O.C.G.A. § 16-12-80 (2019)

Annotations

Cross references. Constitutional guarantee of free speech and press, Ga. Const. 1983, Art. I, Sec. I, Para. V. Law reviews. For comment on Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969) as to constitutional protection of private possession of obscene material, see 21 Mercer L. Rev. 337 (1969).

For article surveying developments in Georgia constitutional law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 51 (1981). For article, “Sex In and Out of Intimacy,” see 59 Emory L.J. 809 (2010). For note, “Defending Against a Charge of Obscenity in the Internet Age: How Google Searches Can Illuminate Miller’s ‘Contemporary Community Standards,’” see 26 Georgia St. U. L. Rev. 1029 (2010).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION CONSTITUTIONAL ISSUES PRESEIZURE ADVERSARY HEARING COMMUNITY STANDARD COMPARATIVE EVIDENCE INJUNCTIVE RELIEF APPLICATION 1. IN GENERAL 2. CONSIDERATIONS IN DETERMINING OBSCENITY 3. DETERMINATION OF NUMBER OF OFFENSES COMMITTED General Consideration Construction. - Because O.C.G.A. § 16-12-80 prohibited a person from disseminating obscene material of any description, and the definition of obscene material made no reference to a minor, distributing obscene materials was not a crime against the person of a minor child within the plain meaning of former O.C.G.A.§ 24-9-23(b) (see now O.C.G.A. § 24-5-503). Peck v. State, 300 Ga. App. 375, 685 S.E.2d 367, 2009 Ga. App. LEXIS 1171 (2009). States have power to determine that public exhibition of obscene materials is harmful. - States have power to make morally neutral judgment that public exhibition of obscene material, or commerce in such material, has tendency to injure community as a whole, to endanger public safety, or to jeopardize states’ right to maintain a decent society. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446, 1973 U.S. LEXIS 19 (1973).

State’s broad power to regulate obscenity does not extend to mere possession by individual in privacy of the individual’s own home. Gable v. Jenkins, 309 F. Supp. 998, 1969 U.S. Dist. LEXIS 13744 (D. Ga. 1969), aff’d, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595, 1970 U.S. LEXIS 2072 (1970). Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was designed to reach only “hardcore pornography” and was outside of the protection of U.S. Const., amend. 1. Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456, 1973 Ga. LEXIS 686 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227, 41 L. Ed. 2d 1173, 1974 U.S. LEXIS 2194 (1974). Section is aimed at patently offensive, “hard core” sexual conduct. - No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct. Jenkins v. Georgia, 418 U.S. 153,

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94 S. Ct. 2750, 41 L. Ed. 2d 642, 1974 U.S. LEXIS 85 (1974). Extent of permitted regulation. - State regulation of obscenity must conform to procedures ensuring against curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. Central Agency, Inc. v. Brown, 306 F. Supp. 502, 1969 U.S. Dist. LEXIS 8799 (N.D. Ga. 1969). O.C.G.A. § 16-12-80 is not preempted by the federal Medical Device Amendments of 1976, 21 U.S.C. § 360c et seq., as the statute does not impose any requirements relating to the safety or effectiveness of sexual devices but, rather, relates to public morality and the distribution of obscene material. This That And The Other Gift And Tobacco, Inc. v. Cobb County, 285 F.3d 1319, 2002 U.S. App. LEXIS 4307 (11th Cir. 2002). Constitutional Issues Private possession of obscene materials is protected under U.S. Const., amends. 1 and 14. Gable v. Jenkins, 309 F. Supp. 998, 1969 U.S. Dist. LEXIS 13744 (D. Ga. 1969), aff’d, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595, 1970 U.S. LEXIS 2072 (1970). Motel owner’s interest in providing obscene films to guests at the owner’s motel in the privacy of the guest’s own rooms was not protected by the First Amendment, notwithstanding the possibility that the people receiving the objects of the owner’s commerce might be shielded from state regulation in the guest’s use of the obscene materials. Majmundar v. Veline, 256 Ga. 8, 342 S.E.2d 682, 1986 Ga. LEXIS 682 (1986). Constitutional right to possess obscene material does not imply rights to purchase or distribute it. - Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was not violative of U.S. Const., amends. 1, 4, 5, 9 and 14 on the ground that the constitutional right to mere possession of obscene material necessarily implies the right to purchase such material and, hence, the right of others to distribute the material. Walter v. State, 131 Ga. App. 667, 206 S.E.2d 662, 1974 Ga. App. LEXIS 1512 (1974);

Playmate Cinema, Inc. v. State, 154 Ga. App. 871, 269 S.E.2d 883, 1980 Ga. App. LEXIS 2425, 1980 Ga. App. LEXIS 3242 (1980) Commerce in obscene material is unprotected by any constitutional doctrine of privacy. - States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including so-called “adult” theaters from which minors are excluded. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446, 1973 U.S. LEXIS 19 (1973). Obscenity is not within the protected pale of U.S. Const., amends. 1, 14. Gable v. Jenkins, 309 F. Supp. 998, 1969 U.S. Dist. LEXIS 13744 (D. Ga. 1969), aff’d, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595, 1970 U.S. LEXIS 2072 (1970). Implicit in history of U.S. Const., amend. 1 is rejection of obscenity as utterly without redeeming social importance. Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712, 1971 Ga. LEXIS 710, cert. denied, 404 U.S. 950, 92 S. Ct. 281, 30 L. Ed. 2d 267, 1971 U.S. LEXIS 659 (1971). Obscenity is not protected by free speech clause of U.S. Const., amend. 1, and may be regulated by the state. Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456, 1973 Ga. LEXIS 686 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227, 41 L. Ed. 2d 1173, 1974 U.S. LEXIS 2194 (1974); S.S.W. Corp. v. Slaton, 231 Ga. 734, 204 S.E.2d 155, 1974 Ga. LEXIS 1208 (1974). Films portraying hard core sexual conduct, for its own sake, not protected speech. - When defendant’s films amounted to nothing more than a public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain, the films were not protected by U.S. Const., amend. 1 and were obscene within the definition of former Code 1933, § 26-2101(b) (see now O.C.G.A. § 16-12-80(b)). Clayton v. State, 149 Ga. App. 374, 254 S.E.2d 495, 1979 Ga. App. LEXIS 1856 (1979). Devices which are within the definition of O.C.G.A. § 16-12-80(c) are not

