SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968
ELI STANLEY, Appellant,
STATE OF GEORGIA, Appellee.
Appellant on the Merits
Counsel for Appellant
3424 First Nat. Bank Bldg.
Atlanta, Georgia 30303
Opinion 3. Holding That Search
Statement of Jurisdiction
Constitutional Provisions & Statutes Involved
Questions Presented for Review
Concise Statement of Case
Summary of Argument
1. Constitutionality of Obscenity Law
2. Search Warrant Invalid
4. Seizure of Films Without Prior Adjudication of Obscenity
5. No Evidence of Prior Knowledge
3. Holding That Search
Ky. Wolf v. Colorado
Ga. Code 26-6301
Ga. Laws 1963, p. 78
Gent v. Ark.
Ginzburg v. U. S.
Grosso v. U. S.
Lewis v. U. S.
Mapp v. 0hio
Marchetti v. U.S.
Marcus v. Search Warrants
Redrup v. N. Y.
Roth v. United States
Smith v. Cal.
Speiser v. Randall
U.S. v. Kahriger
1st Amend. U. S. Const.
4th Amend. U. S. Const.
14th Amend. U. S. Const.
28 U.S.C.A. No. 2103
Wolf v. Colorado
opinion of the Georgia
Supreme Court in this case is officially reported in 224 Ga. 259 and
unofficially reported in 161 S.E.2d 309.
STATEMENT OF GROUNDS OF THIS COURT'S JURISDICTION
This was a
proceeding brought by the State of Georgia charging the appellant with
felony, possessing obscene material in violation of Georgia Code
amended by an Act of the General Assembly of 1963, p. 78.
judgment of affirmance by
the Supreme Court of Georgia sought to be reviewed was dated April 9,
an order denying a rehearing was dated and filed April 22, 1968. The
appeal was filed in the Supreme Court of Georgia May 1, 1968, the
docketed in the Supreme Court of the United States July 16, 1968, and
jurisdiction was noted Oct. 14., 1968.
of this appeal
has been conferred on this court under and by virtue of 28 U.S.C.A. No.
CONSTITUTIONAL PROVISIONS AND
AMENDMENT I-FREEDOM OF RELIGION,
SPEECH AND PRESS; PEACEFUL ASSEMBLAGE; PETITION OF GRIEVANCES
shall make no law
respecting an establishment of religion, or prohibiting the free
thereof; or abridging the freedom of speech, or of the press; or the
the people peaceably to assemble, and to petition the Government for a
IV-SEARCHES AND SEIZURES
of the people to
be secure in their persons, houses, papers, and effects, against
searches and seizures, shall not be violated, and no Warrants shall
upon probable cause, supported by Oath' or affirmation, and
describing the place to be searched, and the persons or things to be
XIV-CITIZENSHIP; PRIVILEGES AND
IMMUNITIES; DUE PROCESS; EQUAL PROTECTION; APPORTIONMENT OF
REPRESENTATION; DISQUALIFICATION OF
OFFICERS; PUBLIC DEBT; ENFORCEMENT
Section 1. All persons born or
States and subject to the jurisdiction thereof, are citizens of the
States and of the State wherein they reside. No State shall make or
law which shall abridge the privi1eges or immunities of citizens of the
States; nor shall any State deprive any person of life, liberty, or
without due process of law, nor deny to any person within its
equal protection of the laws.
CRIMES: SALE, POSSESSION, ETC. OF
Code § 26-6301 Amended.
No. 53 (House Bill No. 132).
An Act to
Chapter 26-63, relating to obscene pictures and abusive and vulgar
amended, particularly by an Act approved March 17, 1956 (Ga. L. 1956,
p. 801) ,
so as to provide that any person who shall knowingly bring, or cause to
into this State for sale or exhibition, or who shall knowingly sell or
sell, or who shall knowingly lend or give away or offer to lend or give
or who shall knowingly have possession of, or who shall knowingly
transmit to another, any obscene matter, or who shall knowingly
sale by any form of notice, printed, written, or verbal, any obscene
who shall knowingly manufacture, draw, duplicate or print, any obscene
with intent to sell, expose, or circulate the same, shall, if such
knowledge or reasonably should know of the obscene nature of such
guilty of a felony, and upon conviction thereof, shall be punished by
confinement in the penitentiary for not less than one year nor more
years; to provide that upon the recommendation of the jury, said
offense may be
punished as for a misdemeanor; to provide for definitions; to provide
ability; to repeal conflicting laws; and for other purposes.
