Ballew v. Georgia

435 U.S. 223 (1978)


Ballew (D) was the manager of the Paris Adult Theatre. On November 9, two investigators viewed at the theater a motion picture film entitled 'Behind the Green Door.' After they had seen the film, they obtained a warrant for its seizure, returned to the theater, viewed the film once again, and seized it. D and a cashier were arrested. Investigators returned to the theater on November 26, viewed the film in its entirety, secured still another warrant, and on November 27 once again viewed the motion picture and seized a second copy of the film. D was charged in a two-count misdemeanor accusation with '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 . . . .' D was brought to trial and after a jury of 5 persons had been selected and sworn, D moved that the court impanel a jury of 12 persons. State law allowed a 5-person panel for misdemeanor cases. D contended that for an obscenity trial, a jury of only five was constitutionally inadequate to assess the contemporary standards of the community. D also argued that the Sixth and Fourteenth Amendments required a jury of at least six members in criminal cases. At the conclusion of the trial, the jury deliberated for 38 minutes and returned a verdict of guilty on both counts of the accusation. D appealed to the Court of Appeals for Georgia. The Court of Appeals rejected petitioner's contentions. The court independently reviewed the film in its entirety and held it to be 'hardcore pornography' and 'obscene as a matter of constitutional law and fact.' The Supreme Court of Georgia denied certiorari. The Supreme Court granted certiorari.