2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 12 - Offenses Against Public Health and Morals
Article 3 - Obscenity and Related Offenses
Part 1 - General Provisions
§ 16-12-80. Distributing Obscene Material; Obscene Material Defined; Penalty

1. A person commits the offense of distributing obscene material 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 in this Code section, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter; and a person has constructive knowledge of the obscene contents 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, that 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 notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it.
2. 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 offensive way, sexual conduct specifically defined in subparagraphs (A) through (E) of this paragraph:
      1. Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;
      2. Acts of masturbation;
      3. Acts involving excretory functions or lewd exhibition of the genitals;
      4. Acts of bestiality or the fondling of sex organs of animals; or
      5. Sexual acts of flagellation, torture, or other violence indicating a sadomasochistic sexual relationship.
3. Any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this Code section.
4. Material not otherwise obscene may be obscene under this Code section if the distribution thereof, the offer to do so, or the possession with the intent to do so is a commercial exploitation of erotica solely for the sake of their prurient appeal.
5. It is an affirmative defense under this Code 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.
6. A person who commits the offense of distributing obscene material shall be guilty of a misdemeanor of a high and aggravated nature.

(Ga. L. 1878-79, p. 163, § 1; Code 1882, § 4537a; Penal Code 1895, § 394; Penal Code 1910, § 385; Code 1933, § 26-6301; Ga. L. 1935, p. 158, § 1; Ga. L. 1941, p. 358, § 1; Ga. L. 1956, p. 801, § 1; Ga. L. 1963, p. 78, § 1; Code 1933, § 26-2101, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1971, p. 344, § 1; Ga. L. 1975, p. 498, §§ 1, 2; Ga. L. 1992, p. 6, § 16; Ga. L. 1996, p. 6, § 16.)

- Constitutional guarantee of free speech and press, Ga. Const. 1983, Art. I, Sec. I, Para. V.

- For article surveying developments in Georgia constitutional law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 51 (1981). For article, "Sex In and Out of Intimacy," see 59 Emory L.J. 809 (2010). For note, "Defending Against a Charge of Obscenity in the Internet Age: How Google Searches Can Illuminate Miller's 'Contemporary Community Standards,'" see 26 Ga. St. U.L. Rev. 1029 (2010). For comment on Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969) as to constitutional protection of private possession of obscene material, see 21 Mercer L. Rev. 337 (1969).

ANALYSIS

• General Consideration
• Constitutional Issues
• Preseizure Adversary Hearing
• Community Standard
• Comparative Evidence
• Injunctive Relief
• Application

General Consideration

Construction.

- Because O.C.G.A. § 16-12-80 prohibited a person from disseminating obscene material of any description, and the definition of obscene material made no reference to a minor, distributing obscene materials was not a crime against the person of a minor child within the plain meaning of former O.C.G.A. § 24-9-23(b) (see now O.C.G.A. § 24-5-503). Peck v. State, 300 Ga. App. 375, 685 S.E.2d 367 (2009).

- States have power to make morally neutral judgment that public exhibition of obscene material, or commerce in such material, has tendency to injure community as a whole, to endanger public safety, or to jeopardize states' right to maintain a decent society. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227, 41 L. Ed. 2d 1173 (1974).

State's broad power to regulate obscenity does not extend to mere possession by individual in privacy of the individual's own home. Gable v. Jenkins, 309 F. Supp. 998 (N.D. Ga. 1969), aff'd, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595 (1970).

Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was designed to reach only "hardcore pornography" and was outside of the protection of U.S. Const., amend. 1. Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456 (1973).

- No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct. Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974).

- State regulation of obscenity must conform to procedures ensuring against curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. Central Agency, Inc. v. Brown, 306 F. Supp. 502 (N.D. Ga. 1969).

O.C.G.A. § 16-12-80 is not preempted by the federal Medical Device Amendments of 1976, 21 U.S.C. § 360c et seq., as the statute does not impose any requirements relating to the safety or effectiveness of sexual devices but, rather, relates to public morality and the distribution of obscene material. This That And The Other Gift And Tobacco, Inc. v. Cobb County, 285 F.3d 1319 (11th Cir. 2002).

