Obscenity statute still dead

Federal appeals court affirms that the law is unconstitutional

Consider it one small step for free-speech advocates — and one giant step for sex-crazed Georgians: The 11th U.S. Circuit Court of Appeals has upheld a February ruling that Georgia’s obscenity statute is unconstitutional.

The February ruling ushered in what could be a golden age for obscenity in Georgia. While shops sold sex toys and graphic porn before the ruling, they did so at their own risk and were often the target of raids and legal action.

“This should resolve any doubt over whether the statute is around anymore,” says Cary Wiggins, who argued the case for This, That & the Other, a Smyrna head shop.

Owners of the shop filed suit against Cobb County in 2000, after Cobb officials tried to shut down the store by invoking the state’s seldom-used ban on selling vibrators and dildos. After a five-year court battle, the 11th Circuit Court sided with This, That & the Other — and overturned Georgia’s obscenity ban.

Cobb County responded by requesting that a panel of all the judges of the 11th Circuit Court hear the case “en banc.” But on April 14, a three-judge panel denied that motion, affirming its earlier decision. “[O]ur panel opinion clearly holds that, based on the law of the case, the entire [statute] is unconstitutional,” the ruling stated.

Yet Georgia’s period of ultimate obscenity soon may come to an end. The state Legislature could draft a new obscenity statute during the 2007 legislative session.

Lawmakers declined to introduce an anti-obscenity bill in the waning weeks of the most recent session — even after state Attorney General Thurbert Baker sent Gov. Sonny Perdue a letter alerting him that the obscenity ban had been struck down. Copies of the letter also were sent to the high-ranking members of the state House and Senate, according to Russ Willard, spokesman for the attorney general’s office.

“[The Legislature] chose to do nothing,” Willard says, “even though they had ample opportunity.”

Cobb County has the option of appealing the April 14 ruling to the U.S. Supreme Court.

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