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SEWELL v. GEORGIA

April 24, 1978

SEWELL
v.
GEORGIA



Reported below: 238 Ga. 495, 233 S.E. 2d 187.

[ 435 U.S. Page 982]

Appeal from Sup. Ct. Ga. dismissed for want of substantial federal question.

Mr. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.

Appellant, William M. Sewell, appeals from a judgment of the Supreme Court of Georgia which affirmed his conviction

[ 435 U.S. Page 983]

     on a one-count accusation framed under the Georgia obscenity statute, Ga. Code § 26-2101 (1975). In July 1975, a police officer bought a magazine, Hot and Sultry, and a device said to be an "artificial vagina," from appellant, an employee of the Stewart Avenue Adult Book Store. Shortly after this sale, the officer, joined by two others, entered the store, arrested appellant, and seized various vibrators, rubber devices shaped like penises, and other items alleged to be devices for sexual stimulation. After attempting unsuccessfully to have the seized material suppressed, appellant was convicted by a jury of selling the magazine and artificial vagina and of possessing the other material and was sentenced to 12 months in jail and a fine of $4,000.

 Georgia Code § 26-2101 (a) (1975) provides:

"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 (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

[ 435 U.S. Page 984]

     obscenity of Hot and Sultry under the standards set out in §§ 26-2101 (a) and 26-2101 (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 Statement 3. Second, he argues that there is no rational basis for § 26-2101 (c) and, in addition, that it is unconstitutionally vague. Jurisdictional Statement 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 ...


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