Cited in Hawkins v. State, 124 Ga. App. 53, 183 S.E.2d 239 (1971); 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Gornto v. Thomas, 439 F.2d 1406 (5th Cir. 1971); Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822 (1972); Fishman v. State, 229 Ga. 133, 189 S.E.2d 429 (1972); Palaio v. McAuliffe, 466 F.2d 1230 (5th Cir. 1972); Fishman v. State, 128 Ga. App. 505, 197 S.E.2d 467 (1973); Sonesta Int'l Hotels Corp. v. Colony Square Co., 482 F.2d 281 (5th Cir. 1973); Speight v. Slaton, 415 U.S. 333, 94 S. Ct. 1098, 39 L. Ed. 2d 367 (1974); Ballew v. State, 138 Ga. App. 530, 227 S.E.2d 65 (1976); Teal v. State, 143 Ga. App. 47, 238 S.E.2d 128 (1977); Ritchie v. State, 240 Ga. 15, 240 S.E.2d 551 (1977); Allen v. State, 144 Ga. App. 233, 240 S.E.2d 754 (1977); Cargal v. State, 144 Ga. App. 238, 241 S.E.2d 8 (1977); Ballew v. State, 144 Ga. App. 238, 241 S.E.2d 19 (1977); Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978); Simpson v. State, 144 Ga. App. 657, 242 S.E.2d 265 (1978); Hays v. State, 145 Ga. App. 65, 243 S.E.2d 263 (1978); Hess v. State, 145 Ga. App. 685, 244 S.E.2d 587 (1978); Pierce v. State, 145 Ga. App. 680, 244 S.E.2d 589 (1978); Spillers v. State, 145 Ga. App. 809, 245 S.E.2d 54 (1978); Farmer v. State, 146 Ga. App. 118, 245 S.E.2d 467 (1978); Chancey v. State, 146 Ga. App. 20, 245 S.E.2d 470 (1978); Johnson v. State, 147 Ga. App. 112, 248 S.E.2d 565 (1978); Speight v. State, 148 Ga. App. 87, 251 S.E.2d 36 (1978); Kametches v. State, 242 Ga. 721, 251 S.E.2d 232 (1978); Stop, Inc. v. State, 149 Ga. App. 306, 254 S.E.2d 463 (1979); M.G.T. Corp. v. State, 149 Ga. App. 588, 254 S.E.2d 909 (1979); Terry v. State, 152 Ga. App. 344, 262 S.E.2d 496 (1979); Whisenhunt v. State, 152 Ga. App. 829, 264 S.E.2d 271 (1979); Denton v. State, 154 Ga. App. 427, 268 S.E.2d 725 (1980); Spry v. State, 156 Ga. App. 74, 274 S.E.2d 2 (1980); Loveland v. State, 156 Ga. App. 746, 275 S.E.2d 387 (1980); Septum, Inc. v. Keller, 614 F.2d 456 (5th Cir. 1980); Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); Gateway Books, Inc. v. State, 157 Ga. App. 843, 278 S.E.2d 728 (1981); American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981); Westmoreland v. State, 164 Ga. App. 455, 297 S.E.2d 357 (1982); Penthouse Int'l, Ltd. v. McAuliffe, 702 F.2d 925 (11th Cir. 1983); Smith v. State, 174 Ga. App. 238, 329 S.E.2d 507 (1985); Cunningham v. State, 260 Ga. 827, 400 S.E.2d 916 (1991); Chamblee Visuals v. City of Chamblee, 270 Ga. 33, 506 S.E.2d 113 (1998); 2025 Highway, L.L.C. v. Bibb County, 377 F. Supp. 2d 1310 (M.D. Ga. 2005); In the Matter of Levin, 289 Ga. 170, 709 S.E.2d 808 (2011).

Private possession of obscene materials is protected under U.S. Const., amends. 1 and 14. Gable v. Jenkins, 309 F. Supp. 998 (N.D. Ga. 1969), aff'd, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595 (1970).

Motel owner's interest in providing obscene films to guests at the owner's motel in the privacy of the guest's own rooms was not protected by the First Amendment, notwithstanding the possibility that the people receiving the objects of the owner's commerce might be shielded from state regulation in the guest's use of the obscene materials. Majmundar v. Veline, 256 Ga. 8, 342 S.E.2d 682 (1986).

- Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was not violative of U.S. Const., amends. 1, 4, 5, 9 and 14 on the ground that the constitutional right to mere possession of obscene material necessarily implies the right to purchase such material and, hence, the right of others to distribute the material. Walter v. State, 131 Ga. App. 667, 206 S.E.2d 662, appeal dismissed, 233 Ga. 10, 209 S.E.2d 605 (1974); Playmate Cinema, Inc. v. State, 154 Ga. App. 871, 269 S.E.2d 883 (1980).

- States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including so-called "adult" theaters from which minors are excluded. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227, 41 L. Ed. 2d 1173 (1974).

