered evidence
as to similarity and acceptance of alleged comparable evidence
in determining contemporary community standards was in-
sufficient. Thus we do not reach the question relating to the
wisdom of adoption in Georgia for the first time of what is
referred to as “the Womack Test.” Further let me add:
A-20
APPENDIX A
Opinion of the Court of Appeals of Georgia
(a) Personal polls or sexual surveys, if approved by the
courts, may lead to perplex the jurors as do political polls
confound and confuse the voters. In any event, judicial economy
might dictate reasonable limitation in this area or else cases
involving alleged sexual obscene materials may become
inundated and saturated with conflicting sexual surveys.
(b) Permitting complete copies of the many sexually explicit
books, “depictions or descriptions of intercourse, masturbation.
bestiality, lesbianism and homosexuality,” which are located in
the local library, varied sex education materials and textbooks
used in elementary, high schools and universities submitted for
required scrutiny to the trial judge so that the “taken as a
whole” test considering “similarity” in determining ad-
missibility could result in unmanageably complex and lengthy
proceedings. “Trial economy’? must be given serious con-
sideration before adoption of the Womack Test. As an exam ple,
one of the most popular and widely used books by educators
within curriculum guides throughout the state and nation. in
elementary and high schools, is Values Clarification, a hand-
book of practical strategies for teachers and students written by
Sidney Simon, Leland W. Howe and Howard Kirschenbaum.
1978, Hart Publishing Co., Inc., New York. This teaching
methodology includes 79 strategies used on students. Among the
many games of situation ethics of permissiveness include
epitaph, obituary, death, suggestions to students to make
decisions of fictional homicide and murder, suicide, abortion,
euthanasia, sodomy and drugs, and student sexual survey and
personal polls such as: “To whom would you tell... 3. You
have had premarital sexual relations ... 11. You have
considered suicide ... 13. You smoke marijuana
A-21
APPENDIX A
Opinion of the Court of Appeals of Georgia
23. Your method of birth control,”’ pp. 186-187. “35. How
do you feel about premarital sex? Virginal or wild-oats.”’
P. 123. Forced-choice ladder questions such as identifying the
student’s sexual position. “4. Sex — a person who satisfies
his/her sex needs without marriage.’’ P. 110. Teachers are
urged on page 22 to write for additional materials at: National
Humanistic Education Center, 110 Spring Street, Saratoga
Springs, New York 12866. What would trial judges do when
confronted with materials and books of this type as meeting the
test of “similarity”? What if they are confronted with
arguments that these books meet the test of “acceptability”
since they are used in the public schools of America as
techniques in teacher training, curriculum development, and
are a part of the curriculum? Flooding the courts with this type
of possible comparable evidence would require considerable
time of the trial judge deciding questions of admissibility.
(c) Assuming arguendo that “the Womack Test”’ is adopted
would require substantial time of the court in reading and
reviewing newspaper advertisements relating to alleged obscene
movies. Even if this type evidence is deemed to meet the
‘“similar’’ test this does not necessarily point to acceptability in
the community. It may only reflect the community standards of
the editor of the newspaper and possibly a minority view of the
ethics and standards within the community of those who-enjoy
pornography.
(d) The majority opinion has stated: ‘‘We have reviewed the
‘comparable’ magazines and find that they bear a ‘reasonable
resemblance’ to appellant’s so as to satisfy the Womack
‘similarity foundation.’ ’’ The trial judge has a wide discretion
in determining similarity even if the Womack Test were
adopted. “In this connection it is important to realize that
A-22
APPENDIX A
Opinion of the Court of Appeals of Georgia
‘slight’ variations in format may well produce vastly different
consequences in obscenity determinations.’’ United States v.