enacted by the
General Assembly of Georgia:
26-63, relating to obscene pictures and abusive and vulgar language, as
amended, particularly by an Act approved March 17, 1956 (Ga. L. 1956,
is hereby amended by striking Code section 26-6301 in its entirety, and
inserting in lieu thereof a new section 26-6301 to read as follows:
who shall knowingly bring or cause to be brought into this State for
exhibition, or who shall knowingly sell or offer to sell, or who shall
knowingly lend or give away or offer to lend or give away, or who shall
knowingly have possession of, or who shall knowingly exhibit or
another, any obscene matter, or who shall knowingly advertise for sale
form of notice, printed, written, or verbal, any obscene matter, or who
knowingly manufacture, draw, duplicate or print any obscene matter with
intent to sell, expose or circulate the
same, shall, if such person has knowledge or reasonably should know of
obscene nature of such matter, be guilty of a felony, and upon
thereof, shall be punished by confinement in the penitentiary for not
one year nor more than five years; provided, however, in the event the
recommends, such person may be punished as for a misdemeanor. As used
matter is obscene if, considered as a whole, applying contemporary
standards, its predominant appeal is to prurient interest, i.e., a
morbid interest in nudity, sex or excretion."
In the event any
section, subsection, sentence, clause or phrase of this Act shall be
or adjudged invalid or unconstitutional, such adjudication shall in no
affect the other sections, subsections, sentences, clauses or phrases
Act, which shall remain of full force and effect, as if the section,
subsection, sentence, clause or phrase so declared or adjudged invalid
unconstitutional was not originally a part hereof. The General Assembly
declares that it would have passed the remaining parts of this Act if
known that such part or parts hereof would be declared or adjudged
Section 3. All laws and parts of laws in conflict with this Act are hereby repealed.
March 13, 1963.
section 26-6301 (Ga. Laws, 1963, p. 78) , under which the appellant was
convicted, is repugnant to the First and Fourteenth Amendments to the
Constitution of the United States guaranteeing freedom of press and due
in that the statute removes the element of scienter from the definition
offense of possessing obscene matter, and makes the mere possession of
matter a crime.
a search warrant
issued by a U. S. Commissioner authorizing a search of premises for
records and other wagering paraphernalia, founded on affidavits that
whose home is sought to be searched has not registered as a gambler
Wagering Tax Act, is invalid since the holding by this court in
Marchetti v. U.
S., 390 U.S. 39 (88 S. Ct. 697) and Grosso v. U.S., 390 U.S. 62 (88 S.
Court of Georgia erred in holding and deciding that the search warrant
search conducted there under were legal.
a state officer,
acting in concert with federal agents executing a federal search
for failure to register as a gambler, were constitutionally authorized
motion picture films concealed in a desk drawer of appellant's home on
a claim by
the state officer that the films were obscene where such search warrant
describe the films to be seized and there was no prior adjudication
a state may
constitutionally punish an individual for the mere possession of films
to be obscene where there is no evidence to show the appellant had
knowledge that they were obscene, or that he had ever viewed them, or
had permitted juveniles to view them, or that he was publishing them in
manner so obtrusive as to make it impossible for an unwilling
avoid exposure to them, or that he was "pandering" them.
appellant was indicted
by the Fulton County Grand Jury for the offense of possessing obscene
to-wit: three reels of motion picture film. (A. 5)
filed a general demurrer to the indictment on the ground that the Act
conflict with the First and Fourteenth Amendments to the U. S.
removing the element of scienter from the definition of the offense.
(A. 7) The
trial court, after hearing argument of counsel, overruled the demurrer
grounds. (A. 9)
also filed a
special demurrer to that portion of the indictment which alleged that
"accused should reasonably have known of the obscene nature of said
matter," contending that it violated his First and Fourteenth Amendment
rights by removing scienter from the offense. (A 10) This demurrer was
overruled by the court. (A 12)
filed a motion to
suppress the three reels of film from evidence (A. 13) on the grounds
seized from his home by an Investigator of the Criminal Court "without
lawful search warrant particularly describing said articles to be
in violation of his Fourth and Fourteenth Amendment rights and that "no
prior adjudication had been made that said articles were obscene" in
violation of his First and Fourteenth Amendment rights.