Obscenity is not within the protected pale of U.S. Const., amends. 1, 14. Gable v. Jenkins, 309 F. Supp. 998 (N.D. Ga. 1969), aff'd, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595 (1970).

Implicit in history of U.S. Const., amend. 1 is rejection of obscenity as utterly without redeeming social importance. Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712, cert. denied, 404 U.S. 950, 92 S. Ct. 281, 30 L. Ed. 2d 267 (1971).

Obscenity is not protected by free speech clause of U.S. Const., amend. 1, and may be regulated by the state. Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456 (1973); S.S.W. Corp. v. Slaton, 231 Ga. 734, 204 S.E.2d 155 (1974).

- When defendant's films amounted to nothing more than a public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain, the films were not protected by U.S. Const., amend. 1 and were obscene within the definition of former Code 1933, § 26-2101(b) (see now O.C.G.A. § 16-12-80(b)). Clayton v. State, 149 Ga. App. 374, 254 S.E.2d 495 (1979).

Devices which are within the definition of O.C.G.A. § 16-12-80(c) are not protected expressions under either the First Amendment of the U.S. Constitution or the free speech clause of the Georgia Constitution. Morrison v. State, 272 Ga. 129, 526 S.E.2d 336 (2000).

- See Dyke v. State, 232 Ga. 817, 209 S.E.2d 166 (1974), cert. denied, 421 U.S. 952, 95 S. Ct. 1687, 44 L. Ed. 2d 106 (1975); Pierce v. State, 239 Ga. 844, 239 S.E.2d 28 (1977).

Constitutionality of O.C.G.A. § 16-12-80(a) and (c) has been upheld. Williams v. State, 157 Ga. App. 494, 277 S.E.2d 781 (1981).

Constitutionality of former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) has been finally and conclusively determined. Dobbs v. State, 145 Ga. App. 14, 243 S.E.2d 275, cert. denied, 439 U.S. 899, 99 S. Ct. 265, 58 L. Ed. 2d 248 (1978).

Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was constitutional. S.S.W. Corp. v. Slaton, 231 Ga. 734, 204 S.E.2d 155 (1974); Wood v. State, 144 Ga. App. 236, 240 S.E.2d 743 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 265, 58 L. Ed. 2d 247 (1978); Showcase Cinemas, Inc. v. State, 156 Ga. App. 225, 274 S.E.2d 578 (1980).

Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was not unconstitutionally vague. Walter v. State, 131 Ga. App. 677, 206 S.E.2d 662, appeal dismissed, 233 Ga. 10, 209 S.E.2d 605 (1974); This That And The Other Gift And Tobacco, Inc. v. Cobb County, 285 F.3d 1319 (11th Cir. 2002).

Former Code 1933, § 26-2101 was not overly broad or vague in definition. Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456 (1973).

Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was not violative of U.S. Const., amend. 1. Brown v. State, 156 Ga. App. 201, 274 S.E.2d 572 (1980).

- Advertising ban on sexual devices found in O.C.G.A. § 16-12-80 violates the First Amendment as: (1) an advertisement targeting lawful consumers would not necessarily be misleading simply because certain persons encountering the advertisement could not lawfully purchase such devices, and an explanation of those persons entitled to purchase such devices would not need to be lengthy and complex; and (2) the ban is more extensive than necessary. This That And The Other Gift And Tobacco, Inc. v. Cobb County, 285 F.3d 1319 (11th Cir. 2002).

When a prior appellate panel decided that O.C.G.A. § 16-12-80 banned all advertising of the sexual devices in issue in violation of the First Amendment, the district court on remand violated the law-of-the-case doctrine when the court revisited the issue of whether the statute violated the plaintiffs' First Amendment rights and granted the defendants summary judgment. This That & the Other Gift & Tobacco, Inc. v. Cobb County, 439 F.3d 1275 (11th Cir. 2006).

Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) did not violate U.S. Const., amends. 1 and 14. Gable v. Jenkins, 309 F. Supp. 998 (N.D. Ga. 1969), aff'd, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595 (1970); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227, 41 L. Ed. 2d 1173 (1974); Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669 (1980).

- Any statute or ordinance which seeks to impose criminal or civil sanctions for exercise of expression that is not obscene cannot withstand proper constitutional attack for overbreadth. Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974).

Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was not unconstitutional as overbroad, arbitrary, or capricious that the statute constituted an unreasonable invasion of an adult's or married couple's right of sexual privacy, or that no necessity or rational basis appeared for the total prohibition of these types of devices. Hostetler v. State, 145 Ga. App. 55, 243 S.E.2d 256, cert. denied, 439 U.S. 947, 99 S. Ct. 341, 58 L. Ed. 2d 339 (1978); Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980).