Womack, (U.S.C.A., D.C., 1974), 509 F2d 368-378. ‘One of
the most often attempted and most rarely successful methods of
presenting evidence of contemporary community standards is
the use of materials comparable to those on trial.’’ Schauer, The
Law of Obscenity (Washington, D.C.: Bureau of National
Affairs, 1976), p. 133. Appellee’s arguments in this area have
considerable merit:
“Secondly, even if this Court refuses to require testimony of
similarity a mere cursory examination of the comparables
proffered by appellant and the magazines which were found
obscene by the instant jury reveals their dissimilarity. Some of
the comparables are more explicit — featuring more sex acts —
than Hustler and Chic, whereas others are less explicit in terms
of sex acts (e.g. Penthouse and Oui (TR-770)). Even appellant
admits that some of the comparables depict more explicit sex
acts than the Hustlers or Chics involved in this case. (Appt. Br.-
20; TR-773, 802). But, in a manner unlike any of the proffered
comparables, Hustler and Chic combine:
(1) implicit and explicit acts of normal heterosexual in-
tercourse (e.g. Best of Hustler #2 (State’s Exhibit 1 (TR-377)),
pp. 50, 51);
(2) scatology (e.g. Best of Hustler #2, p. 127; Hustler, July
1977 (State’s Exhibit 3 (TR-377)), p. 15, 45; Hustler, August
1977 (State’s Exhibit 4 (TR-377), pp. 64, 79, 110; Hustler,
October 1977 (State’s Exhibit 6 (TR-377)), p. 87; Chic, October
1977 (State’s Exhibit 7 (TR-377)), p. 43; Hustler, December
1977 (State’s Exhibit 9 (TR-377)), pp. 13, 30, 103; Hustler,
January 1978 (State’s Exhibit 10 (TR-377)), pp. 22, 107);
A-23
APPENDIX A
Opinion of the Court of Appeals of Georgia
(3) bestiality (e.g. Best of Hustler #2, pp. 4 (woman and dog),
103 (woman and elephant); Hustler, June 1977 (State’s Exhibit
2 (TR-377)), pp. 18 (woman and cat), 22 (man and dead shark);
Hustler, September 1977 (State’s Exhibit 5 (TR-377)), pp. 32
(woman and gorilla), 73);
(4) morbidity and violence (e.g. Best of Hustler #2, p. 86
(cutting off penises); Hustler, June 1977, pp. 41, 85; Hustler,
July 1977, p. 20 (cutting out eyes); Hustler, August 1977, p. 94;
Hustler, September 1977, p. 17; Hustler, October 1977, p. 51;
Hustler, January 1978, pp. 13 (self-help abortion), 22);
(5) inter-racial sex (e.g. Best of Hustler #2, pp. 73f.);
(6) sadism/masochism (e.g. Best of Hustler #2, pp. 11f.
(article on ‘Fist Fucking’); Hustler, September 1977, pp. 35f.);
(7) child seduction (e.g. Best of Hustler #2, pp. 9, 105;
Hustler, October 1977, p. 63; Chic, October 1977, p. 7;
(8) lesbian sexual intercourse (e.g. Hustler, July 1977, pp. 29,
30 43f.; Chic, January 1978 (State’s Exhibit 11 (TR-377)), pp.
61f.);
(9) heterosexual fellatio and cunnilingus (e.g. Best of Hustler
#2, pp. 48, 76, 77; Hustler, January 1978, pp. 37f. (article on
‘How to Eat Pussy’); Chic, January 1978, pp. 27f.;
(10) pandering advertisements (e.g. Hustler, June 1977, p. 98,
Chic, November 1977 (State’s Exhibit 8 (TR-377)), p. 2;
Hustler, December 1977, p. 38; Hustler, January 1978, p. 16);
and
(11) in one magazine a scratch-and-sniff centerfold which,
when scratched, is supposed to smell like a woman’s vagina
(Hustler, August 1977).
A-24
APPENDIX A
Opinion of the Court of Appeals of Georgia
“Moreover, even if this Court finds one or two of the prof-
fered comparables to be similar to the magazines found obscene,
it should still affirm the trial court’s exclusion inasmuch as the
comparables were offered in 3 groups — those testified about by
Myers (TR-742), by Newhard (TR-750, 759), and by McCoy
(TR-801). Unless all of the comparables in any one group was
admissible the entire group was properly excluded. An offer of
proof that contains both proper and improper evidence is
properly excluded. Culpepper v. Bower, 203 Ga. 784 (1948).”’
Another example of material in the alleged comparable is
comments of humanistic evolutionary science fiction writer,
Issac Asimov, contained in Genesis, September 1977,
“*Lecherous Limericks,” p. 43:
‘A burglar from Asbury Park
Made, at college, his sexual mark.