was heard by the
trial court on this motion, at which time the State introduced in
federal search warrant and supporting affidavits issued for the
the Federal Wagering Tax Act. (A. 24, 57) After argument of counsel the
was overruled. (A. 58)
proceeded to trial
before a jury, and a verdict of guilty was returned and a sentence of
imposed. (A. 60, 61)
The evidence for the State consisted of testimony by federal agents and one state officer that they searched the appellant's home pursuant to the federal search warrant for the seizure of wagering paraphernalia. They found no articles described in the warrant, but during the course of the search discovered three reels of "stag" film described in the indictment concealed in a desk drawer of one of the bedrooms. They found a motion picture projector and a screen, ran the film and determined in their opinion they were obscene. The films were then seized, the appellant was placed under arrest and the indictment and conviction followed.
verdict of the jury was
returned January 19, 1967, (A. 60) sentence pronounced January 19, 1967
motion for new trial filed the same day (A. iii) and overruled November
1967. (A. iii) Notice of appeal to the Supreme Court of Georgia was
December 14, 1967 (A. 62). The appellant enumerated as error the
the motion to suppress evidence, the overruling of the general demurrer
indictment, the holding by the trial court in its rulings on the
the Act of the General Assembly under which the appellant was tried was
constitutional and not in conflict with the First and Fourteenth
the United States Constitution; and that the evidence did not support
verdict in that the State failed to prove that appellant exhibited the
obscene films to any other person. (A. 64)
the Act of 1963, p. 78, under which appellant was convicted, was first
in the trial court by the 3rd ground of the general demurrer (A. 7) and
special demurrer (A. 10) and were overruled by the trial court (A. 9
enumerated as error in the Georgia Supreme Court, (Grounds 2, 5, and 6,
passed on by the Georgia Supreme Court adversely to appellant in the
section of the opinion, (A. 69, 70 and 71) and motion for rehearing on
ground was made (A. 75 and 76, ground 3).
The invalidity of the search and. seizure was first raised in the trial court by the motion to suppress prior to trial (A. 13), overruled by the trial court (A. 58), enumerated as error in the Georgia Supreme Court (A. 64)
1), and passed on
by the Supreme Court of Georgia in Section 1 of the opinion (A. 66). A
for rehearing of this ground was made. (A. 73, grounds 1 and 2).
insufficiency of the
evidence in failing to show that appellant had exhibited the films to
unwilling individual or a minor was raised in enumeration of error No.
8 in the
Georgia Supreme Court, passed upon by that Court in Section 6 of its
(A. 71), and a motion for rehearing was made on this ground in
paragraph 4 (A.
SUMMARY OF ARGUMENT
statute, in removing the element of scienter from the definition of the
of Possessing Obscene Material, violates the First Amendment rights of
individual, in that it makes the mere possession of such matter a
without requiring any other act or intent to accompany the mere
rule of Roth v. United States, 354 U.S. 476, holding obscenity not to
protected by the First Amendment, is inapplicable to the mere
under which the films in this case were seized by federal and state
was void because it was issued pursuant to the Wagering Tax Act,
Court, in Marchetti and Grosso v. United States, 390 U.S. 39 and 390
has declared such Act constitutionally unenforceable, thus rendering
search warrants issued pursuant thereto unenforceable.
Court held the search warrant in this case to be valid, even though the
appellant, in his motion to suppress in the trial court, alleged the
the films to have been "without a lawful warrant." This holding of the
Georgia Supreme Court was error.
films were seized
from the home of the appellant. There was no warrant particularly
the films to be seized. There had been no prior adjudication that the
were obscene. Inasmuch as there was no warrant describing the films to
seized, or determining that they were obscene, the officers in using
judgment violated the rule of Marcus v. Search Warrants of Property,
717. The seizure of the films under these circumstances violated the
Fourth and Fourteenth Amendment rights.
was no evidence of
prior knowledge by the appellant that the films were obscene, and no
made by the State in its indictment that appellant did more than
There is no contention that the State is concerned with juveniles
contaminated by the films, no contention that persons who are unwilling
the films will become exposed to them, and no contention of pandering.
Therefore the conviction is contrary to Redrup v. New York) Austin v.
and Gent v. Arkansas) 386 U.S. 767.
The main question presented by this appeal involves the validity of the Georgia obscenity statute and whether it violates the First and Fourteenth Amendments in authorizing a conviction for mere possession of articles contended to be obscene in removing the element of scienter from the definition of the offense by punishing a possessor on less evidence than it takes to prove actual knowledge of its obscene nature.