Former Code 1933, § 26-2101(c) (see now O.C.G.A. § 16-12-80(c)) was not unconstitutional for vagueness and overbreadth. Sewell v. State, 238 Ga. 495, 233 S.E.2d 187 (1977), appeal dismissed, 435 U.S. 982, 98 S. Ct. 1635, 56 L. Ed. 2d 76 (1978).

Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) did not violate constitutional requirement of scienter. Northcutt v. State, 157 Ga. App. 762, 278 S.E.2d 702 (1981).

When charge on constructive knowledge was in exact language of O.C.G.A. § 16-12-80 and did not place greater burden on appellant than knowledge of contents of materials appellant distributed in prosecution for distribution of obscene materials, the charge did not violate constitutional scienter requirement. Mason v. State, 159 Ga. App. 755, 285 S.E.2d 91 (1981).

Constructive knowledge, as defined in former Code 1933, § 26-2101(a) (see now O.C.G.A. § 16-12-80(a)), did not violate constitutional standards. Wood v. State, 144 Ga. App. 236, 240 S.E.2d 743 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 265, 58 L. Ed. 2d 247 (1978).

Charge on constructive knowledge does not violate constitutional requirements of scienter. Paperback Book Mart, Inc. v. State, 148 Ga. App. 377, 251 S.E.2d 396 (1978).

Constitutional attack upon former Code 1933, § 26-2101 that constructive knowledge as found therein was a violation of constitutional requirements as to scienter was not meritorious. Showcase Cinemas, Inc. v. State, 156 Ga. App. 225, 274 S.E.2d 578 (1980).

Preseizure Adversary Hearing

Absence of constitutionally sufficient warrant.

- Arrest and seizure of obscene materials without constitutionally sufficient warrant is unreasonable and evidence is not admissible. Wood v. State, 144 Ga. App. 236, 240 S.E.2d 743 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 265, 58 L. Ed. 2d 247 (1978).

Requiring adversary hearing before seizure of materials relates merely to competency of evidence in obscenity prosecution and does not bar prosecution based on other legally obtained evidence. Matter seized illegally, i.e., without a hearing, must be returned. Gable v. Jenkins, 309 F. Supp. 998 (N.D. Ga. 1969), aff'd, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595 (1970).

Prosecution or threat thereof before adversary determination of obscenity constitutes unconstitutional burden upon freedom of expression. Sokolic v. Ryan, 304 F. Supp. 213 (S.D. Ga. 1969).

Any criminal prosecution prior to adversary hearing is violative of U.S. Const., amend. 1. Sokolic v. Ryan, 304 F. Supp. 213 (S.D. Ga. 1969).

Unconstitutional system of prior restraint with respect to certain men's magazines was engaged in by local law enforcement authorities where such authorities did not obtain warrant from neutral and detached magistrate based upon threshold determination of obscenity before making series of arrests of dealers and distributors on charges that their dealings in such magazines violated obscenity laws. Penthouse Int'l, Ltd. v. McAuliffe, 436 F. Supp. 1241 (N.D. Ga. 1977), aff'd in part and rev'd in part on other grounds, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131 (1980).

- There is no prior restraint of freedom of expression by any unlawful state-initiated or state-enforced restraint where a warrantless arrest is made but no obscene materials are seized. Wood v. State, 144 Ga. App. 236, 240 S.E.2d 743 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 265, 58 L. Ed. 2d 247 (1978).

- It is illegal for officers to seize a movie film unless and until there has been held a prior adversary judicial hearing upon question of obscenity. The Supreme Court has decided that lest the nonobscene and constitutionally protected be suppressed it is better that some judicial officer determine that challenged matter is obscene before its seizure. Gable v. Jenkins, 309 F. Supp. 998 (N.D. Ga. 1969), aff'd, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595 (1970).

One procedural protection afforded publications regardless of eventual evaluation or characterization of same is requirement that materials may not be seized prior to judicially conducted adversary proceeding in which same is found in fact to be obscene. Sokolic v. Ryan, 304 F. Supp. 213 (S.D. Ga. 1969).

Before a seizure of alleged obscene material can be made, an adversary hearing on question of its obscenity must first be had. Central Agency, Inc. v. Brown, 306 F. Supp. 502 (N.D. Ga. 1969); Peachtree News Co. v. Slaton, 226 Ga. 471, 175 S.E.2d 539 (1970).

- Just as there can be no massive seizure of allegedly obscene materials for destruction without a prior adversary type hearing and determination of obscenity, there can be no valid revocation of a business license for having exhibited an obscene film without such prior hearing and determination. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).

