Ballew v. Georgia

Claude Davis Ballew was the manager of the Paris Adult Theatre at 320 Peachtree Street in Atlanta, Georgia, on 9 November 1973, when two men appeared at his theatre to purchase tickets. The movie they were going to see was Behind the Green Door, a pornographic film, and the men were investigators from the Fulton County Solicitor General's Office. In order to let them in to the theatre, Ballew, as manager, had to push a button to allow them access. Following their viewing, they obtained a warrant for the seizure of the film. Later they returned to the theatre, watched the movie a second time, seized it, and arrested both Ballew and the cashier. On 26 November the investigators came back, watched the movie a third time, and secured a second warrant. The next day, they saw Green Door a fourth time and seized a second copy of the film.

Some ten months later, on 14 September 1974, Ballew was charged on two misdemeanor counts for

distributing obscene materials in violation of Georgia Code Section 26-2101 in that the said accused did, knowing the obscene nature thereof, exhibit a motion picture film entitled `Behind the Green Door' that contained obscene and indecent scenes . . .

Ballew was brought to trial in the Criminal Court of Fulton County before a jury of five persons.

After the swearing in of the jury, however, Ballew moved that the court impanel a jury of 12, as was the custom under common law. The rules of that particular court under a variety of Georgia statutes, however, allowed it to try misdemeanor cases with juries of five. Ballew's counsel contended that since this was an obscenity trial, a jury of just five members was inadequate to assess the community's standards with regard to its definition of indecency. Furthermore, under the guarantees of trial by jury in the Sixth Amendment, and of due process of law in the Fourteenth, Ballew's counsel held that he should be allowed a jury of at least six members.

The judge overruled the motion, and the trial proceeded with the five-member panel. After 38 minutes of deliberation, they found Ballew guilty on both counts. For each of the two counts, he was sentenced to one year in jail and a fine of $1,000. The sentences were to run concurrently and the incarceration was to be suspended upon payment of the fine. At a later hearing, the court denied an amended motion for retrial.

Ballew took the case to the court of appeals, who rejected his claims. Like the Fulton County investigators before them, the judges, too, subjected the film to a thorough viewing and pronounced it "hard-core pornography" that was "obscene as a matter of constitutional law and fact." This ruling supported the conclusion of the jury that Ballew possessed the necessary scienter, or criminal intent, to be convicted. As manager of the Paris Adult Theatre, he had, among other activities, advertised the movie, sold tickets, and pressed the button to let customers in to the viewing area. As for the issue of the five-person jury, the court noted that in Williams v. Florida (1970), the Supreme Court had not set a constitutional minimum for the number of jurors in a panel. Instead, the lower court used the standard of Sanders v. Georgia (1976), another pornography-related case, in which the constitutionality of a five-member jury had been upheld.

When Ballew took the case to the Supreme Court, Citizens for Decency Through Law Inc. filed an amicus curiae brief urging affirmance of the lower court's ruling. One of the two men filing that brief was Charles Keating, Jr., who in the 1980s would be associated with the savings and loan scandal, and who in 1990 would himself be indicted. The issue of pornography, however--presumably the cause for the Citizens for Decency brief--hardly entered into the Court's discussion of Ballew v. Georgia. As petitioner, Ballew raised three issues: the constitutional question regarding the jury size, the constitutional sufficiency of the instructions the jury had received regarding scienter and "constructive knowledge" of the film's contents, and the question of obscenity. Since the Court found that the five-member jury did not satisfy the jury-trial guarantee in the Sixth Amendment, however, it did not even consider the other issues.