Georgia statute permits
a conviction for possessing obscene articles "if the defendant should
reasonably have known of the obscene nature of said matter" and thus
deprives the accused of his liberty even though he has no actual
it is obscene. Such statute thus places every citizen in jeopardy of
by the State for possessing matter of which he may not have actual
or for believing, as he has a right to under the freedom of press
clause of the
First Amendment, that in his opinion it is not obscene.
statute thus deprives
a citizen of the right given by the First Amendment to judge for
himself, if he
so chooses, as to what photographs, writings or books he may possess in
privacy of his own home.
Smith v. California, 361
U.S. 147,this court
held that an
ordinance, dispensing with the element of scienter, in a prosecution of
bookseller for possession of obscene articles, was unconstitutional as
conflict with the First and Fourteenth Amendments. It was recognized in
that in other types of offenses, such as food and drug legislation,
public interest in the purity of its food is so great as to warrant the
imposition of the highest standard of care on distributors - in fact an
standard which will not hear the distributor's plea as to the amount of
has used." However, the distinction was made because "there is no
specific constitutional inhibition against making the distributors of
strictest censors of their merchandise, but the constitutional
the freedom of speech and of the press stand in the way of imposing a
requirement on the bookseller." (P. 152-153.)
"by dispensing with any requirement of knowledge of the contents of the
book on the part of the seller, the ordinance tends to impose a severe
limitation on the public's access to constitutionally protected
State is prohibited,
by the First and Fourteenth Amendments, from removing the element of
from the offense of selling or pandering obscene material, and is thus
prohibited from punishing a bookseller for selling an obscene book
seller has no actual knowledge of its contents, may the States
less a standard against those who are not charged with pandering,
distributing, but merely possessing the same material? To put the
converse, are the States to be prohibited from convicting a seller who
knowledge of the contents of the book he is selling, but may the same
convict such seller of possessing the same book, even though he was
indictment in this case
charges the appellant with knowingly possessing obscene matter. (A__)
further charges that he should reasonably have known of the obscene
said matter. If he has been called upon to defend his actual knowledge
one thing. If he has been called upon to defend that he should
known of the obscene nature of said matter, that is another. If the
able, by some sort of proof, direct or circumstantial, to show that the
appellant should reasonably have known of the obscene nature of said
such proof could be adduced far short of proving that he actually did
This removed the element of scienter) and thus took from the appellant
constitutional protection of the First and Fourteenth Amendments.
impossible for any person to have actual knowledge that matter is
could he reasonably be expected to have such knowledge, without having
or constructively possessed such matter beforehand. For an individual
knowledge of the contents of a reel of film, or to reach a
determination of his
own that it is obscene, he must learn it by viewing the film, or by
told by another that it is obscene. Thus, to learn firsthand it would
that one possess the film in order to see it, and thus discover for
own opinion of its contents. To be required to accept the opinion of
that such film is obscene is to be deprived of the constitutional right
access of such picture, and thus be deprived of freedom of speech and
Furthermore, the opinion of one man that a certain film is obscene may
oftentimes not be shared by others. Consequently, in order for one to
knowledge of the contents of a film, or to make a determination for
that it is obscene, necessarily requires that he possess it, and such
possession has been made an offense under Georgia law.
if A picks up a
book at a newsstand or library, not knowing of its contents, he is in
possession of it. If he reads it, in order to make a determination that
actually constitutionally protected matter, and after reading it first
ascertains that it is obscene, he has violated the Georgia law because
possessed it at the time he knows it to be obscene. Such a law is
unconstitutional, and cannot stand. If he should only have reasonably
the obscene nature of said matter, instead of actually having such
knowledge, the unconstitutionality of such statute is further removed
example, Roth involved
distribution of obscene material. The decision assumed that Roth was
the contents, and by the distribution of the material could not claim
protection of the First Amendment. This rule might very well be applied
seller or distributor, for once ascertaining for himself that the
obscene he is on notice not to furnish it to others who might become
But Roth does not hold that the mere possessor of such material can be
constitutionally punished. Nor does it hold that the mere possessor may
claim the First Amendment's protection as to his right to decide for
whether it offends him.
extend the rule of
Roth to a mere possessor would curtail the exchange of books,
films because every man and woman would be in fear of buying such items
they would be in peril of being prosecuted by the State if the book or
they have bought turns out to obscene, or the film they are viewing
meet the standards of morality of their community.
article offends the
possessor after he has determined for himself that it is offensive, he
two choices. First, he may destroy it,
and second, he may keep it. But in either case the possessor could be
under the Georgia statute as interpreted by the Georgia Supreme Court
he has already knowingly possessed it, knowing it to be obscene.
case at bar, the
State has sought and is seeking, to deprive the appellant of his
the mere claim that he possessed, (apparently for his own use) three
film, contended by the State to be obscene, and that he either knew, or
reasonably should have known, that they were obscene. No sale is
exhibition or attempted exhibition is alleged. No advertisement is
corruption of minors is alleged. No transportation is alleged. In fact,
is alleged to have been done by the appellant other than the fact that
"possess" such matter.
