United States Supreme Court Cases & Opinions

U.S. Supreme Court

SEWELL v. GEORGIA. , 435 U.S. 982 (1978)

April 24, 1978

The appeal is dismissed for want of a substantial federal question.

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.

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Page 435 U.S. 982 , 983

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Georgia Code 26-2101(a) provides that:

"A person commits the offense of distributing obscene materials when he sells . . . or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so, provided that the word 'knowing,' as used herein, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter, and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material."

Sections 26-2101(b) through 26-2101(d) define the term "obscene materials" used in 26-2101(a). Section 26-2101(b) covers published material alleged to be obscene and generally tracks the guidelines set out in Miller v. California, 413 U.S. 15 (1973 ). Section 26-2101(c) states that, in addition to material covered in subsection (b), "any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this section."

The jury was instructed that it should determine the obscen- [435 U.S. 982 , 984]

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