Adversary hearing not required prior to instituting of criminal action as to purchased materials. Gornto v. McDougall, 336 F. Supp. 1372 (S.D. Ga. 1972), appeal dismissed, 482 F.2d 361 (5th Cir. 1973).

- There is a vast distinction in requiring an adversary hearing for a determination of obscenity before seizure of books, and requiring such hearing when books were not seized but were procured by purchase from dealer by prosecuting attorney and are in the prosecutor's possession. Peachtree News Co. v. Slaton, 226 Ga. 471, 175 S.E.2d 539 (1970).

Community Standard

Material must substantially exceed limits of candor set by contemporary community standards.

- U.S. Const., amend. 14 does not permit conviction on obscenity charges unless work complained of is found substantially to exceed limits of candor set by contemporary community standards. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

- While a state is not precluded from regarding 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. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

Determination of community standards is not based merely upon what is appropriate for children. Dumas v. State, 131 Ga. App. 79, 205 S.E.2d 119 (1974).

- It is constitutionally permissible to permit juries to rely on understanding of community from which they came as to contemporary community standards, and states have considerable latitude in framing statutes under this element. A state may choose to define an obscenity offense in terms of contemporary community standards without further specification, or it may choose to define standards in more precise geographic terms. Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974).

- Jurors represent average members of their own community and, as triers of fact are charged with responsibility of making determination of whether material is obscene, guided by evidence presented by their individual and collective awareness of standards and norms of their community. Gornto v. State, 227 Ga. 46, 178 S.E.2d 894 (1970).

- Standard to be applied is not what may or may not have been held to be obscene in other jurisdictions, but what is acceptable in local community. Gornto v. State, 227 Ga. 46, 178 S.E.2d 894 (1970).

Juries can consider state or local community standards in lieu of national standards. Jenkins v. State, 230 Ga. 726, 199 S.E.2d 183 (1973), rev'd on other grounds, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974).

Community by which standards for obscenity are gauged is the State of Georgia rather than nation-wide community or any smaller unit of the state. Dumas v. State, 131 Ga. App. 79, 205 S.E.2d 119 (1974).

- Trial court's charge to jury to apply "community standards" in determining whether material was obscene, without specifying what "community" was proper. Lee v. State, 214 Ga. App. 164, 447 S.E.2d 323 (1994).

Use of word "approved" in course of defining phrase "community standards" is proper. 2150 Stewart Ave., Inc. v. State, 173 Ga. App. 407, 326 S.E.2d 579 (1985).

- Instructing jury that "community standards" is defined in terms of what an average person in the community would approve of, as opposed to tolerate, does not constitute harmful or reversible error in prosecution for distributing obscene materials. 134 Baker St., Inc. v. State, 172 Ga. App. 738, 324 S.E.2d 575 (1984).

- In instructions on community standard, use of word "acceptance" rather than "tolerance" is not harmful error. Brown v. State, 156 Ga. App. 201, 274 S.E.2d 572 (1980); Williams v. State, 157 Ga. App. 494, 277 S.E.2d 781 (1981).

Rationale behind admission of comparative evidence in an obscenity case is to allow defendant the opportunity to attempt to persuade trier of fact that challenged material does not exceed contemporary community standards, as represented by comparable material and against which challenged material is judged. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

- Evidence of mere availability of similar materials is not by itself sufficiently probative of community standards to be admissible in absence of proof that material enjoys a reasonable degree of community acceptance. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

- Predicate for conclusion that 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 defendants foundation defendant must show a reasonable degree of community acceptance of works like defendant's own. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

Sales figures may be used to satisfy community acceptance foundational requirement. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

Comparative evidence must be proffered as a whole to satisfy defendant's burden of demonstrating that comparable evidence is similar to defendant's challenged material. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

Injunctive Relief

Threat to property interest permits injunction against investigation and prosecution.

- Motel owner's showing that the owner depended upon income from movie rentals in making the decision to purchase the motel and in sustaining the business established a sufficient threat to a property interest to permit an injunction of an investigation and any prosecution under the state obscenity statute. Majmundar v. Veline, 256 Ga. 8, 342 S.E.2d 682 (1986).

Exhibition of film falling within definition of former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) can be enjoined. S.S.W. Corp. v. Slaton, 231 Ga. 734, 204 S.E.2d 155 (1974).

- Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) defined a criminal offense, but the exhibition of materials found to be obscene as defined by that section may be enjoined in a civil proceeding under Georgia case law. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227, 41 L. Ed. 2d 1173 (1974).