Georgia Supreme Court,
however, has construed the Georgia statute to punish the mere
such articles, by holding:
SEARCH WARRANT INVALID
time the search
warrant was issued in this case, (App.__,) the Wagering Tax Act was
enforced under the authority of United States v. Kahriger
345 U.S. 22, and Lewis v. United States, 48 U.S. 419, holding the statute to be constitutional.
warrant was issued by a
U.S. Commissioner on the probable belief that a lottery or wagering
was being carried on at the residence of the appellant, and that
sworn evidence was presented that appellant had not registered or paid
as purportedly required by federal law, a warrant should issue to
seizure of such implements of gambling as might be found in use there.
On the 7th
day of September
1966, the date the warrant was issued and executed, the federal
act was being enforced.
as of this date
both Kahriger and Lewis have been specifically overruled by this Court.
January 29, 1968, two weeks after the appellant filed his original
enumeration of errors in the Georgia Supreme Court in this case, in the
unenforceability of the Wagering Tax Act against one who has even the
right to claim the Fifth Amendment privilege was so strongly recognized
inherent defense to such a charge that even the failure of the
assert the claim of privilege was held not to constitute a waiver of
If, in the
the Agent had seized wagering material as a result of the execution of
search warrant, a conviction based thereon would have fallen for the
reasons as those urged in Marchetti and Grosso, on the theory that
would not have been required to criminate himself by registering.
applying this same
analogy to the validity of the search warrant, the appellant had
a gambler and paid his tax, there never would have been federal grounds
issuance of the search warrant because he would obviously not have
federal statute by conducting a wagering operation. Consequently,
constitutional right to exercise his Fifth Amendment protection by not
registering as a gambler bars that same failure to register from being
basis for which a search warrant (the commencement of a prosecution)
therefore void, the seizure of the films was illegal, the finding of
court that as a matter of law the warrant was valid and the holding of
Georgia Supreme Court in division one of its opinion that the warrant
search there under were legal, was erroneous under the Fourth and
Amendments to the U. S. Constitution.
COURT'S HOLDING THAT SEARCH WARRANT
VALID AND THAT SEARCH WAS LAWFUL
The search and seizure question,
while not an
question, is substantial and should be treated as a certiorari able
under 28 U.S.C.A. No. 2103.
in his motion to
suppress, alleged the films to have been seized "without a lawful
warrant." (A.) The warrant was invalid under Grosso & Marchetti and
should have been declared void by the Georgia Supreme Court.
OF FILMS WITHOUT PRIOR ADJUDICATION
recognized by the Supreme Court of the United States inWolf
v. People of State of Colorado, (1949), 338 U.S. 25,
same day that Mapp
was handed down by the Supreme Court the same principle was applied to
statutes of the State of Missouri as they authorized the search for and
of materials sought to be declared obscene.
In Marcus v. Search Warrants of
Property, 367 U. S. 717,
owners of a newsstand where numerous books and periodicals had been
police officers under a warrant issued by a magistrate, moved to
evidence because the procedures applied (l) "allowed a seizure by
officers without notice or any hearing afforded to the movants prior to
for the purpose of determining whether or not these publications are
and (2) because they 'allowed police officers and deputy sheriffs to
make a judicial determination after the warrant was issued as to which
magazines were obscene and were subject to seizure, impairing movants
of speech and publication'." The Supreme Court then determined that the
question was "whether the use by Missouri in this case of the search
seizure power to suppress obscene publications involved abuses inimical
protected expression" and noted that the authority given to "police
officers under the warrants issued in this case, broadly to seize
publications,' poses problems not raised by the warrants to seize
implements' and all intoxicating liquors' involved in the cases cited
Missouri Supreme Court." The Supreme Court, after applying the
Court was dealing with even a stronger position insofar as the
concerned. In Marcus, a search warrant had been obtained in the
language of the
statute and the complaint authorizing the police officers to seize such
magazines as in his view constituted "obscene publications." In the
case at bar no warrant had been obtained authorizing even this broad
there was in
existence a State statute specifically authorizing the issuance of such
warrant, and prescribing the procedure therefore. Such a warrant was
In the case at bar the officer executing the search of the appellant's
not seize any matter or thing called for by the warrant, but made a
ad hoc, that the three reels of film were obscene, without benefit of
adjudication by a court or the Literature Commission.
