2021 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

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.