Jenkins v. Georgia, 418 U.S. 152 (1974)

Jenkins was convicted of violating Georgia’s obscenity law when he showed ‘‘Carnal Knowledge’’ in his motion picture theater. Although the film received considerable critical acclaim, appeared on many ‘‘Top Ten’’ lists of movies for 1971, and lacked explicit sex scenes (although there was nudity), a local jury found the movie obscene. Georgia’s Supreme Court affirmed Jenkins’ conviction after noting Georgia’s statute was ‘‘considerably more restrictive’’ than the new standard contemporaneously set forth by Miller v. California (1973), raising questions as to jurors’ interpretations of the standard and appellate review of their conclusions on the basis of these interpretations.

The Supreme Court unanimously reversed the lower court decision but disagreed on why. Rehnquist wrote the opinion that Burger, White, Blackmun, and Powell joined. Douglas and Brennan wrote separately concurring in the judgment but not the majority’s reasons; Marshall and Steward joined Brennan’s concurrence.

Rehnquist seeks to clarify the Court’s new approach in Miller. He agrees with Georgia’s high court’s conclusion that juries do not have to be instructed in state obscenity law when they apply the standards of a ‘‘hypothetical state-wide community.’’ Miller approved such instructions but did not mandate them. Rehnquist also agreed with the Georgia court that juror instructions need not specify a ‘‘community’’ when applying ‘‘community standards.’’ He points out, ‘‘A State may choose to define an obscenity offense in terms of ‘contemporary community standards’ as defined in Miller without further specification. . .or it may choose to define the standards in more precise geographic terms.’’ The choice was up to the state.

The majority could not agree with Georgia, however, that after a jury decides a film appeals to a ‘‘prurient interest’’ and is ‘‘patently offensive’’ that Miller ‘‘virtually precluded all further appellate review’’ once the jury settles these ‘‘questions of fact.’’ Rehnquist explains that ‘‘it would be a serious misreading of Miller to conclude that juries have unbridled discretion’’ in these matters. Moreover, he adds, the Court ‘‘took pains’’ in Miller to provide examples of what constituted patent offensiveness. The purpose of these examples was to ‘‘fix substantive constitutional limitations’’ on the depictions or descriptions of sexual conduct that would not protected under the First Amendment. Juries were not free of appellate review if they ignored these limitations.

Rehnquist concludes by stating that on the basis of the Court’s ‘‘own viewing’’ of ‘‘Carnal Knowledge’’ that it did not depict ‘‘hard core’’ sexual conduct nor did it portray the nudity in the film in a patently offensive way. The film thus fell under the protection of the First Amendment, which mandated that the Georgia court’s decision be reversed.

Brennan’s concurrence reminds the Court that, as he foresaw in Paris Adult Theatre I v. Slaton (1973), the reformulated Miller test ‘‘does not extricate us from the mire of case-by-case determinations of obscenity.’’ The Court’s task, moreover, is not confined under Miller to part (c) and whether a film or other material lacked serious literary or artistic value. Rather Miller, as shown in this present case which involved the screening of ‘‘Carnal Knowledge’’ for the justices, also requires independent appellate review of part (b) and an independent assessment of whether a jury erroneously declares a film or work to be patently offensive. Miller, he concludes, has neither reduced the uncertainties of the process nor the ‘‘inevitable stress upon the judiciary.’’

ROY B. FLEMMING

References and Further Reading

• Alexander, Donald. The Politics of Pornography. Chicago: University of Chicago Press, 1989.
• Hixson, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale, IL: Southern Illinois University Press, 1996.
• Mackey, Thomas C. Pornography on Trial: A Handbook with Cases, Law, and Documents. Santa Barbara, CA: ABC-Clio, 2002.

Cases and Statutes Cited

• Jenkins v. Georgia, 418 U.S. 153 (1974)
• Miller v. California, 413 U.S. 15 (1973)
• Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)