Constitutional Issues (Cont’d) protected expressions under either the First Amendment of the U.S. Constitution or the free speech clause of the Georgia Constitution. Morrison v. State, 272 Ga. 129, 526 S.E.2d 336, 2000 Ga. LEXIS 91 (2000). Constitutionality of section. - See Dyke v. State, 232 Ga. 817, 209 S.E.2d 166, 1974 Ga. LEXIS 1098 (1974), cert. denied, 421 U.S. 952, 95 S. Ct. 1687, 44 L. Ed. 2d 106, 1975 U.S. LEXIS 1521 (1975); Pierce v. State, 239 Ga. 844, 239 S.E.2d 28, 1977 Ga. LEXIS 1353 (1977), transferred, 145 Ga. App. 680, 244 S.E.2d 589, 1978 Ga. App. LEXIS 2085 (1978). Constitutionality of O.C.G.A. § 16-12-80(a) and (c) has been upheld. Williams v. State, 157 Ga. App. 494, 277 S.E.2d 781, 1981 Ga. App. LEXIS 1880 (1981). Constitutionality of former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) has been finally and conclusively determined. Dobbs v. State, 145 Ga. App. 14, 243 S.E.2d 275, 1978 Ga. App. LEXIS 1841, cert. denied, 439 U.S. 899, 99 S. Ct. 265, 58 L. Ed. 2d 248, 1978 U.S. LEXIS 3399 (1978). Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was constitutional. S.S.W. Corp. v. Slaton, 231 Ga. 734, 204 S.E.2d 155, 1974 Ga. LEXIS 1208 (1974); Wood v. State, 144 Ga. App. 236, 240 S.E.2d 743, 1977 Ga. App. LEXIS 2652 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 265, 58 L. Ed. 2d 247, 1978 U.S. LEXIS 3397 (1978); Showcase Cinemas, Inc. v. State, 156 Ga. App. 225, 274 S.E.2d 578, 1980 Ga. App. LEXIS 3008 (1980), cert. dismissed, 451 U.S. 934, 101 S. Ct. 2037, 68 L. Ed. 2d 343, 1981 U.S. LEXIS 1817 (1981). Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was not unconstitutionally vague. Walter v. State, 131 Ga. App. 667, 206 S.E.2d 662, 1974 Ga. App. LEXIS 1512 (1974); This That And The Other Gift And Tobacco, Inc. v. Cobb County, 285 F.3d 1319, 2002 U.S. App. LEXIS 4307 (11th Cir. 2002). Former Code 1933, § 26-2101 was not overly broad or vague in definition. Slaton v. Paris Adult Theatre I, 231

Ga. 312, 201 S.E.2d 456, 1973 Ga. LEXIS 686 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227, 41 L. Ed. 2d 1173, 1974 U.S. LEXIS 2194 (1974). Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was not violative of U.S. Const., amend. 1. Brown v. State, 156 Ga. App. 201, 274 S.E.2d 572, 1980 Ga. App. LEXIS 2999 (1980). Advertising ban violates First Amendment. - Advertising ban on sexual devices found in O.C.G.A. § 16-12-80 violates the First Amendment as: (1) an advertisement targeting lawful consumers would not necessarily be misleading simply because certain persons encountering the advertisement could not lawfully purchase such devices, and an explanation of those persons entitled to purchase such devices would not need to be lengthy and complex; and (2) the ban is more extensive than necessary. This That And The Other Gift And Tobacco, Inc. v. Cobb County, 285 F.3d 1319, 2002 U.S. App. LEXIS 4307 (11th Cir. 2002). When a prior appellate panel decided that O.C.G.A. § 16-12-80 banned all advertising of the sexual devices in issue in violation of the First Amendment, the district court on remand violated the law-of-the-case doctrine when the court revisited the issue of whether the statute violated the plaintiffs’ First Amendment rights and granted the defendants summary judgment. This That & the Other Gift & Tobacco, Inc. v. Cobb County, 439 F.3d 1275, 2006 U.S. App. LEXIS 3577 (11th Cir. 2006). Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) did not violate U.S. Const., amends. 1 and 14. Gable v. Jenkins, 309 F. Supp. 998, 1969 U.S. Dist. LEXIS 13744 (D. Ga. 1969), aff’d, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595, 1970 U.S. LEXIS 2072 (1970); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446, 1973 U.S. LEXIS 19 (1973); Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 1980 Ga. App. LEXIS 1762, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3413 (1980). Expression outside defined area is constitutionally protected expression. - Any statute or ordinance