Getting in the third story
Of the girl’s dormitory
He was raped seven times in the dark.”
The suggested comparables appear to be more animal and race
oriented than the magazines and the trial judge did not abuse
his discretion in refusing to admit the other magazines
distributed by Atlanta News Agency.
Furthermore this court should not hastily abandon the
common sense doctrine in obscenity cases. I concur with what
Judge Evans wrote in Feldschneider v. State, 127 Ga. App. 745,
746 (197 SE2d 184): “It is provided in Code §38-102 that
‘presumptive evidence consists of inferences drawn by human
experience from the connection of cause and effect, and ob-
servations of human conduct.’ Thus, jurors are entitled to use
their own common sense as intelligent human beings on many
questions. They most likely knew what ‘contemporary com-
munity standards’ are as regards the comic book in evidence,
A-25
APPENDIX A
Opinion of the Court of Appeals of Georgia
both in Clarke County and in other parts of the State of
Georgia, and of the United States. Each of them doubtless had
much knowledge of what is going on in this country through
news media, radio, television, newspapers, etc. Shakespeare
laid the scene of many of his plays in Italy, though he had never
visited that country. Thomas E. Watson wrote “The Story of
France’ which is highly regarded by the French people, though
he never visited France. It is most likely that the jurors found
this book, as I do, offensive, utterly without redeeming social
value, published for the purpose of appealing to prurient in-
terest in perversion and degeneracy, and an affront to the
contemporary community standards of any community
anywhere.” Although the “utterly without redeeming social
value”’ test has been altered, the common sense approach, as to
determining contemporary community standards set forth in
Feldschneider, supra, has not yet been overruled and may still
be used in obscenity cases.
The jury may reject all expert opinion evidence and use their
own common sense. “. . . [H]er knowledge would, and ought
to, outweigh the opinion of a whole college of physicians, —
because theirs is at last opinion — mere opinion . . .” City of
Atlanta v. Champe, 66 Ga. 659, 663 (1881).
II.
SUFFICIENCY OF EVIDENCE
From an independent appellate review of the material the
evidence is ample in deciding the fact of obscenity. In addition
to explicit bestiality and other sexual expression obsessions are
such random photography as: ‘“‘More of Jacqueline Kennedy
Onassis Nude’”’ — “Butch and his Georgia peach — this pic-
torial of a black stud (and that is an understatement when you
A-26
APPENDIX A
Opinion of the Court of Appeals of Georgia
get an eyefull of his horsecock)’’ — “‘Farrah Fawcett nude? A
special poster” — “Show me! This is the last word in
photographically explicit sex manuals for children’? — ‘‘Wife
swapping on wheels’ — A baby fetus with umbilical cord lying
in a pool of blood with a mother scolding her daughter, ‘‘I’m
really sick of picking up after you, Susan.’’ — Editorials by
Larry Flynt discussing sex and children stating: ‘Children are
more interested in stuffed animals than in stuffed vaginas. . .
The commission on obscenity and pornography determined that
children are not affected by pornography simply because they
are not interested in it.”
Counsel for appellant argues in his brief: ““The President’s
commission on obscenity has concluded that hard-core por-
nography does not cause an increase in sexual crime or alter the
direction of sexual desires or seriously change any attitudes
toward sex by the vulgarizing of sex life.”” Numerous cases could
be catalogued providing scientific empirical evidence refuting
the commission’s conclusions. One of many examples is Megar
v. State, 144 Ga. App. 504, 568 (1978) wherein porn photos
exhibiting sexual sodomy were used as a blueprint to plan and
execute a real crime of kidnapping and subsequent sexual
sodomy.
