Sanders v. State

Decision Date28 January 1974
Docket NumberNo. 28352,28352
Citation231 Ga. 608,203 S.E.2d 153
PartiesArthur R. SANDERS, Jr. v. STATE of Georgia.
CourtGeorgia Supreme Court

Glenn Zell, Atlanta, for appellant.

Richard Bell, Dist. Atty., Leonard W. Rhodes, Decatur, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

The District Attorney for the Stone Mountain Judicial Circuit filed suit on behalf of the State of Georgia against Arthur R. Sanders, Jr., doing business as 'Adult Book Store,' together with other named individuals, seeking to have the business of Sanders declared a public nuisance and to obtain an injunction against its continued operation in violation of Section 2 of Ga.L.1971, p. 888 (Code Ann. § 23-3402) and a certain DeKalb County ordinance, Code of DeKalb County, Part II, Chap. 10, Art. VI. 1 A hearing was conducted by the trial court as trior of law and fact, and thereafter the following judgment was rendered:

'Findings of Fact.

'Plaintiff, the State of Georgia, by and through the office of the District Attorney of the Stone Mountain Judicial Circuit filed a petition with an amendment thereto alleging that the named defendants were engaged in the occupation of operating an adult book store on the premises located at 1815 Candler Road, that it was a commercial establishment which offered for sale books, publications and other media which depict nudity and sexual conduct;

'That the operation of this adult book store is in violation of Georgia Code Annotated 23-3402 and of a DeKalb County ordinance which was made a part of this petition and marked Exhibit A;

'That the operation was done without a valid business license and that the operation constituted a public nuisance which should be abated by law 'That the operation is in violation of Code Section 26-2101 of the Criminal Code of Georgia in that obscene materials are being sold, distributed, exhibited and otherwise disseminated to persons other than the defendants and the obscene materials were possessed by the defendants in and upon said premises with the intent to sell, distribute and otherwise disseminate the same to other persons and the defendants were aware of and knew the obscene nature of said obscene materials.

'The plaintiff introduced some six exhibits, three of which were material sold and maintained for sale by the defendants. Defendants contended that under the Code Section and under the ordinance, all of the various places in the county selling certain publications of general circulation would be in violation of said ordinance and said Code Section.

'Defendants contend that any interference with their operation would be in violation of the First Amendment of the Constitution of the United States, that the ordinance of DeKalb County was promulgated after the defendants began business and was, therefore, ex post facto.

'The defendants further contended that the statutes and ordinance are repugnant to the First, Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States and that said provisions are void because of vagueness and impermissible overbreadth. The defendants admit that they sell and possess for sale State's Exhibits 4, 5 and 6.

'Conclusions of Law.

'The court finds that the said book store was operating within 200 yards of some 29 residences, a church and a church book store.

'The court finds that the three exhibits heretofore mentioned come within the definition of Code Section 23-3403 and that the defendant has admitted having the three exhibits and having them for the purpose of sale as well as having an unknown number of other copies of said same exhibits.

'The court finds that State's Exhibit Number 5 comes within the Obscenity Statute.

'Wherefore, 1-The court hereby restrains and enjoins said adult book store from operating and restrains and enjoins the defendants from operating said adult book store.

'2-The Sheriff of DeKalb County is hereby directed to abate said public nuisance and padlock said premises until further order of this court.

'3-That said defendants were operating without a valid license from DeKalb County, Georgia.'

The judgment of the trial court has been appealed to this court and presents for resolution two central issues. These are:

(1) Whether Section 2 of Ga.L.1971, pp. 344, 345 (Code Ann. § 26-2103) represents an unconstitutional prior restraint when construed and applied to authorize the permanent closure of the book store as a public nuisance upon a finding that a single publication, obscene under the standards of Code Ann. § 26-2101(b), was sold on its premises; and,

(2) whether Section 2 of Ga.L.1971, pp. 888, 889 (Code Ann. § 23-3402) and the DeKalb County ordinance (Code of DeKalb County, Part II, Ch. 10, Art. VI) are unconstitutional facially and as applied because they are overly broad and therefore void as an infringement of free speech and expression.


Section 2 of Ga.L.1971, pp. 344, 345 (Code Ann. § 26-2103) provides, 'The use of any premises in violation of any of the provisions of this Chapter (Code Chap. 26-21) shall constitute a public nuisance.' The Chapter referred to in this Code Section is that part of the Code dealing with obscene materials. Section 26-2101(b) of this chapter was recently construed and upheld by this court in Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456. We note that if premises are used to sell or distribute material and film which are obscene under § 26-2101(b), such premises constitute a public nuisance under § 26-2103 of the Code.

The problem encountered in applying these laws in this case to justify closing the entire book store is the ancient right of free men to say and print what they wish without prior restraint. Blackstone put it succinctly in these words: 'Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.' 4 Blackstone, Commentaries, 151, 152. This principle has found expression in Art. I, Sec. I, Par. XV (Code Ann. § 2-115) of the Georgia Constitution, providing, 'No law shall ever be passed to curtail, or restrain the liberty of speech, or of the press; any person may speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that liberty.' The First Amendment to the Federal Constitution also provides that: 'Congress shall make no law . . . abridging the freedom of speech or of the press.'

Free expression is rooted deeply in our way of life and cannot be suppressed through statutes which compromise the exercise of this freedom. This does not mean that one is free to express obscenity. Injunctive procedures are available to stop obscene expressions. Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464; Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712; Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456, supra.

In Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 the Supreme Court of the United States disregarded the notion once held that the doctrine of prior restraint did not apply to attempts to enforce 'the primary requirements of decency . . . against obscene publications.' See Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357. The court, in Kingsley Books, authorized a temporary injunction to preserve the status quo pending adjudication of obscenity and declared such a procedure was acceptable if there were procedural safeguards which prevented serious and long-lasting suppression before a final judicial determination of obscenity was made. See, also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). In other cases before the Court, Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649; Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966; and Blount v. Rizzi,400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971), three procedural prerequisites were further evolved respecting the suppression or seizure of materials or film alleged obscene without doing damage to the doctrine of prior restraint. Summarized, they are: (1) in each case the government must institute judicial proceedings whereby the material or film is seized or suppressed, and it must further bear the burden of proof of the obscenity of the material or film; (2) the government-instituted proceeding must place the defendant exhibitor or seller on notice as to what film or publication he has exhibited, sold or held for sale that the government seeks to seize or suppress; and (3) the proceeding must provided for a prompt and final judicial determination of the obscenity of the film or material. Temporary restraints to preserve the status quo in this regard are authorized after an adversary hearing and when followed by a prompt final determination of obscenity. See, also, Paris Adult Theatre I v. Slaton, 413 U.S. 49, (93 S.Ct. 2628, 37 L.Ed.2d 446). For cases involving seizures under warrant, see Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745; Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757; A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; and Marcus v. Search Warrants of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127.

One obscene book on the premises of a book store does not make an entire store obscene. The injunction closing this store and padlocking it as a public nuisance necessarily halted the future sale and distribution of other printed material which may not be obscene, thereby precluding the application of the above procedural safeguards and creating an unconstitutional rstraint upon appellant. This broad result cannot be reconciled with free expression under our Constitutions. As said in the case of Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1: An ...

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