OFFENSES/HEALTH & MORALS

which seeks to impose criminal or civil sanctions for exercise of expression that is not obscene cannot withstand proper constitutional attack for overbreadth. Sanders v. State, 231 Ga. 608, 203 S.E.2d 153, 1974 Ga. LEXIS 1160 (1974). Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was not unconstitutional as overbroad, arbitrary, or capricious that the statute constituted an unreasonable invasion of an adult’s or married couple’s right of sexual privacy, or that no necessity or rational basis appeared for the total prohibition of these types of devices. Hostetler v. State, 145 Ga. App. 55, 243 S.E.2d 256, 1978 Ga. App. LEXIS 1860, cert. denied, 439 U.S. 947, 99 S. Ct. 341, 58 L. Ed. 2d 339, 1978 U.S. LEXIS 3683 (1978); Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82, 1980 Ga. App. LEXIS 3130 (1980). Former Code 1933, § 26-2101(c) (see now O.C.G.A. § 16-12-80(c)) was not unconstitutional for vagueness and overbreadth. Sewell v. State, 238 Ga. 495, 233 S.E.2d 187, 1977 Ga. LEXIS 1071 (1977). Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) did not violate constitutional requirement of scienter. Northcutt v. State, 157 Ga. App. 762, 278 S.E.2d 702, 1981 Ga. App. LEXIS 2007 (1981). When charge on constructive knowledge was in exact language of O.C.G.A. § 16-12-80 and did not place greater burden on appellant than knowledge of contents of materials appellant distributed in prosecution for distribution of obscene materials, the charge did not violate constitutional scienter requirement. Mason v. State, 159 Ga. App. 755, 285 S.E.2d 91, 1981 Ga. App. LEXIS 2742 (1981). Constructive knowledge, as defined in former Code 1933, § 26-2101(a) (see now O.C.G.A. § 16-12-80(a)), did not violate constitutional standards. Wood v. State, 144 Ga. App. 236, 240 S.E.2d 743, 1977 Ga. App. LEXIS 2652 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 265, 58 L. Ed. 2d 247, 1978 U.S. LEXIS 3397 (1978). Charge on constructive knowledge does not violate constitutional require-

ments of scienter. Paperback Book Mart, Inc. v. State, 148 Ga. App. 377, 251 S.E.2d 396, 1978 Ga. App. LEXIS 3165 (1978). Constitutional attack upon former Code 1933, § 26-2101 that constructive knowledge as found therein was a violation of constitutional requirements as to scienter was not meritorious. Showcase Cinemas, Inc. v. State, 156 Ga. App. 225, 274 S.E.2d 578, 1980 Ga. App. LEXIS 3008 (1980), cert. dismissed, 451 U.S. 934, 101 S. Ct. 2037, 68 L. Ed. 2d 343, 1981 U.S. LEXIS 1817 (1981). Preseizure Adversary Hearing Absence of constitutionally sufficient warrant. - Arrest and seizure of obscene materials without constitutionally sufficient warrant is unreasonable and evidence is not admissible. Wood v. State, 144 Ga. App. 236, 240 S.E.2d 743, 1977 Ga. App. LEXIS 2652 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 265, 58 L. Ed. 2d 247, 1978 U.S. LEXIS 3397 (1978). Requiring adversary hearing before seizure of materials relates merely to competency of evidence in obscenity prosecution and does not bar prosecution based on other legally obtained evidence. Matter seized illegally, i.e., without a hearing, must be returned. Gable v. Jenkins, 309 F. Supp. 998, 1969 U.S. Dist. LEXIS 13744 (D. Ga. 1969), aff’d, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595, 1970 U.S. LEXIS 2072 (1970). Prosecution or threat thereof before adversary determination of obscenity constitutes unconstitutional burden upon freedom of expression. Sokolic v. Ryan, 304 F. Supp. 213, 1969 U.S. Dist. LEXIS 12532 (S.D. Ga. 1969). Any criminal prosecution prior to adversary hearing is violative of U.S. Const., amend. 1. Sokolic v. Ryan, 304 F. Supp. 213, 1969 U.S. Dist. LEXIS 12532 (S.D. Ga. 1969). Unconstitutional system of prior restraint with respect to certain men’s magazines was engaged in by local law enforcement authorities where such authorities did not obtain warrant from neutral and detached magistrate based upon threshold determination of obscenity before making series of arrests of dealers

Preseizure Adversary Hearing (Cont’d) and distributors on charges that their dealings in such magazines violated obscenity laws. Penthouse Int’l, Ltd. v. McAuliffe, 436 F. Supp. 1241, 1977 U.S. Dist. LEXIS 14307 (N.D. Ga. 1977), aff’d in part and rev’d in part, 610 F.2d 1353, 1980 U.S. App. LEXIS 20758 (5th Cir. 1980). Unlawful warrantless arrest without seizure of materials does not constitute prior restraint. - There is no prior restraint of freedom of expression by any unlawful state-initiated or state-enforced restraint where a warrantless arrest is made but no obscene materials are seized. Wood v. State, 144 Ga. App. 236, 240 S.E.2d 743, 1977 Ga. App. LEXIS 2652 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 265, 58 L. Ed. 2d 247, 1978 U.S. LEXIS 3397 (1978). Adversary judicial hearing on question of obscenity is prerequisite to seizure of materials. - It is illegal for officers to seize a movie film unless and until there has been held a prior adversary judicial hearing upon question of obscenity. The Supreme Court has decided that lest the nonobscene and constitutionally protected be suppressed it is better that some judicial officer determine that challenged matter is obscene before its seizure. Gable v. Jenkins, 309 F. Supp. 998, 1969 U.S. Dist. LEXIS 13744 (D. Ga. 1969), aff’d, 397 U.S. 592, 90 S. Ct. 1351, 25 L. Ed. 2d 595, 1970 U.S. LEXIS 2072 (1970). One procedural protection afforded publications regardless of eventual evaluation or characterization of same is requirement that materials may not be seized prior to judicially conducted adversary proceeding in which same is found in fact to be obscene. Sokolic v. Ryan, 304 F. Supp. 213, 1969 U.S. Dist. LEXIS 12532 (S.D. Ga. 1969). Before a seizure of alleged obscene material can be made, an adversary hearing on question of its obscenity must first be had. Central Agency, Inc. v. Brown, 306 F. Supp. 502, 1969 U.S. Dist. LEXIS 8799 (N.D. Ga. 1969); Peachtree News Co. v. Slaton, 226 Ga. 471, 175 S.E.2d 539, 1970

