Sewell v. Georgia
Decision Date | 24 April 1978 |
Docket Number | No. 76-1738,76-1738 |
Citation | 56 L.Ed.2d 76,435 U.S. 982,98 S.Ct. 1635 |
Parties | William M. SEWELL v. State of GEORGIA |
Court | U.S. Supreme Court |
The appeal is dismissed for want of a substantial federal question.
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Georgia Code § 26-2101(a) provides that:
"A person commits the offense of distributing obscene materials when he sells . . . 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 herein, 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."
Sections 26-2101(b) through 26-2101(d) define the term "obscene materials" used in § 26-2101(a). Section 26-2101(b) covers published material alleged to be obscene and generally tracks the guidelines set out in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Section 26-2101(c) states that, in addition to material covered in subsection (b), "any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this section."
The jury was instructed that it should determine the obscen- ity of "Hot and Sultry" under the standards set out in §§ 26-2101(a) and 2101(b) and that the sale of the artificial vagina and the possession of the other material should be considered under §§ 26-2101(a) and 26-2101(c). The trial judge further charged the jury on the meaning of "knowing" in the words set out in § 26-2101(a). A general verdict of guilty was returned.
In this Court, appellant raises constitutional objections to a number of features of § 26-2101. First, he argues that an obscenity statute which defines scienter in a manner which authorizes obscenity convictions on mere "constructive" knowledge impermissibly chills the dissemination of materials protected under the First and Fourteenth Amendments. Jurisdictional § atement 3. Second, he argues that there is no rational basis for § 26-2101(c) and, in addition, that it is unconstitutionally vague. Id., at 3, 9-10. Third, appellant contends that "Hot and Sultry" is not obscene as a matter of law. Id., at 3. And, finally, appellant challenges the warrantless mass seizure of the sexual devices on First, Fourth, and Fourteenth Amendment grounds. Id., at 3, 17.
This is an appeal and I cannot agree with the Court that the first and second questions presented can be dismissed as not presenting substantial federal questions.1
In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), we granted certiorari to consider, but did not reach, the precise scienter issue now raised by appellant. See Pet. for Cert. in Ballew v. Georgia, O.T.1977, No. 76-761, p. 2. I see no basis for concluding that a federal constitutional question sufficiently substantial to be granted review on certiorari is now so insubstantial as not to require exercise of our mandatory appellate jurisdiction in this case. Moreover, even if others do not agree that the void-for-vagueness issue is substantial, the fact that appellant might have been convicted for sale or possession of the seized devices is irrelevant to consideration of the obscenity issue. As we said in Stromberg v. California, 283 U.S. 359, 367-368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931):
See also Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970).
Appellant's second argument, that § 26-2101(c) is void for vagueness, also raises a substantial federal question—one of first impression in this Court—even though appellant fundamentally misapprehends the reach of the First Amendment in his argument that the protections of that Amendment extend to the sexual devices involved in this case.2 As we said in Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972):
(Footnotes omitted.)
See al o Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927); Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).
Section 26-2101(c) at least arguably offends both principles enunciated in Grayned. Even conceding that a jury could properly infer from the shapes of the seized devices that some could be used for sexual stimulation, the fact that some people might use the devices for that purpose scarcely suffices to show that they are designed or marketed primarily for sexual stimulation. As one commentator has noted, statutes couched in such terms of "judgment and degree" contain seeds of "inherent discontrol" over the law enforcement process and have been "virtually [the] exclusive target of void-for-vagueness nullification." Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 92-93 (1960). Moreover, "it is in this realm, where the equilibrium between the individual's claims of freedom and society's demands upon him is left to be struck ad hoc on the basis of a subjective evaluation, . . . that there exists the risk of continuing irregu- larity with which the vagueness cases have been concerned." Id., at 93.3
In addition, although vague statutes may be saved from constitutional infirmity if they require specific intent as an element of an offense, see Papachristou v. City of Jacksonville, supra, 405 U.S. at 163, 92 S.Ct. 839, the constructive scienter requirement of § 26-2101(a), at least as applied in appellant's trial, provides no reasonable assurance that persons will know or ought to know when they are likely to violate § 26-2101(c).
The record here is very clear: Appellant was convicted solely on the basis of the guesses and assumptions of the single witness at trial—a policeman who had never used the devices, Reporter's Transcript, at 24, never seen them used, id., at 25, and who knew of no one who used them for sexual stimulation, id., at 26—that the seized devices were used primarily for the stimulation of human genitals. See id., at 22, 24. In explaining how he had reached his guesses and assumptions notwithstanding a total lack of personal familiarity with the seized devices, that witness stated that he had seen, in the course of his investigations, "newspapers that are printed and catalogs that are sent out to different people pertaining to these things." Id., at 32. No catalogs were introduced into evidence and no evidence was given to show that the unidentified catalogs would likely have been sent to appellant. Thus, how the proverbial "reasonable man," or even a "reasonable clerk in an adult book store," would have been put on notice of the primary use to which the seized...
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