The appellant recognizes that if an officer, executing a valid search warrant, discovers evidence of another and different crime or sees what is known to be contraband, he may make a seizure, even though the warrant does not particularly describe the article being seized. However, as pointed out in the Marcus case, supra, the State court's "assimilation of obscene literature to gambling paraphernalia or other contraband for purposes of search and seizure does not therefore answer the appellants constitutional claim, but merely restates the issue whether obscenity may be treated in the same way:" (Emphasis added.)
from Speiser v.
Randall] 357 U.S. 513, the Supreme Court reiterated in Marcus that "The
line between speech unconditionally guaranteed and speech which may
legitimately be regulated, suppressed, or punished is finely drawn. The
separation of legitimate from illegitimate speech calls for sensitive
It is to be plainly noted in this case that the officer, after discovering three reels of film and making an inspection thereof, did not seek to enlist the aid of a qualified magistrate to make oath to him what he had seen, and to secure an adjudication by such magistrate that the films were obscene, so that at least the semblance of judicial authority would have been obtained so as to authorize the seizure of the films. Instead, the officer called the Solicitor General, whose duty it is to prosecute, and was advised to use "his own judgment" as to whether the films were obscene. (A.)
stage of the
proceedings in this case did the films become obscene, so as to remove
from the constitutionally protected realm of the First Amendment, and
them in the unprotected area of "obscenity?" Were they obscene when
the appellant first came into possession of them, if he ever did? Were
obscene when the officer first viewed them, or when he reported his
the Solicitor General? Did they become obscene when the Chairman and
the Literature Commission viewed them, or did they only become obscene
jury in this case returned its verdict finding the appellant guilty of
What is obscenity, and how has it been defined by the courts? Did the appellant know that it was obscene before he had himself viewed it? Was the appellant able to apply the same contemporary community standards as those who later testified at the trial in making his determination that the films were obscene? All these questions, and many more, come to mind in now trying to second guess whether the officer, in making such a determination, was applying the same standards and criteria as those applied by the appellant when the films were seized.
The appellant urges that inasmuch as such a thin line exists between obscenity and non-obscenity a mere ministerial officer of the law, engaged in the competitive enterprise of ferreting out crime, may not be authorized to substitute his judgment for that of the appellant and make a determination, on the spot, that the films found in the desk drawer of the appellant's home were to be classified as obscene.
to suppress the
films as evidence should have been sustained, and the holding by the
Supreme Court that no question of freedom of speech or of the press is
5. NO EVIDENCE OF PRIOR KNOWLEDGE, THAT JUVENILES OR UNWILLING PERSONS VIEWED THEM OR OF PANDERING INVOLVED
On May 8,
1967, the United
States Supreme Court decided three different cases at one time. Redrup
of New York, Austin v. Kentucky, and Gent v. State of Arkansas, 386
87 S.Ct. 1414>, Nos. 3, 16 and, 50, October Term, 1966. All three
involved selling and offering obscene literature. All three cases were
on First and Fourteenth Amendment grounds. In a per curium decision,
Supreme Court held:
in the instant
case reflects that there was no contention by the State that the
doing any more than possessing the films, and there was a specific
the Georgia Supreme Court that nothing except possession need be
was no contention that the State was showing a concern for the morals
juveniles. There was no contention that the appellant was showing the
persons unwilling to see them. There was no contention that he was
unnecessary for the
Court to review the evidence in the case to reach this question, for
by its very contention, seeks to punish the appellant for the mere
of these films.
It is the
right of every person in this country to have the freedom to choose
literature he desires to read or determine for himself what pictures or
'he desires to look at. To convict of mere possession is to deny a
The statute under attack in this appeal violates the First and Fourteenth Amendments, the search warrant was void and the seizure of the films from the appellant's custody without a prior adjudication of obscenity or without specifically naming such films to be seized in a valid warrant was illegal, and the judgment of the Supreme Court of Georgia should be reversed.
WESLEY R. ASINOF
3424 First National
Atlanta, Georgia 30303
Attorney for Appellant