Jenkins v. Georgia

Appellant
Billy Jenkins
Appellee
State of Georgia
Appellant's Claim
That he had been wrongfully convicted under a Georgia state obscenity statutethat had made it illegal for him to show the film Carnal Knowledge.
Chief Lawyer for Appellant
Louis Nizer
Chief Lawyer for Appellee
Tony H. Hight
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, William O. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., William H. Rehnquist (writing for the Court), Potter Stewart, Byron R. White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
24 June 1974
Decision
That the film Carnal Knowledge was not obscene under the constitutional standards that the Court had recently announced in Miller v. California, and that Jenkins' conviction should be reversed.
Significance
Chief Justice Rehnquist wanted to establish a consistent standard for obscenity, so that the Supreme Court would not have to review so many individual cases; however, Jenkins v. Georgia made it clear that the Court had not yet discovered such a standard. Some of the justices, who were critical of allanti-obscenity laws, saw this case as proof that the Court would never be able to set forth a consistent standard.
One of the most important rights set out in the U.S. Constitution is freedomof speech. This right is guaranteed by the First Amendment, which says, "Congress shall make no law . . . abridging the freedom of speech . . . " However,people interpret the First Amendment in different ways. Some people believethat "no law" means just that--no law. Others believe that some kinds of speech, or "expression," can be limited. For example, they believe that the FirstAmendment allows laws against obscenity. Jenkins v. Georgia illustrates how difficult it is to create laws that will prevent obscenity while stillpreserving the First Amendment.
"I Know It When I See It"
For many years, the ruling definition on obscenity was summed up in a famouscomment made by Justice Stewart in 1964. Stewart explained that while obscenity was difficult to define precisely, "I know it when I see it."
The problem was that for Stewart or any other Supreme Court justice to see it, the obscene book, film, or photograph had to become the subject of a courtcase in which someone protested a local obscenity law and took his or her protest to the Supreme Court. This meant that people whose work was not necessarily obscene--serious filmmakers, writers, or photographers who wanted to dealwith sexuality or to portray nudity--felt a "chilling effect." This is whenfearing to be charged with obscenity, they might censor themselves and thereby lose their First Amendment rights to free expression. Moreover, commercialfilmmakers and other artists who wanted to stay within the law did not exactly know where to draw the line.
Stewart's decision did at least define what was not obscene: any work that had "redeeming social value." His decision held sway for the liberal Warren Court of the 1960s. Then, in 1973, the more conservative Burger Court offered asterner ruling. In the landmark decision Miller v. California, the Court changed the standards: now, rather than "redeeming social importance," a work had to have "literary, artistic, political or scientific value." Juries were encouraged to find obscene any work that would be considered "patently offensive" according to "contemporary community standards."
An "Obscenely Boring" Film
Miller gave a few more explicit guidelines for obscenity: "representations or descriptions or ultimate sexual acts, normal or perverted, actual orsimulated," and "representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." The goal of Miller, asJustice Rehnquist explained in Jenkins v. Georgia, was to make questions about what was obscene "essentially questions of fact"--not questions ofopinion.
Meanwhile, across the United States, people continued to be convicted of obscenity charges. There was enough uncertainty about exactly what was consideredobscene that many of these cases were appealed to higher and higher courts.Eventually, one of those cases made it to the U.S. Supreme Court.
On 13 January 1972, theater manager Billy Jenkins was showing a film called Carnal Knowledge in a little movie house in Albany, Georgia. While thefilm was playing, local law-enforcement officers seized it and used it to charge Jenkins with distributing obscene material. Jenkins was fined $750 and sentenced to 12 months probation.
Carnal Knowledge was a mainstream Hollywood film that had already played in 29 towns in Georgia. The movie was directed by Mike Nichols, written byJules Feiffer, and starred Jack Nicholson, Art Garfunkel, Candice Bergen, and Ann-Margret. The film had made several "Ten Best" lists when it came out in1971, and Ann-Margret had even been nominated for an Oscar. The movie was aportrait of two men who meet at college in the 1950s and continue as friendsand romantic rivals throughout the liberated 1960s, each engaging in more andmore sexual encounters that become less and less satisfying.
In his majority opinion for Jenkins, Rehnquist made it clear that themovie could in no way be viewed as obscene.