- Mere temporary injunction hearings to determine whether a temporary injunction should be issued restraining showing of a film need not be surrounded with formalities of procedure that must attend hearings finally determining rights. Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464, cert. denied, 404 U.S. 1003, 92 S. Ct. 560, 30 L. Ed. 2d 557 (1971).

Interlocutory judicial determination of obscenity not equivalent of probable cause that material may be obscene. S.S.W. Corp. v. Slaton, 231 Ga. 734, 204 S.E.2d 155 (1974).

- Interlocutory judicial restraint with respect to a claim under U.S. Const., amend. 1 should be followed as promptly as is practicable by final judicial determination of such constitutional issues. S.S.W. Corp. v. Slaton, 231 Ga. 734, 204 S.E.2d 155 (1974).

- When, after viewing film, superior court judge finds probable cause that film is obscene and enjoins defendant from exhibiting or showing film in public within jurisdiction of court, injunction feature of order should be limited so as to provide that it shall continue only "until further order of court." Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464, cert. denied, 404 U.S. 1003, 92 S. Ct. 560, 30 L. Ed. 2d 557 (1971).

- Whether to grant continuance on hearing to determine whether temporary injunction should be issued restraining the showing of a film is within trial judge's sound legal discretion, and in absence of clear showing that the judge abused judicial discretion in this regard it will not be controlled. Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464, cert. denied, 404 U.S. 1003, 92 S. Ct. 560, 30 L. Ed. 2d 557 (1971).

- Injunction is impermissible and unconstitutional when the injunction operates not to redress alleged private wrongs but to suppress, on basis of previous publications, distributions of literature of any kind. Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974).

Application

1. In General

Particular issue of a self-styled "magazine for men" fell within O.C.G.A. § 16-12-80 in that: (1) it contained a large number of photographs of women in various degrees of nudity, depicting sexual conduct and lewd exhibition in a patently offensive way; (2) the magazine's overwhelming effect, obviously planned, was to create sexual excitement and stimulation, predominantly appealing, as a whole, to the prurient interest, even though there were items that concerned topics other than sex; and (3) the magazine, taken as a whole, had no serious literary, artistic, political, or scientific value, although there may have been some slight literary, artistic, and political value to a small number of items. Penthouse Int'l, Ltd. v. Webb, 594 F. Supp. 1186 (N.D. Ga. 1984).

Evidence was sufficient to justify conviction of possession of obscene material with intent to disseminate where defendant offered to "take over" an adult bookstore after clerk was arrested for selling obscene magazine, and the defendant was employed by the store in a supervisory capacity. Kervin v. State, 172 Ga. App. 478, 323 S.E.2d 643 (1984).

Exhibition of obscene film to consenting adults is a crime. Evans Theatre Corp. v. Slaton, 227 Ga. 337, 180 S.E.2d 712, cert. denied, 404 U.S. 950, 92 S. Ct. 281, 30 L. Ed. 2d 267 (1971).

Obscene, pornographic films not constitutionally immune from state regulation because exhibited for consenting adults only. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227, 41 L. Ed. 2d 1173 (1974).

Juries do not have unbridled discretion in determining what is patently offensive. Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974).

An otherwise obscene film cannot be constitutionally salvaged by adding to it a vague moral which is superimposed on predominant theme of film which is an appeal to a prurient interest in sex. Dyke v. State, 232 Ga. 817, 209 S.E.2d 166 (1974), cert. denied, 421 U.S. 952, 95 S. Ct. 1687, 44 L. Ed. 2d 106 (1975).

- See Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir. 1980), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131 (1980).

- When sexually oriented materials offered for sale and seized were obviously for primary purpose of stimulation of human genital organs in violation of subsection (c) and the materials were in plain view to officers in a lawful position to view and see the materials, no warrant was necessary to make a lawful seizure. Ball v. State, 149 Ga. App. 270, 253 S.E.2d 886 (1979).

- Ability to conduct warrantless arrest for offense committed in officer's presence contemplates officer's ability to determine that an offense has actually been committed; officer was incorrect in the officer's belief that the officer or the officer's agents may properly make initial determination concerning obscenity of a publication and that the officer may make a warrantless arrest if the officer determines that the subject matter of a publication is obscene. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir. 1980), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131 (1980).

- In view of trial court's charge instructing jury that in order for the jury to find materials in question obscene the jury must first determine that magazines met criteria set forth in subsection (b), the court's additional instruction that material "which appeals to prurient interest is material which has a tendency to excite lustful thoughts," even if error, would not be harmful. Bohin v. State, 156 Ga. App. 206, 274 S.E.2d 592 (1980).