Ga. LEXIS 567 (1970), aff’d, 401 U.S. 985, 91 S. Ct. 1220, 28 L. Ed. 2d 525, 1971 U.S. LEXIS 2559 (1971). Determination of obscenity is prerequisite to revocation of business license. - Just as there can be no massive seizure of allegedly obscene materials for destruction without a prior adversary type hearing and determination of obscenity, there can be no valid revocation of a business license for having exhibited an obscene film without such prior hearing and determination. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389, 1972 U.S. Dist. LEXIS 15272 (M.D. Ga. 1972), aff’d, 482 F.2d 280, 1973 U.S. App. LEXIS 8695 (5th Cir. 1973). Adversary hearing not required prior to instituting of criminal action as to purchased materials. Gornto v. McDougall, 336 F. Supp. 1372, 1972 U.S. Dist. LEXIS 15321 (S.D. Ga. 1972). Distinction between seizure of materials and purchase by prosecuting attorney. - There is a vast distinction in requiring an adversary hearing for a determination of obscenity before seizure of books, and requiring such hearing when books were not seized but were procured by purchase from dealer by prosecuting attorney and are in the prosecutor’s possession. Peachtree News Co. v. Slaton, 226 Ga. 471, 175 S.E.2d 539, 1970 Ga. LEXIS 567 (1970), aff’d, 401 U.S. 985, 91 S. Ct. 1220, 28 L. Ed. 2d 525, 1971 U.S. LEXIS 2559 (1971). Community Standard Material must substantially exceed limits of candor set by contemporary community standards. - U.S. Const., amend. 14 does not permit conviction on obscenity charges unless work complained of is found substantially to exceed limits of candor set by contemporary community standards. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 1980 Ga. App. LEXIS 1762, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3413 (1980). Court cannot rebuff all efforts to enlighten the jury as to community standards. - While a state is not precluded from regarding trier of fact as

OFFENSES/HEALTH & MORALS

the embodiment of community standards competent to judge a challenged work against those standards, it is not privileged to rebuff all efforts to enlighten or persuade the trier. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 1980 Ga. App. LEXIS 1762, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3413 (1980). Determination of community standards is not based merely upon what is appropriate for children. Dumas v. State, 131 Ga. App. 79, 205 S.E.2d 119, 1974 Ga. App. LEXIS 1336 (1974). Jurors judging contemporary community standards according to their own communities. - It is constitutionally permissible to permit juries to rely on understanding of community from which they came as to contemporary community standards, and states have considerable latitude in framing statutes under this element. A state may choose to define an obscenity offense in terms of contemporary community standards without further specification, or it may choose to define standards in more precise geographic terms. Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642, 1974 U.S. LEXIS 85 (1974). Jurors to consider evidence in light of standards of community. - Jurors represent average members of their own community and, as triers of fact are charged with responsibility of making determination of whether material is obscene, guided by evidence presented by their individual and collective awareness of standards and norms of their community. Gornto v. State, 227 Ga. 46, 178 S.E.2d 894, 1970 Ga. LEXIS 394 (1970), cert. denied, 402 U.S. 933, 91 S. Ct. 1525, 28 L. Ed. 2d 868, 1971 U.S. LEXIS 2325 (1971). Local community standard applied. - Standard to be applied is not what may or may not have been held to be obscene in other jurisdictions, but what is acceptable in local community. Gornto v. State, 227 Ga. 46, 178 S.E.2d 894, 1970 Ga. LEXIS 394 (1970), cert. denied, 402 U.S. 933, 91 S. Ct. 1525, 28 L. Ed. 2d 868, 1971 U.S. LEXIS 2325 (1971). Juries can consider state or local community standards in lieu of na-