Further, fictional mythological evolution is displayed in an
article entitled ‘‘Chickens’’ — bodies of picked nude chickens
with human heads in the grip of death — an article entitled
“Child Abuse in America’ written by humanistic fun-
damentalist theologian James W. Prescott, Ph.D., Board
member of the American Humanist Association and an em-
ployee of the Child Health and Human Development of the
A-27
APPENDIX A
Opinion of the Court of Appeals of Georgia
U.S. Department of Health, Education and Welfare and author
of “Abortion or the Unwanted Child: A Choice for the
Humanistic Society’’ seems to recommend premarital and
extramarital sex as a way to relieve pressure and tension, thus
decreasing child abuse. He states: ‘““Tension must be relieved,
whether through the warm intimacy of sexual contact or
through brutal acts of senseless violence.” He then attacks
Judeo-Christian traditional moral values in favor of his religious
values of what might be labeled permissive humanism —
homosexuality — hedonism and homicide. In the magazine he
states: ‘“‘We must educate Americans to accept physical pleasure
and affection . . . sexual information must flow freely . . .”’ Dr.
Prescott as well as many of the 1968 President’s Commission on
Pornography are active in the A.C.L.U. and in religious
humanism. See The Siecus Circle A Humanist Revolution, by
Claire Chambers, Western Islands, Belmont, Mass. 02178,
p. 28. Note Pierce v. State, 145 Ga. App. 680, 684 (244 SE2d
589); Spillers v. State, 145 Ga. App. 809, 810 (245 SE2d 54).
Prescott, as do many libertarians who share his views, objects to
anyone who injects his restrictive values on them, but are the
first to demand the right to impose their religious morality of
nermissiveness on all others within the community — shades of
Sodom and Gomorrah!
The judgment of the trial court must be affirmed.
A-28
APPENDIX B
DENIAL OF WRIT OF CERTIORARI
BY SUPREME COURT OF GEORGIA
CLERK’S OFFICE SUPREME COURT OF GEORGIA
Atlanta MAR04 1980
Dear Sir:
Case No. 36116 Flynt v. State
The Supreme Court today denied the writ of certiorari in this
case.
All the justices concur.
Very truly yours,
MRS. JOLINE B. WILLIAMS, Clerk
A-29
APPENDIX C
Constitutional Provisions and
Statutes Involved
Amendment I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
Amendment XIV
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws. .
Statutes Involved
Georgia Code Annotated
§26-2101
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 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
A-30
APPENDIX C
Constitutional Provisions and
Statutes Involved
person has constructive knowledge of the obscene 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. Provided, however, the character and reputation of
the individual charged with an offense under this law, and if a
commercial dissemination of obscene material is involved, the
character and reputation of the business establishment involved
may be placed in evidence by the defendant on the question of
intent to violate this law. Undeveloped photographs, molds,
printing plates and the like shall be deemed obscene not-
withstanding that processing or other acts may be required to
make the obscenity patent or to disseminate it.
(b) Material is obscene if:
(1) to the average person, applying contemporary
community standards, taken as a whole, it predominantly
appeals to the prurient interest, that is a shameful or morbid
interest in nudity, sex or excretion;
(2) the material taken as a whole, lacks serious literary,
artistic, political or scientific value, and
(3) the material depicts or describes, in a patently of-
fensive way, sexual conduct specifically defined in sub-
paragraphs (i) through (v) below:
(i) acts of sexual intercourse, heterosexual or
homosexual, normal or perverted, actual or simulated;
(ii) acts of masturbation ;
(iii) acts involving excretory functions or lewd
exhibition of the genitals;
A-31
APPENDIX C
Constitutional Provisions and
Statutes Involved
(iv) acts of bestiality or the fondling of sex organs of
animals;
(v) sexual acts of flagellation, torture or other
violence indicating a sadomasochistic sexual relation-
ship;
(c) Additionally, any device designed or marketed as useful
primarily for the stimulation of human genital organs is obscene
material under this section.
(d) Material, not otherwise obscene, may be obscene under
this section if the distribution thereof, or the offer to do so, or
the possession with the intent to do so is a commercial ex-
ploitation of erotica solely for the sake of their prurient appeal.
(e) It is an affirmative defense under this section that
dissemination of the material was restricted to:
(1) a person associated with an institution of higher
learning, either as a member of the faculty or a matriculated
student, teaching or pursuing a course of study related to such
material; or
(2) a person whose receipt of such material was
authorized in writing by a licensed medical practitioner or
psychiatrist.
A person convicted of distributing obscene material shall be
punished as for 2 misdemeanor of a high and aggravated nature.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.