309 F.Supp. 998 (N.D.Ga. 1969), Civ. A. 13001, Gable v. Jenkins

Docket Nº:Civ. A. 13001
Citation:309 F.Supp. 998
Party Name:Gable v. Jenkins
Case Date:October 24, 1969
Court:United States District Courts, 11th Circuit, Northern District of Georgia

Page 998

309 F.Supp. 998 (N.D.Ga. 1969)

George GABLE, doing business as Book Sales Co., Plaintiff,

v.

Herbert T. JENKINS, Chief of Police of the City of Atlanta, Defendant.

Civ. A. No. 13001.

United States District Court, N.D. Georgia, Atlanta Division.

Oct. 24, 1969

Judgment Affirmed April 20, 1970.

Page 999

Wesley R. Asinof, Charles E. Markeles, Atlanta, Ga., for plaintiff.

Henry L. Bowden, John E. Dougherty, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., Atlanta, Ga., for defendant.

Before MORGAN, Circuit Judge, and HOOPER and SMITH, District Judges.

LEWIS R. MORGAN, Circuit Judge:

Plaintiff George Gable is engaged in the business of distributing printed material consisting of books, magazines and periodicals, and defendant Chief of Police Herbert T. Jenkins, whose duty it is to enforce the penal laws of the State, has caused plaintiff to be arrested and a number of his books seized for violating Code 26-2101 prohibiting the distribution of obscene material. Jurisdiction is properly invoked.

Plaintiff alleges that the Georgia statute, 26-2101, under which he is being prosecuted, violates the First and Fourteenth Amendments of the United States Constitution. We do not believe that the right involved herein is a public right; however, assuming arguendo that it is, the discussion below should suffice. Carter v. Gautier, 305 F.Supp. 1098 (M.D.Ga.1969). The contentions are seriatim discussed in particular.

1.

Plaintiff's first point of contention is that Code 26-21011 is violative

Page 1000

of the Constitution in that it is vague and facially overbroad. Vagueness of a criminal law rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. If the scope of the power given to officials under a statute is so broad that the exercise of constitutionally protected conduct depends upon the subjective views of those officials as to the propriety of the conduct, the statute is unconstitutional as a denial of due process. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Gilstrap v. United States, 389 F.2d 6 (5 Cir., 1968). The concept of overbreadth of criminal laws rests on principles of substantive due process which forbid the prohibition of certain individual freedoms, the principal issue not being reasonable notice or adequate standards, though such issues may be involved, but whether the language of the statute, given its normal meaning, is so broad that its sanctions may apply to conduct protected by the Constitution. Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Landry v. Daley, 280 F.Supp. 938 (D.C.Ill., 1968).

Applying these rules of law to the present statute leads this Court to the conclusion that the plaintiff's contention is void of merit. Georgia Code Section 26-2101 is a recent enactment of the Georgia Legislature2 and does but two things-- it prohibits the distribution of obscene materials and defines what is meant by the term 'obscene materials'. In defining this term, the statute carefully utilizes the definition of obscene materials as that term has been elucidated by the United States Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 and A Book Named John Cleland's Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. The prior statute on this subject (Ga.Code 26-6301) was not nearly so well written nor did it contain the definition of obscenity as defined by the Supreme Court, yet a three-judge court in this district recently upheld its constitutionality in Great Speckled Bird of Atlanta Cooperative News Project v. Stynchcombe, 298 F.Supp. 1291 (D.C., 1969). This new code section, 26-2101, is simply a more limited version of the former Georgia law, 26-6301, and has a stronger constitutional base than the former Georgia statute.

However, as to the overbreadth of the statute there is one phrase that plaintiff isolates as being defective. Section 26-2101 prohibits in subsection (a) the dissemination 'to any person' of obscene material. The plaintiff argues the term 'any person' is too broad. In support of this allegation, the United States Supreme Court case of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, is relied heavily upon. Stanley, supra, gives a comprehensive study of Freedom of Expression guaranteed by the Bill of Rights to the Constitution and the intrusion of obscenity into this almost unlimited freedom. Obscenity, it was stated in Roth, supra, is not within the protected...

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