tional standards. Jenkins v. State, 230 Ga. 726, 199 S.E.2d 183, 1973 Ga. LEXIS 1046 (1973), rev’d, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642, 1974 U.S. LEXIS 85 (1974). Community by which standards for obscenity are gauged is the State of Georgia rather than nation-wide community or any smaller unit of the state. Dumas v. State, 131 Ga. App. 79, 205 S.E.2d 119, 1974 Ga. App. LEXIS 1336 (1974). Specification of what “community” not required in instruction. - Trial court’s charge to jury to apply “community standards” in determining whether material was obscene, without specifying what “community” was proper. Lee v. State, 214 Ga. App. 164, 447 S.E.2d 323, 1994 Ga. App. LEXIS 820 (1994), cert. denied, No. S94C1831, 1994 Ga. LEXIS 1177 (Ga. Dec. 2, 1994). Use of word “approved” in course of defining phrase “community standards” is proper. 2150 Stewart Ave., Inc. v. State, 173 Ga. App. 407, 326 S.E.2d 579, 1985 Ga. App. LEXIS 1561 (1985). Definition of community standard for jury. - Instructing jury that “community standards” is defined in terms of what an average person in the community would approve of, as opposed to tolerate, does not constitute harmful or reversible error in prosecution for distributing obscene materials. 134 Baker St., Inc. v. State, 172 Ga. App. 738, 324 S.E.2d 575, 1984 Ga. App. LEXIS 3087 (1984). Use of accept in jury instructions. - In instructions on community standard, use of word “acceptance” rather than “tolerance” is not harmful error. Brown v. State, 156 Ga. App. 201, 274 S.E.2d 572, 1980 Ga. App. LEXIS 2999 (1980); Williams v. State, 157 Ga. App. 494, 277 S.E.2d 781, 1981 Ga. App. LEXIS 1880 (1981). Comparative Evidence Rationale behind admission of comparative evidence in an obscenity case is to allow defendant the opportunity to attempt to persuade trier of fact that challenged material does not exceed contemporary community standards, as rep-

Injunctive Relief

Comparative Evidence (Cont’d) resented by comparable material and against which challenged material is judged. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 1980 Ga. App. LEXIS 1762, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3413 (1980). Evidence of mere availability of similar materials is insufficient. - Evidence of mere availability of similar materials is not by itself sufficiently probative of community standards to be admissible in absence of proof that material enjoys a reasonable degree of community acceptance. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 1980 Ga. App. LEXIS 1762, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3413 (1980). Defendant must show reasonable degree of community acceptance. - Predicate for conclusion that disputed piece of material is acceptable under contemporary community standards, as shown by proffered other matter already in unquestioned circulation, must be that the two types of matter are similar, and as another part of defendants foundation defendant must show a reasonable degree of community acceptance of works like defendant’s own. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 1980 Ga. App. LEXIS 1762, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3413 (1980). Sales figures may be used to satisfy community acceptance foundational requirement. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 1980 Ga. App. LEXIS 1762, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3413 (1980). Comparative evidence must be proffered as a whole to satisfy defendant’s burden of demonstrating that comparable evidence is similar to defendant’s challenged material. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 1980 Ga. App. LEXIS 1762, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3413 (1980).

Threat to property interest permits injunction against investigation and prosecution. - Motel owner’s showing that the owner depended upon income from movie rentals in making the decision to purchase the motel and in sustaining the business established a sufficient threat to a property interest to permit an injunction of an investigation and any prosecution under the state obscenity statute. Majmundar v. Veline, 256 Ga. 8, 342 S.E.2d 682, 1986 Ga. LEXIS 682 (1986). Exhibition of film falling within definition of former Code 1933, § 262101 (see now O.C.G.A. § 16-12-80) can be enjoined. S.S.W. Corp. v. Slaton, 231 Ga. 734, 204 S.E.2d 155, 1974 Ga. LEXIS 1208 (1974). Exhibition of obscene materials may be enjoined in civil proceeding. - Former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) defined a criminal offense, but the exhibition of materials found to be obscene as defined by that section may be enjoined in a civil proceeding under Georgia case law. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446, 1973 U.S. LEXIS 19 (1973). Temporary injunction hearings to restrain film showings need not follow procedures of final hearings determining rights. - Mere temporary injunction hearings to determine whether a temporary injunction should be issued restraining showing of a film need not be surrounded with formalities of procedure that must attend hearings finally determining rights. Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464, 1971 Ga. LEXIS 815, cert. denied, 404 U.S. 1003, 92 S. Ct. 560, 30 L. Ed. 2d 557, 1971 U.S. LEXIS 212 (1971). Interlocutory judicial determination of obscenity not equivalent of probable cause that material may be obscene. S.S.W. Corp. v. Slaton, 231 Ga. 734, 204 S.E.2d 155, 1974 Ga. LEXIS 1208 (1974). Prompt determination of free speech issues. - Interlocutory judicial restraint with respect to a claim under

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U.S. Const., amend. 1 should be followed as promptly as is practicable by final judicial determination of such constitutional issues. S.S.W. Corp. v. Slaton, 231 Ga. 734, 204 S.E.2d 155, 1974 Ga. LEXIS 1208 (1974). Temporary injunctions should be limited. - When, after viewing film, superior court judge finds probable cause that film is obscene and enjoins defendant from exhibiting or showing film in public within jurisdiction of court, injunction feature of order should be limited so as to provide that it shall continue only “until further order of court.” Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464, 1971 Ga. LEXIS 815, cert. denied, 404 U.S. 1003, 92 S. Ct. 560, 30 L. Ed. 2d 557, 1971 U.S. LEXIS 212 (1971). Granting continuance on temporary injunction hearings is within judge’s discretion. - Whether to grant continuance on hearing to determine whether temporary injunction should be issued restraining the showing of a film is within trial judge’s sound legal discretion, and in absence of clear showing that the judge abused judicial discretion in this regard it will not be controlled. Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464, 1971 Ga. LEXIS 815, cert. denied, 404 U.S. 1003, 92 S. Ct. 560, 30 L. Ed. 2d 557, 1971 U.S. LEXIS 212 (1971). Injunction impermissible to suppress distribution of literature on basis of previous publications. - Injunction is impermissible and unconstitutional when the injunction operates not to redress alleged private wrongs but to suppress, on basis of previous publications, distributions of literature of any kind. Sanders v. State, 231 Ga. 608, 203 S.E.2d 153, 1974 Ga. LEXIS 1160 (1974). Application 1. In General Particular issue of a self-styled “magazine for men” fell within O.C.G.A. § 16-12-80 in that: (1) it contained a large number of photographs of women in various degrees of nudity, depicting sexual conduct and lewd exhibition in a patently offensive way; (2)

