Jenkins v. Georgia

United States Supreme Court

418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed.2d 642 (1974)

Jenkins, the manager of a movie theater in Albany, Georgia, was arrested after his theater showed the film Carnal Knowledge. After a trial in which a jury viewed the allegedly obscene film, Jenkins was convicted of “distributing obscene material” under the Georgia Penal Code. He was fined $750 and sentenced to one year on probation. On appeal, the Georgia Supreme Court upheld the conviction and sentence.

Mr. Justice Rehnquist delivered the opinion of the Court.

... There is little to be found in the record about the film “Carnal Knowledge” other than the film itself. 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. [Jack] 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.”

The appellee [the state of Georgia] contends essentially that under Miller [v. California] the obscenity ... of the film “Carnal Knowledge” was a question for the jury, and that the jury, having resolved the question against appellant [Jenkins], and there being some evidence to support its findings, the judgment of conviction should be affirmed. … 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 “essential questions of fact.” ... ... We held in Paris Adult Theater I v. Slaton ... (1973), decided on the same day, that expert testimony as to obscenity is not necessary when the films at issue are themselves placed in evidence... .

But all of this does not lead us to agree with the Supreme Court of Georgia’s apparent conclusion that the jury’s verdict against appellant virtually precluded all further appellate review of appellant’s assertion that his exhibition of the film was protected by the First and Fourteenth Amendments. Even though questions of appeal to the “prurient interest” or of patent offensiveness are “essentially questions of fact,” it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is “patently offensive.” Not only did we there say that “the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,” ... but we made it plain that under that holding “no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict o r describe patently offensive ‘hard core’ sexual conduct... .” ...

We also took pains in Miller to “give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced,” that is, the requirement of patent offensiveness. ... These examples included “representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” ... While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant’s depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty.

Our own viewing of the film satisfies us that “Carnal Knowledge” could not be found under the Miller standards to depict sexual conduct in a patently offensive way. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the “patently offensive” element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including “ultimate sexual acts” is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors’ genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.

Appellant’s showing of the film “Carnal Knowledge” is simply not the “public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain” which we said was punishable in Miller. ... We hold that the film could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene. No other basis appearing in the record upon which the judgment of conviction can be sustained, we reverse the judgment of the Supreme Court of Georgia.

Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join, concurring in the result.

... In order to make the review mandated by Miller, the Court was required to screen the film “Carnal Knowledge” and make an independent determination. … Following that review, the Court holds that “Carnal Knowledge” “could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene.” ...

Thus, it is clear that as long as the Miller test remains in effect “one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so.” ... Because of the attendant uncertainty of such a process and its inevitable institutional stress upon the judiciary, I continue to adhere to my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” ... It is clear that, tested by that constitutional standard, the Georgia obscenity statutes under which appellant Jenkins was convicted are constitutionally overbroad and therefore facially invalid. I therefore concur in the result in the Court’s reversal of Jenkins’ conviction.