- Crime of distributing obscene materials is completed when a person intentionally distributes any material classified as obscene, knowing the obscene nature of that material. Trotti v. State, 144 Ga. App. 648, 242 S.E.2d 270, cert. denied, 439 U.S. 1051, 99 S. Ct. 733, 58 L. Ed. 2d 712 (1978).

- Whether or not the defendant has "knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material" is a question generally for the jury. Day v. State, 190 Ga. App. 580, 379 S.E.2d 548 (1989).

Extent of knowledge necessary under former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was knowledge of facts which would put a reasonable and prudent man on notice as to suspect nature of material. Hess v. State, 146 Ga. App. 874, 247 S.E.2d 546 (1978).

Applicable test is not whether accused actually knew devices were obscene, but whether the accused has knowledge of facts which would put a reasonable and prudent man on notice as to suspect nature of the material. Underwood v. State, 144 Ga. App. 684, 242 S.E.2d 339 (1978); Dorsey v. State, 188 Ga. App. 695, 374 S.E.2d 102, cert. denied, 188 Ga. App. 911, 374 S.E.2d 102 (1988).

- In trial of case involving distribution of obscene material, charge by court on constructive knowledge is not subject to complaint that the charge shifts burden of proof and relieves the state of proving every essential element of a crime in violation of U.S. Const., amends. 1, 14, since the front cover of the magazine would put anyone on notice as to the magazine's contents. Spry v. State, 156 Ga. App. 74, 274 S.E.2d 2 (1980).

- Government need not offer extensive evidence of methods of production, editorial goals, if any, or methods of operation in order for evidence to be sufficient to trigger the "Ginzburg pandering instruction." Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980).

- When allegedly obscene films and projectors are seized as evidence of a violation of former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80), and case was pending in state courts, federal courts will not interfere with pending case by requiring release of contraband as an unconstitutional seizure. G & E Bus. Servs., Inc. v. McAuliffe, 480 F. Supp. 239 (N.D. Ga. 1979).

- It is no longer necessary in cases where alleged obscene materials themselves are available for inspection by finder of fact that expert testimony be produced on behalf of prosecution. Dumas v. State, 131 Ga. App. 79, 205 S.E.2d 119 (1974).

Test for obscenity is whether or not to average person, applying contemporary community standards, dominant theme of material taken as a whole appeals to prurient interest. Feldschneider v. State, 127 Ga. App. 745, 195 S.E.2d 184 (1972).

Three tests must be satisfied before written materials can be held to be obscene; these are: (1) that dominant theme of material taken as a whole appeals to prurient interest in sex; (2) that material is patently offensive because it affronts contemporary community standards relating to description or representations of sexual matters; and (3) that the material is utterly without redeeming social value. Feldschneider v. State, 127 Ga. App. 745, 195 S.E.2d 184 (1972); Gornto v. McDougall, 336 F. Supp. 1372 (S.D. Ga. 1972), appeal dismissed, 482 F.2d 361 (5th Cir. 1973).

Obscene material is material which deals with sex in a manner appealing to prurient interest. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980).

- In prosecution for distributing obscene materials, trial court's instruction equating prurient interest with abnormal interest in sex did not present appropriate standard for review of allegedly obscene materials, in that abnormal interest is more inclusive than prurient interest. Northcutt v. State, 157 Ga. App. 762, 278 S.E.2d 702 (1981).

Material which appeals to prurient interest is material having a tendency to excite lustful thoughts. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980). But see Bohin v. State, 156 Ga. App. 206, 274 S.E.2d 592 (1980).

- County district attorneys must consider magazines and other printed material as a whole. Penthouse Int'l, Ltd. v. McAuliffe, 454 F. Supp. 289 (N.D. Ga. 1978).

In determining obscenity or nonobscenity of magazines, they must be taken as a whole. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

Nudity alone is not enough to make material legally obscene. Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974).

Depiction of nudity and sex is not per se obscene. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980).

- In prosecution for distributing obscene material, when the magazine depicted two women and a man engaging in sexual activity, the "prurient interest" standard did not have to be considered with regard to its appeal to a "bizarre deviant group," and the jury could adequately apply the standard without any evidence designed to guide the jury in applying the standard. 134 Baker St., Inc. v. State, 172 Ga. App. 738, 324 S.E.2d 575 (1984).

Jury may consider setting in which publication was presented to public, and view publications against a background of commercial exploitation of erotica solely for sake of their prurient appeal. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980).

- Trial court was not required to charge the jury as to the proper procedure for evaluating the societal value of a work beyond charging the language contained in O.C.G.A. § 16-12-80(b). Lee v. State, 214 Ga. App. 164, 447 S.E.2d 323 (1994).