the magazine’s overwhelming effect, obviously planned, was to create sexual excitement and stimulation, predominantly appealing, as a whole, to the prurient interest, even though there were items that concerned topics other than sex; and (3) the magazine, taken as a whole, had no serious literary, artistic, political, or scientific value, although there may have been some slight literary, artistic, and political value to a small number of items. Penthouse Int’l, Ltd. v. Webb, 594 F. Supp. 1186, 1984 U.S. Dist. LEXIS 23591 (N.D. Ga. 1984). Evidence was sufficient to justify conviction of possession of obscene material with intent to disseminate where defendant offered to “take over” an adult bookstore after clerk was arrested for selling obscene magazine, and the defendant was employed by the store in a supervisory capacity. Kervin v. State, 172 Ga. App. 478, 323 S.E.2d 643, 1984 Ga. App. LEXIS 3065 (1984). Exhibition of obscene film to consenting adults is a crime. Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712, 1971 Ga. LEXIS 710, cert. denied, 404 U.S. 950, 92 S. Ct. 281, 30 L. Ed. 2d 267, 1971 U.S. LEXIS 659 (1971). Obscene, pornographic films not constitutionally immune from state regulation because exhibited for consenting adults only. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446, 1973 U.S. LEXIS 19 (1973). Juries do not have unbridled discretion in determining what is patently offensive. Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642, 1974 U.S. LEXIS 85 (1974). An otherwise obscene film cannot be constitutionally salvaged by adding to it a vague moral which is superimposed on predominant theme of film which is an appeal to a prurient interest in sex. Dyke v. State, 232 Ga. 817, 209 S.E.2d 166, 1974 Ga. LEXIS 1098 (1974), cert. denied, 421 U.S. 952, 95 S. Ct. 1687, 44 L. Ed. 2d 106, 1975 U.S. LEXIS 1521 (1975). Distinction between act involving exhibition of genitals that is lewd and one that is not. - See Penthouse Int’l, Ltd. v. McAuliffe, 610 F.2d 1353, 1980 U.S.

Application (Cont’d) 1. In General (Cont’d) App. LEXIS 20758 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131, 1980 U.S. LEXIS 2411 (1980). Devices prohibited under subsection (c) subject to seizure without warrant. - When sexually oriented materials offered for sale and seized were obviously for primary purpose of stimulation of human genital organs in violation of subsection (c) and the materials were in plain view to officers in a lawful position to view and see the materials, no warrant was necessary to make a lawful seizure. Ball v. State, 149 Ga. App. 270, 253 S.E.2d 886, 1979 Ga. App. LEXIS 1814 (1979). Officer cannot make initial determination concerning obscenity of publication. - Ability to conduct warrantless arrest for offense committed in officer’s presence contemplates officer’s ability to determine that an offense has actually been committed; officer was incorrect in the officer’s belief that the officer or the officer’s agents may properly make initial determination concerning obscenity of a publication and that the officer may make a warrantless arrest if the officer determines that the subject matter of a publication is obscene. Penthouse Int’l, Ltd. v. McAuliffe, 610 F.2d 1353, 1980 U.S. App. LEXIS 20758 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131, 1980 U.S. LEXIS 2411 (1980). Additional charge regarding “tendency to excite lustful thoughts.” - In view of trial court’s charge instructing jury that in order for the jury to find materials in question obscene the jury must first determine that magazines met criteria set forth in subsection (b), the court’s additional instruction that material “which appeals to prurient interest is material which has a tendency to excite lustful thoughts,” even if error, would not be harmful. Bohin v. State, 156 Ga. App. 206, 274 S.E.2d 592, 1980 Ga. App. LEXIS 3001 (1980). When crime of distributing obscene materials is completed. - Crime of distributing obscene materials is

completed when a person intentionally distributes any material classified as obscene, knowing the obscene nature of that material. Trotti v. State, 144 Ga. App. 648, 242 S.E.2d 270, 1978 Ga. App. LEXIS 1723, cert. denied, 439 U.S. 1051, 99 S. Ct. 733, 58 L. Ed. 2d 712, 1978 U.S. LEXIS 4282 (1978). Defendant’s knowledge is question for jury. - Whether or not the defendant has “knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material” is a question generally for the jury. Day v. State, 190 Ga. App. 580, 379 S.E.2d 548, 1989 Ga. App. LEXIS 307, cert. vacated on other grounds, 259 Ga. 454, 385 S.E.2d 412, 1989 Ga. LEXIS 336 (1989). Extent of knowledge necessary under former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80) was knowledge of facts which would put a reasonable and prudent man on notice as to suspect nature of material. Hess v. State, 146 Ga. App. 874, 247 S.E.2d 546, 1978 Ga. App. LEXIS 2578 (1978). Applicable test is not whether accused actually knew devices were obscene, but whether the accused has knowledge of facts which would put a reasonable and prudent man on notice as to suspect nature of the material. Underwood v. State, 144 Ga. App. 684, 242 S.E.2d 339, 1978 Ga. App. LEXIS 1748 (1978); Dorsey v. State, 188 Ga. App. 695, 374 S.E.2d 102, 1988 Ga. App. LEXIS 1178 (1988). Charge on constructive knowledge not burden shifting where magazine cover makes contents obvious. - In trial of case involving distribution of obscene material, charge by court on constructive knowledge is not subject to complaint that the charge shifts burden of proof and relieves the state of proving every essential element of a crime in violation of U.S. Const., amends. 1, 14, since the front cover of the magazine would put anyone on notice as to the magazine’s contents. Spry v. State, 156 Ga. App. 74, 274 S.E.2d 2, 1980 Ga. App. LEXIS 2884 (1980). Evidence to warranting “Ginzburg pandering instruction.” - Government need not offer extensive evidence of methods of production,

