Jenkins v. Georgia 8212 557

• Decision Date: 24 June 1974
• Docket Number: No. 73,73
• Citation: Jenkins v. Georgia 8212 557, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974)
• Parties: Billy JENKINS, Appellant, v. State of GEORGIA. —557
• Court: U.S. Supreme Court

418 U.S. 153

94 S.Ct. 2750

41 L.Ed.2d 642

Billy JENKINS, Appellant,

v State of GEORGIA.

No. 73—557.

Argued April 15, 1974.

Decided June 24, 1974.

Syllabus

Appellant was convicted, prior to the announcement of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and companion cases, of violating Georgia's obscenity statute for showing the film 'Carnal Knowledge' in a motion picture theater. The jury had been instructed on obscenity under that statute, which defines obscene material in terms similar to the definition in Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1. The Georgia Supreme Court affirmed. Held:

1. Appellant, whose conviction was on appeal at the time of the announcement of Miller, is entitled to any benefit available thereunder. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590. P. 155.

2. There is no constitutional requirement that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community—Miller approving, but not mandating, such an instruction—and jurors may properly be instructed to apply 'community standards,' without a specification of the 'community' by the trial court P. 157.

3. The film is not obscene under the constitutional standards announced in Miller and appellant's conviction therefore contravened the First and Fourteenth Amendments. Pp. 157—161.

(a) Juries do not have unbridled discretion in determining what is 'patently offensive' since 'no one will be subject to prosecution for the sale or exposure of obscene materials (that do not) depict or describe patently offensive 'hard core' sexual conduct . . ..' Miller, supra, at 27, 93 S.Ct. at 2616. P. 160 161.

(b) This Court's own view of the film impels the conclusion that the film's depiction of sexual conduct is not patently offensive. The camera does not focus on the bodies of actors during scenes of 'ultimate sexual acts,' nor are the actors' genitals exhibited during those scenes. The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards. P. 161.

230 Ga. 726, 199 S.E.2d 183, reversed.

Louis Nizer, New York City, for appellant.

Tony H. Hight, Atlanta, Ga., for appellee.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Appellant was convicted in Georgia of the crime of distributing obscene material. His conviction, in March 1972, was for showing the film 'Carnal Knowledge' in a movie theater in Albany, Georgia. The jury that found appellant guilty was instructed on obscenity pursuant to the Georgia statute, which defines obscene material in language similar to that of the definition of obscenity set forth in this Court's plurality opinion in Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966):

'Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters.' Ga.Code Ann. § 26—2101(b) (1972).¹

We hold today in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, that defendants convicted prior to the announcement of our Miller decisions but whose convictions were on direct appeal at that time should receive any benefit available to them from those decisions. We conclude here that the film 'Carnal Knowledge' is not obscene under the constitutional standards announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and that the First and Fourteenth Amendments therefore require that the judgment of the Supreme Court of Georgia affirming appellant's conviction be reversed.

Appellant was the manager of the theater in which 'Carnal Knowledge' was being shown. While he was exhibiting the film on January 13, 1972, local law enforcement officers seized it pursuant to a search warrant. Appellant was later charged by accusation, Ga.Code Ann. § 27—704 (1972), with the offense of distributing obscene material.² After his trial in the Superior Court of Dough- erty County, the jury, having seen the film and heard testimony, returned a general verdict of guilty on March 23, 1972.³ Appellant was fined $750 and sentenced to 12 months' probation. He appealed to the Supreme Court of Georgia, which by a divided vote affirmed the judgment of conviction on July 2, 1973. That court stated that the definition of obscenity contained in the Georgia statute was 'considerably more restrictive' than the new test set forth in the recent case of Miller v. California, supra, and that the First Amendment does not protect the commercial exhibition of 'hard core' pornography. The dissenting Justices, in addition to other disagreements with the court, thought that 'Carnal Knowledge' was entitled to the protection of the First and Fourteenth Amendments. Appellant then appealed to this Court and we noted probable jurisdiction, 414 U.S. 1090, 94 S.Ct. 1090, 38 L.Ed.2d 547 (1973).

We agree with the Supreme Court of Georgia's implicit ruling that the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community. Miller approved the use of such instructions; it did not mandate their use. What Miller makes clear is that state juries need not be instructed to apply 'national standards.' We also agree with the Supreme Court of Georgia's implicit approval of the trial court's instructions directing jurors to apply 'community standards' without specifying what 'community.' Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of 'contemporary community standards' as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller.

We now turn to the question of whether appellant's exhibition of the film was protected by the First and Fourteenth Amendments, a question which appellee asserts is not properly before us because appellant did not raise it on his state appeal. But whether or not appellant argued this constitutional issue below, it is clear that the Supreme Court of Georgia reached and decided it. That is sufficient under our practice. Raley v. Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344 (1959). We also note that the trial court instructed the jury on charges other than the distribution charge.⁴ However, the jury returned a general verdict and appellee does not suggest that appellant's conviction can be sustained on these alternative grounds. Cf. Stromberg v. California, 283 U.S. 359, 367—368, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931).

There is little to be found in the record about the film 'Carnal Knowledge' other than the film itself.⁵ However, appellant has supplied a variety of information and critical commentary, the authenticity of which appellee does not dispute. The film appeared on many 'Ten Best' lists for 1971, the year in which it was released. Many but not all of the reviews were favorable. We believe that the following passage from a review which appeared in the Saturday Review is a reasonably accurate description of the film:

'(It is basically a story) of two young college men, roommates and lifelong friends forever preoccupied with their sex lives. Both are first met as virgins. Nicholson is the more knowledgeable and attractive of the two; speaking colloquially, he is a burgeoning bastard. Art Garfunkel is his friend, the nice but troubled guy straight out of those early Feiffer cartoons, but real. He falls in love with the lovely Susan (Candice Bergen) and unknowingly shares her with his college buddy. As the 'safer' one of the two, he is selected by Susan for marriage.

'The time changes. Both men are in their thirties, pursuing successful careers in New York. Nicholson has been running through an average of a dozen women a year but has never managed to meet the right one, the one with the full bosom, the good legs the properly rounded bottom. More than that, each and every one is a threat to his malehood and peace of mind, until at last, in a bar, he finds Ann-Margret, an aging bachelor girl with striking cleavage and, quite obviously, something of a past. 'Why don't we shack up?' she suggests. They do and a horrendous relationship ensues, complicated mainly by her paranoidal desire to marry. Meanwhile, what of Garfunkel? The sparks have gone out of his marriage, the sex has lost its savor, and Garfunkel tries once more. And later, even more foolishly, again.'⁶

Appellee contends essentially that under Miller the obscenity vel non of the film 'Carnal Knowledge' was a question for the jury, and that the jury having resolved the question against appellant, and there being some evidence to support its findings, the judgment of conviction should be affirmed. We turn to the language of Miller to evaluate appellee's contention.

Miller states that the questions of what appeals to the 'prurient interest' and what is 'patently offensive' under the obscenity test which it formulates are 'essentially questions of fact.' 413 U.S., at 30, 93 S.Ct., at 2618. 'When triers of fact are asked to decide whether 'the average person, applying contemporary community standards' would consider certain materials 'prurient' it would be unrealistic to require that the answer be based on some abstract formulation . . .. To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be...