Stanley v. Georgia

LOCATION: Stanley's Home

DECIDED BY: Warren Court (1967-1969)

CITATION: 394 US 557 (1969)
ARGUED: Jan 14, 1969 / Jan 15, 1969
DECIDED: Apr 07, 1969

Facts of the case

Law enforcement officers, under the authority of a warrant, searched Stanley's home pursuant to an investigation of his alleged bookmaking activities. During the search, the officers found three reels of eight-millimeter film. The officers viewed the films, concluded they were obscene, and seized them. Stanley was then tried and convicted under a Georgia law prohibiting the possession of obscene materials.


Did the Georgia statute infringe upon the freedom of expression protected by the First Amendment?

Media for Stanley v. Georgia

Audio Transcription for Oral Argument - January 15, 1969 in Stanley v. Georgia

Audio Transcription for Oral Argument - January 14, 1969 in Stanley v. Georgia

Earl Warren:

Number 293, Robert Eli Stanley versus Georgia.

Wesley R. Asinof:

May it please the Court.

I would like to request the marshal to notify me when 25 minutes is up, I'd like to save five minutes for rebuttal, if I may.

Earl Warren:

You'll find a white light to come up in front of you.

That would be the five-minute warning.

Wesley R. Asinof:

Thank you.

Earl Warren:

Mr. Asinof, you may proceed with your argument.

Wesley R. Asinof:

Thank you.

Mr. Chief Justice and members of the Court, this case involves the constitutionality of the Georgia obscenity statute.

The questions raised by this appeal, in so far as the constitutionality of the statutes is concerned, are two-fold.

First, we raise the question that the statute violates the First Amendment because it punishes the mere possession of obscene material without requiring any further overt act on the part of the possessor or intent to do anything with it.

William O. Douglas:

What kind of possession was this?

Wesley R. Asinof:

This was a possession, if Your Honor please, where Robert Eli Stanley had possession of three reels of motion picture film in a desk drawer of his upstairs bedroom of his home.

There was no allegation in the indictment of any showing or attempt to exhibit or show these films or pander them or show them to minors.

The only question involved in so far as the indictment was concerned was that he possessed them knowing them to have been obscene or that he should reasonably have known them to have been obscene.

The second question of our constitutional attack on this statute is the use of the language in the statute and in the indictment to the effect that he reasonably should have known of the obscene nature of the film removes the element of scienter from the definition of the offense.

And thus, permits the state to secure a conviction for possessing these films on a showing less than actual knowledge on his part that they were obscene.

William O. Douglas:

Are they concededly obscene?

Wesley R. Asinof:

We do not concede them to be obscene and if we took that position with the trial court that under the First Amendment in so far as possession itself is concerned that there is no such thing as obscenity.

The reason we took that position and now take this position is this, that it would be a violation of the Freedom of Press Clause of the First Amendment to restrict a person or to prohibit a person from possessing anything they want in so far as its claim of obscenity is concerned.

We take the position that where a person merely possesses an article alleged to be obscene and does not attempt to distribute it or show it to any other persons, as was the case in this case and as was the indictment in this case and as with the holding by Supreme Court that the mere possession is an offense under the definition Georgia law that any evidence in the case on the part of the state or any contention on the part of the state to the effect that the evidence might have circumstantially show that he was about to have a party and about to show these films to other persons would be completely irrelevant for this Court to consider.

It has no relevancy here because of the fact that he was only charged with the mere possession.

Now, to my knowledge, this exact question has never been passed upon by this Court.

The question of whether or not a person can be prohibited by the states from merely possessing obscene material or obscene writings or pictures.

Clearly, it would seem to me that the mere possession, that anyone would have the right to say draw a picture which might obviously be obscene to some other persons and put it in his pocket or put it in his desk drawer.

Or if he wanted to take a picture of himself or picture of himself and his wife in a sexual act that this would be a matter that he could determine as long he did not attempt to pander this material, attempt to sell it, distribute it, or distribute it to minors.

William J. Brennan, Jr.:

I suppose when these films were in a desk drawer, weren't they?

Wesley R. Asinof:

These films were in a desk drawer.

These of course --

William J. Brennan, Jr.:

And could be as looking at the film, he couldn't tell it were?