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editorial goals, if any, or methods of operation in order for evidence to be sufficient to trigger the “Ginzburg pandering instruction.” Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82, 1980 Ga. App. LEXIS 3130 (1980). Federal court will not interfere with pending state case by requiring release of contraband. - When allegedly obscene films and projectors are seized as evidence of a violation of former Code 1933, § 26-2101 (see now O.C.G.A. § 16-12-80), and case was pending in state courts, federal courts will not interfere with pending case by requiring release of contraband as an unconstitutional seizure. G & E Bus. Servs., Inc. v. McAuliffe, 480 F. Supp. 239, 1979 U.S. Dist. LEXIS 8418 (N.D. Ga. 1979). Expert testimony where materials themselves are available for inspection. - It is no longer necessary in cases where alleged obscene materials themselves are available for inspection by finder of fact that expert testimony be produced on behalf of prosecution. Dumas v. State, 131 Ga. App. 79, 205 S.E.2d 119, 1974 Ga. App. LEXIS 1336 (1974). 2. Considerations in Determining Obscenity Test for obscenity is whether or not to average person, applying contemporary community standards, dominant theme of material taken as a whole appeals to prurient interest. Feldschneider v. State, 127 Ga. App. 745, 195 S.E.2d 184, 1972 Ga. App. LEXIS 1012 (1972). Three tests must be satisfied before written materials can be held to be obscene; these are: (1) that dominant theme of material taken as a whole appeals to prurient interest in sex; (2) that material is patently offensive because it affronts contemporary community standards relating to description or representations of sexual matters; and (3) that the material is utterly without redeeming social value. Feldschneider v. State, 127 Ga. App. 745, 195 S.E.2d 184, 1972 Ga. App. LEXIS 1012 (1972); Gornto v. McDougall, 336 F. Supp. 1372, 1972 U.S. Dist. LEXIS 15321 (S.D. Ga. 1972). Obscene material is material which deals with sex in a manner appealing

to prurient interest. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82, 1980 Ga. App. LEXIS 3130 (1980). “Abnormal” interest in sex is more inclusive than “prurient” interest in sex. - In prosecution for distributing obscene materials, trial court’s instruction equating prurient interest with abnormal interest in sex did not present appropriate standard for review of allegedly obscene materials, in that abnormal interest is more inclusive than prurient interest. Northcutt v. State, 157 Ga. App. 762, 278 S.E.2d 702, 1981 Ga. App. LEXIS 2007 (1981). Material which appeals to prurient interest is material having a tendency to excite lustful thoughts. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82, 1980 Ga. App. LEXIS 3130 (1980). But see Bohin v. State, 156 Ga. App. 206, 274 S.E.2d 592, 1980 Ga. App. LEXIS 3001 (1980). Publications to be viewed as a whole. - County district attorneys must consider magazines and other printed material as a whole. Penthouse Int’l, Ltd. v. McAuliffe, 454 F. Supp. 289, 1978 U.S. Dist. LEXIS 16732 (N.D. Ga. 1978). In determining obscenity or nonobscenity of magazines, they must be taken as a whole. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 1980 Ga. App. LEXIS 1762, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3413 (1980). Nudity alone is not enough to make material legally obscene. Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642, 1974 U.S. LEXIS 85 (1974). Depiction of nudity and sex is not per se obscene. Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, 1980 Ga. App. LEXIS 1762, cert. denied, 449 U.S. 888, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3413 (1980). When magazine depicted group sexual activity, “prurient interest” standard applied without any other evidence. - In prosecution for distributing obscene material, when the magazine depicted two women and a man engaging in sexual activity, the “prurient interest” standard did not have to be considered with regard to its appeal to a

Application (Cont’d) 2. Considerations in Determining Obscenity (Cont’d) “bizarre deviant group,” and the jury could adequately apply the standard without any evidence designed to guide the jury in applying the standard. 134 Baker St., Inc. v. State, 172 Ga. App. 738, 324 S.E.2d 575, 1984 Ga. App. LEXIS 3087 (1984). Jury may consider setting in which publication was presented to public, and view publications against a background of commercial exploitation of erotica solely for sake of their prurient appeal. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82, 1980 Ga. App. LEXIS 3130 (1980). Instruction evaluating societal worth of work. - Trial court was not required to charge the jury as to the proper procedure for evaluating the societal value of a work beyond charging the language contained in O.C.G.A. § 16-12-80(b). Lee v. State, 214 Ga. App. 164, 447 S.E.2d 323, 1994 Ga. App. LEXIS 820 (1994), cert. denied, No. S94C1831, 1994 Ga. LEXIS 1177 (Ga. Dec. 2, 1994). Methods of creation, promotion, or dissemination are relevant in determining whether materials are obscene. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82, 1980 Ga. App. LEXIS 3130 (1980). Evidence of pandering to prurient interest in creation, promotion or dissemination of material is relevant in determining whether the material is obscene. Showcase Cinemas, Inc. v. State, 156 Ga. App. 225, 274 S.E.2d 578, 1980 Ga. App. LEXIS 3008 (1980), cert. dismissed, 451 U.S. 934, 101 S. Ct. 2037, 68 L. Ed. 2d 343, 1981 U.S. LEXIS 1817 (1981). Jury can find material obscene if the jury finds the material was pandered, that is, the distribution was a “commercial exploitation of erotica solely for the sake of their prurient appeal”. This phrase has come to be known as the “Ginzburg pandering instruction”. Whisenhunt v. State, 156 Ga. App. 583,

