228 Ga. 102 | Ga. | 1971
This case was commenced as a civil action by the District Attorney of the Atlanta Judicial Circuit and the Solicitor of the Criminal Court of Fulton County alleging that the appellants (the defendants below) were exhibiting to the general public a motion picture film
Appellants enumerate as error the finding of "probable cause” as the basis for the trial court’s order. The film was viewed by the trial judge who found that sexual conduct was "graphically demonstrated in the close up camera shots and scenes of Sandra, while completely nude, having sexual intercourse with nude men on numerous occasions throughout the entire film, and the cunnilingal act of Phil on Sandra, and Sandra masturbating.” This, the court said gave it "probable cause to believe that the picture film 'Sandra— The Making of a Woman’ is obscene as a matter of fact and as a matter of law. . .”
We have viewed the film ourselves, and the trial judge’s description of the movie and of the sexual conduct portrayed therein is accurate. Although the film has a plot and it does contain some non-sexual footage, the plot obviously is nothing but a contrivance to link together the various sexual experiences of Sandra, the principal character. Practically from the first frame, the film is dominated by nudity and sex, and we are unable to perceive how its appear could be to anything but the prurient interests of its viewers.
Although we regard "Sandra” as hardcore pornography, the ruling we review here is not an order finding the film obscene, but merely a finding of probable cause. We view the finding of probable cause as tantamount to a determination that the district attorney had made out a prima facie case, since the finding and the resultant order did nothing more than preserve for a jury the ultimate question of whether "Sandra” is obscene. "A 'prima facie case’ is that state of facts which entitles the party to have the case go to the jury.” Criswell Baking Co. v. Milligan, 77 Ga. App.
Appellants contend that the trial court erred in conducting a hearing in the absence of a statute containing certain "built-in safeguards” against curtailment of constitutionally protected expression. They claim that such a statute is demanded by a number of decisions of the U. S. Supreme Court, and they cite in support of this position Blount v. Rizzi, 400 U. S. 410 (91 SC 423, 27 LE2d 498); Teitel Film Corp. v. Cusack, 390 U. S. 139 (88 SC 754, 19 LE2d 966); Freedman v. Maryland, 380 U. S. 51 (85 SC 734, 13 LE2d 649); Quantity of Books v. Kansas, 378 U. S. 205 (84 SC 1723; 12 LE2d 809); Marcus v. Search Warrant, 367 U. S. 717 (81 SC 1708, 6 LE2d 1127); and Kingsley Books, Inc. v. Brown, 354 U. S. 436 (77 SC 1325, 1 LE2d 1469). Appellants say that such statute must include the following: (1) sensitive tools for separating protected expression from obscenity; (2) specific procedural safeguards; (3) provision for a searching hearing on obscenity before any prior restraint; (4) provision for an adversary hearing; (5) provision for notice and hearing before any preliminary or temporary injunction; (6) provision requiring a prompt hearing after answer is filed by the theater owner; (7) provision for a prompt judicial decision within a certain time; and (8) provision for prompt appellate review. No such statute exists in Georgia, and appellants contend that our regular rules of civil procedure cannot constitutionally be applied to a case involving First Amendment rights, because they lack the "built-in safeguards” enumerated above. We reject this view. As we read the federal cases cited by appellants, they are merely illustrative of the rule that there must be prompt judicial participation in any determination of obscenity. We cannot agree that these cases, when read separately or in conjunction, require that the states enact special statutes establishing procedures exclusively for use in cases which involve First Amendment rights.
In the case at bar, we perceive no violation of the appel
It should be noted that the procedure followed in the trial court is the same as that employed in two earlier cases involving allegedly obscene films and approved by this court against substantially the same contentions. Walter v. Slaton, 227 Ga. 676 (182 SE2d 464); Evans Theatre Corp. v. Slaton, 227 Ga. 377 (180 SE2d 712). The procedures employed thus far, resulting in the issuance of an interlocutory injunction, are legitimate and abridge no rights guaranteed appellants by the First and Fourteenth Amendments.
We note that the trial court’s order was for a "preliminary” injunction but that it contains no limit as to time. In the Walter and Evans Theater cases we directed that the trial court orders be modified so as to show that they were to remain in force only until the final hearing of the case by a jury. The same direction is given in this case.
We find no merit in appellants’ additional enumerations of error, to wit: that the district attorney failed to carry the burden of proof in that he introduced no evidence other than the film itself; that the petition in effect asked for issuance of a search warrant; that the original complaint was not verified, although this was done by amendment; that the hearing below was a use of equity to
Judgment affirmed with direction.