While the subject matter of the picture is, in a broader sense, sex, and there are scenes in whichsexual conduct including "the ultimate sexual act" is to be understood to betaking place, the camera does not focus on the bodies of the actors at suchtimes. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudityalone is not enough to make material legally obscene under the Millerstandards

At the first screening of the film for the nine justices, Justice White put it more succinctly. "The only thing obscene about thismovie is that it is obscenely boring," he complained.
Defining Obscenity
Clearly, the Court had no choice but to overturn Jenkins' conviction. "It would be a serious misreading of Miller," Rehnquist warned, "to concludethat juries have unbridled discretion in determining what is `patently offensive' . . . "
Justice Brennan, who had long objected to obscenity laws on the grounds thatthey almost all violated the First Amendment, added an opinion to the case that was basically a way of saying, "I told you so." Brennan pointed out that Miller, which was supposed to render obscenity questions into mere questions of fact, had obviously failed. Clearly, local juries would give their own opinions--as they had done in finding Carnal Knowledge obscene--andthen the Supreme Court would have to come along and correct these problematic, perhaps even absurd, decisions. Thus, wrote Brennan, " . . . the Court's new formulation does not extricate us from the mire of case-by-case determinations of obscenity."
Reactions to the case from movie-makers was likewise mixed. "It appears clearthat the freedom of the filmmaker to tell an honest story without hard-corepornography has been upheld," said Jack Valenti, president of the Motion Picture Association. But Peter M. Fishbein, attorney for the National Associationof Theater Owners, objected. "There's a long spectrum from Carnal Knowledge to a stag movie, and we are disappointed that the Supreme Court hasn'tclarified standards for the area in between."
In determining the final results of Jenkins v. Georgia, it is helpfulto look at the amicus curiae (friend of the court) briefs that were filed in support of each side. Those urging that the Georgia obscenity law be struck down included the National Association of Theatre Owners, the Adult Film Association of America, the Directors Guild of America, the American Library Association, the American Booksellers Association, the Council for Periodical Distributors Association, the Association of American Publishers, and theAuthors League of America. The one brief supporting the obscenity law was filed by Charles H. Keating, Jr., the anti-pornography crusader who later targeted Larry Flynt and Hustler magazine, and who later still was involvedin the savings and loan scandal.
Related Cases

• Roth v. United States, 354 U.S. 476 (1957).
  
• Kingsley Pictures Corp. v. Regents of the University of the State of New York, 360 U.S. 684 (1959).
  
• Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962).
  
• Bantam Books Inc. v. Sullivan, 372 U.S. 58 (1963).
  
• Jacobellis v. Ohio, 378 U.S. 184 (1964).
  
• Miller v. California, 413 U.S. 15 (1973).

Friend of the Court
Amicus curiae is the Latin translation for the phrase "friend of the court." An Amicus curiae is a private or public individual or organization with a strong interest or strong viewpoint on a subject before a court. An Amicus curiae is not a party to the action or lawsuit, but acts as an interested third party calling the court's attention to some matter of thelaw which is in doubt or which might otherwise escape the court's attention.
An amicus curiae files a brief with consent of the other litigants (participants in the lawsuit), with permission of the court, or at the request of the court. Briefs are commonly filed in cases of broad and wide ranging matters of interest and controversy.
The Supreme Court frequently requests the U.S. Solicitor General, appointed by the president and whose office represents the position of the federal government, to submit briefs. Special interest groups also file thousands of briefs yearly to urge a particular result on behalf of third parties who may be affected by the court's decision. Similarly, state's attorney generals or legislators also regularly file briefs expressing a state's views on an issue.
Sources
Witt, Elder, editor. The Supreme Court A to Z. CQ's Encyclopedia of American Government. Washington, DC: Congressional Quarterly, Inc., 1993.
Banned Films
On 14 April 1894, Thomas Edison put on the first-ever public demonstration ofhis kinetoscope, an early motion-picture viewing device. Two weeks later, on28 April, an Atlantic City protest against a peep show called Dolorita inthe Passion Dance became the first attempt to ban a motion picture. Since then, movies and morality have often been at odds with one another.
In 1913, Ohio became the first state to attempt a ban on a film, and two years later the U.S. Supreme Court upheld local censorship in Mutual Film Corporation v. Industrial Commission of Ohio.
The United States, unlike most other countries, has no system of national censorship; rather, since the 1930s Hollywood, through the Motion Picture Producers and Distributors Association (later renamed the Motion Picture Association of America, or MPAA) has been self-regulating. By the early 1960s, however,the old guidelines had broken down, and in response to growing concerns oversex and violence in films, MPAA joined with associations representing theatre owners and film distributors to establish the Classification and Rating Administration (CARA). The latter reviews films and gives them ratings that range from G, meaning that they are suitable for general audiences of all ages, to X, films suitable only for persons 17 years of age or older.
Sources
Green, Jonathon. The Encyclopedia of Censorship. New York: Facts on File, 1990.