Methods of creation, promotion, or dissemination are relevant in determining whether materials are obscene. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980).

Evidence of pandering to prurient interest in creation, promotion or dissemination of material is relevant in determining whether the material is obscene. Showcase Cinemas, Inc. v. State, 156 Ga. App. 225, 274 S.E.2d 578 (1980).

Jury can find material obscene if the jury finds the material was pandered, that is, the distribution was a "commercial exploitation of erotica solely for the sake of their prurient appeal". This phrase has come to be known as the "Ginzburg pandering instruction". Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980).

- In a close case where there is a valid argument of the existence of some slight social value of a literary, historical, artistic, or technical nature, a finding of obscenity will not be made even though the book is found to possess requisite prurient appeal and to be patently offensive unless there is also clear evidence that material has passed threshold of permitted exposure in that its commercial dissemination amounts to pandering, or it is made available to juveniles, or it becomes impossible for unwilling individual to avoid exposure. Fishman v. State, 128 Ga. App. 505, 197 S.E.2d 467 (1973).

Expert testimony is not necessary to prove obscenity of sexual devices; nevertheless, the Court of Appeals has recognized the use of witnesses to testify that certain devices are designed primarily for stimulation of genital organs. Williams v. State, 157 Ga. App. 494, 277 S.E.2d 781 (1981).

3. Determination of Number of Offenses Committed

Single sale of two obscene magazines as one offense.

- Single sale of two obscene magazines made by one seller to one buyer in one transaction at same time and place is only one offense. Adult Bookmart, Inc. v. State, 152 Ga. App. 838, 264 S.E.2d 273 (1979), cert. denied, 449 U.S. 886, 101 S. Ct. 240, 66 L. Ed. 2d 114 (1980).

- Double jeopardy rights are not denied when defendant is convicted of multiple offenses for numerous showings of an obscene film. A separate offense occurs each time the obscene film is shown. Dyke v. State, 232 Ga. 817, 209 S.E.2d 166 (1974), cert. denied, 421 U.S. 952, 95 S. Ct. 1687, 44 L. Ed. 2d 106 (1975).

- When allegedly obscene films seized by investigators were shown either in separate booths or two films to a booth, the booths were coin-operated and required that a number of coins be deposited before full length of a particular film could be viewed, each showing of each film constituted a separate and distinct violation. G & E Bus. Servs., Inc. v. State, 156 Ga. App. 391, 274 S.E.2d 644 (1980).

Single, uninterrupted, continuous showing of multiple films as part of single exhibition constitutes one offense. Maxwell v. State, 152 Ga. App. 776, 264 S.E.2d 254 (1979), cert. denied, 449 U.S. 889, 101 S. Ct. 245, 66 L. Ed. 2d 114 (1980); G & E Bus. Servs., Inc. v. State, 156 Ga. App. 391, 274 S.E.2d 644 (1980).

- When purpose and intent of entire operation is the continuing sale of pornographic material, whether sales are made on a minute-by-minute basis, a day-by-day basis, or on an intermittent basis, this type of operation is similar to a "fence" who deals in trafficking of stolen goods. Such receiver and seller of stolen goods deals with whomever and wherever the opportunity presents itself, on an intermittent basis, to carry out a singular purpose and plan. These continuing sales, on an intermittent basis, constitute a single scheme or plan for purpose of single prosecution. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980).

Sales of two magazines at different times on same date to same buyer constitutes two offenses. Stancil v. State, 155 Ga. App. 731, 272 S.E.2d 511 (1980), cert. denied, 451 U.S. 975, 101 S. Ct. 2058, 68 L. Ed. 2d 357 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 50 Am. Jur. 2d, Lewdness, Indecency, and Obscenity, §§ 4 et seq., 33.

- 67 C.J.S., Obscenity, § 1 et seq.

- Exclusion from evidence of parts of a publication, or mail matter, other than those charged to be obscene, or oral testimony relating to purpose or effect of publication as a whole, 69 A.L.R. 644.

Constitutional guaranties of freedom of speech and of the press as applied to statutes and ordinances providing for licensing or otherwise regulating distribution of printed matter or solicitation of subscriptions therefor, 127 A.L.R. 962.

Modern concept of obscenity, 5 A.L.R.3d 1158.

Admissibility of evidence of public-opinion polls or surveys in obscenity prosecutions on issue whether materials in question are obscene, 59 A.L.R.5th 749.

Constitutionality of state statutes banning distribution of sexual devices, 94 A.L.R.5th 497.