275 S.E.2d 82, 1980 Ga. App. LEXIS 3130 (1980). Method of commercial dissemination may warrant finding of obscenity. - In a close case where there is a valid argument of the existence of some slight social value of a literary, historical, artistic, or technical nature, a finding of obscenity will not be made even though the book is found to possess requisite prurient appeal and to be patently offensive unless there is also clear evidence that material has passed threshold of permitted exposure in that its commercial dissemination amounts to pandering, or it is made available to juveniles, or it becomes impossible for unwilling individual to avoid exposure. Fishman v. State, 128 Ga. App. 505, 197 S.E.2d 467, 1973 Ga. App. LEXIS 1532 (1973). Expert testimony is not necessary to prove obscenity of sexual devices; nevertheless, the Court of Appeals has recognized the use of witnesses to testify that certain devices are designed primarily for stimulation of genital organs. Williams v. State, 157 Ga. App. 494, 277 S.E.2d 781, 1981 Ga. App. LEXIS 1880 (1981). 3. Determination of Number of Offenses Committed Single sale of two obscene magazines as one offense. - Single sale of two obscene magazines made by one seller to one buyer in one transaction at same time and place is only one offense. Adult Bookmart, Inc. v. State, 152 Ga. App. 838, 264 S.E.2d 273, 1979 Ga. App. LEXIS 3100 (1979), cert. denied, 449 U.S. 886, 101 S. Ct. 240, 66 L. Ed. 2d 111, 1980 U.S. LEXIS 3396 (1980). Each showing of obscene film constitutes a separate offense. - Double jeopardy rights are not denied when defendant is convicted of multiple offenses for numerous showings of an obscene film. A separate offense occurs each time the obscene film is shown. Dyke v. State, 232 Ga. 817, 209 S.E.2d 166, 1974 Ga. LEXIS 1098 (1974), cert. denied, 421

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U.S. 952, 95 S. Ct. 1687, 44 L. Ed. 2d 106, 1975 U.S. LEXIS 1521 (1975). Each showing of each film in coin-operated booths constitutes separate violation. - When allegedly obscene films seized by investigators were shown either in separate booths or two films to a booth, the booths were coin-operated and required that a number of coins be deposited before full length of a particular film could be viewed, each showing of each film constituted a separate and distinct violation. G & E Bus. Servs., Inc. v. State, 156 Ga. App. 391, 274 S.E.2d 644, 1980 Ga. App. LEXIS 2994 (1980). Single, uninterrupted, continuous showing of multiple films as part of single exhibition constitutes one offense. Maxwell v. State, 152 Ga. App. 776, 264 S.E.2d 254, 1979 Ga. App. LEXIS 3082 (1979), cert. denied, 449 U.S. 889, 101 S. Ct. 245, 66 L. Ed. 2d 114, 1980 U.S. LEXIS 3417 (1980); G & E Bus. Servs., Inc. v. State, 156 Ga. App. 391, 274 S.E.2d 644, 1980 Ga. App. LEXIS 2994 (1980). Continuing sales on intermittent basis constitute single scheme. - When purpose and intent of entire

operation is the continuing sale of pornographic material, whether sales are made on a minute-by-minute basis, a day-by-day basis, or on an intermittent basis, this type of operation is similar to a “fence” who deals in trafficking of stolen goods. Such receiver and seller of stolen goods deals with whomever and wherever the opportunity presents itself, on an intermittent basis, to carry out a singular purpose and plan. These continuing sales, on an intermittent basis, constitute a single scheme or plan for purpose of single prosecution. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82, 1980 Ga. App. LEXIS 3130 (1980). Sales of two magazines at different times on same date to same buyer constitutes two offenses. Stancil v. State, 155 Ga. App. 731, 272 S.E.2d 511, 1980 Ga. App. LEXIS 2765 (1980), cert. denied, 451 U.S. 975, 101 S. Ct. 2058, 68 L. Ed. 2d 357, 1981 U.S. LEXIS 2004 (1981).

RESEARCH REFERENCES Am. Jur. 2d. 50 Am. Jur. 2d, Lewdness, Indecency, and Obscenity, §§ 4 et seq., 33. C.J.S. 67 C.J.S., Obscenity, § 1 et seq. ALR. Exclusion from evidence of parts of a publication, or mail matter, other than those charged to be obscene, or oral testimony relating to purpose or effect of publication as a whole, 69 A.L.R. 644. Constitutional guaranties of freedom of speech and of the press as applied to

statutes and ordinances providing for licensing or otherwise regulating distribution of printed matter or solicitation of subscriptions therefor, 127 A.L.R. 962. Modern concept of obscenity, 5 A.L.R.3d 1158. Admissibility of evidence of public-opinion polls or surveys in obscenity prosecutions on issue whether materials in question are obscene, 59 A.L.R.5th 749. Constitutionality of state statutes banning distribution of sexual devices, 94 A.L.R.5th 497.