Great Speckled Bird of Atlanta Coop. NP v. Stynchcombe

• Decision Date: 16 April 1969
• Docket Number: Civ. A. No. 12231.
• Parties: The GREAT SPECKLED BIRD OF the ATLANTA COOPERATIVE NEWS PROJECT; Thomas Coffin; James Sundberg; J. W. Stephenson Wise, Jr.; George Blau, Plaintiffs, v. Leroy STYNCHCOMBE, Sheriff of Fulton County; Lewis Slaton, Solicitor General of Fulton Superior Court; Herbert Jenkins, Chief of Police of Atlanta; Lamar Martin, Sheriff of DeKalb County; Richard Bell, Solicitor General of DeKalb Superior Court; and John Doe, Defendants.
• Court: U.S. District Court — Northern District of Georgia

298 F. Supp. 1291

The GREAT SPECKLED BIRD OF the ATLANTA COOPERATIVE NEWS PROJECT; Thomas Coffin; James Sundberg; J. W. Stephenson Wise, Jr.; George Blau, Plaintiffs, v. Leroy STYNCHCOMBE, Sheriff of Fulton County; Lewis Slaton, Solicitor General of Fulton Superior Court; Herbert Jenkins, Chief of Police of Atlanta; Lamar Martin, Sheriff of DeKalb County; Richard Bell, Solicitor General of DeKalb Superior Court; and John Doe, Defendants.

Civ. A. No. 12231.

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

April 16, 1969.

Albert M. Horn, Charles Morgan, Jr., Reber F. Boult, Jr., Atlanta, Ga., Melvin L. Wulf, New York City, for plaintiffs.

Lewis R. Slaton, Sol. Gen., A.J.C., J. Robert Sparks, A.J.C., Joel M. Feldman, Asst. Sols. Gen., A.J.C., Atlanta, Ga., for Slaton, Stynchcombe and Jenkins.

Hardaway Young, III, Asst. Sol. Gen., Stone Mt. Judicial Circuit, Decatur, Ga., for Bell and Martin.

Before MORGAN, Circuit Judge, and EDENFIELD and HENDERSON, District Judges.

PER CURIAM:

The plaintiffs in the above-styled case bring this class action pursuant to Rule 23 of the Federal Rules of Civil Procedure in an effort to have Georgia Code Section 26-6301 (Supp. 1967) declared unconstitutional. In connection therewith, a request is made to have issued a temporary restraining order forbidding enforcement of the above stated code section as to the plaintiffs.

The attack upon the constitutionality of 26 Ga.Code 6301 (Supp. 1967)¹ is unwarranted. Plaintiffs construct their primary argument as to the constitutionality of said statute on the premise that as written the code section is an overly broad limitation on expression. In support of this contention, the Court is referred to numerous sources that generally buttress this position; however, none can circumvent the fact that the Georgia code section in question is developed in part verbatim from the American Law Institutes' Model Penal Code, § 207.10(2) (Tent. Draft No. 6, 1957). In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the United States Supreme Court expressly recognized that there is "no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent. Draft No. 6, 1957)."² In the same footnote, the Court approvingly quotes the above section of the Model Penal Code, to wit:

"* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *"

As is observed from a reading of 26 Ga. Code 6301, the major deviation from the above-stated provision of the Model Penal Code concerns the language: "* * * and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * * "

No such proviso is contained verbatim in the Georgia statute. However, the case law as developed by the United States Supreme Court has tacitly added this element of "patent offensiveness" to the code section. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639. In light of the existence of no language to the contrary, the proper construction demanded of 26 Ga.Code 6301 is "whether the average man"³ would have his prurient interests aroused by questioned material. This element,⁴ as well as others formulated in later cases⁵ elaborating on Roth, supra, are grafted to the Georgia law by virtue of the supremacy of the Constitution of the United States and the binding effect of decisions of the Supreme Court of the United States in interpreting that Constitution.

The issue of scienter presents a different problem in that there is language in 26 Ga.Code 6301 which, on first examination, appears to establish a "reasonable man" standard as to the character of questioned material, viz: whether a person "reasonably should know of the obscene nature of such matter".⁶ The teachings of Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) prohibit the state from convicting on obscenity charges the seller who has no knowledge of the contents of the book he is selling. However, the Supreme Court also observed in Smith, supra, that: "The circumstances may warrant the inference that he i. e. the seller was aware of what a book contained, despite his denial".⁷ (brackets added). In the case of Stanley v. State, 224 Ga. 259, 161 S.E.2d 309 (1968), (later reversed by the U. S. Supreme Court on other grounds, Stanley v. State of Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 April 7, 1969) the Georgia Supreme Court interpreted the above-quoted language of the statute in such a manner as to be compatible with the standard developed by Smith, supra. In formulating its opinion in Stanley, supra, the Georgia Court construed "if such person has knowledge or reasonably should know of the obscene nature of such matter"⁸ merely to amount to "a statutory expression of a rule of evidence * * *. Whether a person has knowledge of a fact is a matter peculiarly within the mind of such person, and it is rarely if ever that the defendant's guilty knowledge is susceptible of direct proof. For this reason this court has adhered to the principle that guilty knowledge may be shown by circumstances as well as by actual and direct proof." (Citations omitted).

We concluded that the language of 26 Ga.Code 6301, as elucidated by the Georgia Supreme Court, complies with the scienter mandate developed in Smith v. California, supra.

In arriving at the above determinations, this Court is cognizant of the recent United States Supreme Court decision in Stanley v. State of Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 April 7, 1969. That case addressed itself to the problem of "`mere knowing possession of obscene matter'", and concluded "that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime", i. e., "possession by the individual in the privacy of his own home". The case at bar requires consideration of portions of the statute not discussed in Stanley, supra.

In consideration of the facts of the case sub judice, we are of the opinion that THE GREAT SPECKLED BIRD is not obscene as that term has been defined in Roth supra, and its progeny,⁹ and is constitutionally protected by the First and Fourteenth Amendments to the United States Constitution. The Court, after a thorough examination of all published issues of the BIRD, is unable to discover any single article or issue that...