General Consideration

This section grants powers but it does not authorize Congress to delegate those powers. - Congress has power to enact a law to become effective when certain conditions come into existence and may delegate to an administrative officer the authority to determine, in accordance with the standard laid down by Congress, when the conditions have come into existence. Or, Congress may declare a policy and fix a definite standard by which the administrator is to be controlled and authorize him to make subordinate rules for the administration of the Act. Congress cannot, however, permit the administrator to determine what the law shall be. Payne v. Griffin, 51 F. Supp. 588 (M.D. Ga. 1943).

Extent of congressional authority. - The Constitution grants Congress the authority to make all laws necessary to effectuate its authority. However, this authority is not unchecked. Congress may pass only those laws which are consistent with the limits contained within the Constitution. United States v. Hill, 750 F. Supp. 524 (N.D. Ga. 1990).

Power to establish criminal defenses. - Congress clearly has the authority to establish and prescribe by law those defenses that are available to the defendants accused of federal criminal conduct. United States v. Hill, 750 F. Supp. 524 (N.D. Ga. 1990).

Regulation of mixed state-federal election. - The necessary and proper clause of this section, along with U.S. Const., art. I, sec. IV, empowers Congress to regulate mixed federal-state elections, even if the federal candidate is unopposed. United States v. McCranie, 169 F.3d 723 (11th Cir. 1999).

Cited in City of Waycross v. Bell, 169 Ga. 57 , 149 S.E. 641 (1929); In re Moore, 42 F.2d 475 (N.D. Ga. 1930); Citizens' & S. Nat'l Bank v. City of Atlanta, 46 F.2d 88 (N.D. Ga. 1931); Richardson v. Johnson Furn. Co., 176 Ga. 28 , 166 S.E. 662 (1932); In re Glover Casket Co., 1 F. Supp. 743 (N.D. Ga. 1932); Richmire v. Legg, 3 F. Supp. 787 (N.D. Ga. 1933); Atlantic Coast Line R.R. v. Nash Loan Co., 179 Ga. 52 , 175 S.E. 247 (1934); Rollins v. Legg, 179 Ga. 85 , 175 S.E. 382 (1934); Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm'n, 295 U.S. 285, 55 S. Ct. 709 , 79 L. Ed. 1439 (1935); Green v. Page, 9 F. Supp. 844 (S.D. Ga. 1935); Dean v. Georgia Pub. Serv. Comm'n, 193 Ga. 401 , 18 S.E.2d 756 (1942); Derrick v. City Council, 138 F.2d 507 (5th Cir. 1943); Perkins v. Brown, 53 F. Supp. 176 (S.D. Ga. 1943); Sykes v. Sanford, 150 F.2d 205 (5th Cir. 1945); United States ex rel. Goodman v. Hearn, 153 F.2d 186 (5th Cir. 1946); Benton v. Callaway, 165 F.2d 877 (5th Cir. 1948); Brown v. Sanford, 79 F. Supp. 146 (N.D. Ga. 1948); Blalock v. Brown, 78 Ga. App. 537 , 51 S.E.2d 610 (1949); Zuber v. Pennsylvania R.R., 82 F. Supp. 670 (N.D. Ga. 1949); Capitol Distrib. Co. v. Redwine, 206 Ga. 477 , 57 S.E.2d 578 (1950); Williams v. Cedartown Textiles, Inc., 208 Ga. 659 , 68 S.E.2d 705 (1952); Grayson-Robinson Stores, Inc. v. Oneida, Ltd., 209 Ga. 613 , 75 S.E.2d 161 (1953); United States v. Denmark, 119 F. Supp. 647 (S.D. Ga. 1953); Bisson v. Howard, 224 F.2d 586 (5th Cir. 1955); Looper v. Georgia, S. & Fla. Ry., 213 Ga. 279 , 99 S.E.2d 101 (1957); Smith v. UMW, 180 F. Supp. 796 (M.D. Ga. 1958); Stockham Valves & Fittings, Inc. v. Williams, 214 Ga. 803 , 108 S.E.2d 314 (1959); Central of Ga. Ry. v. Brower, 102 Ga. App. 462 , 116 S.E.2d 679 (1960); Coke v. City of Atlanta, 184 F. Supp. 579 (N.D. Ga. 1960); Heart of Atlanta Motel, Inc. v. United States, 231 F. Supp. 393 (N.D. Ga. 1964); U.S. Steel Corp. v. Undercofler, 220 Ga. 553 , 140 S.E.2d 269 (1965); Independent Publishing Co. v. Hawes, 224 Ga. 728 , 164 S.E.2d 559 (1968); Gilstrap v. United States, 389 F.2d 6 (5th Cir. 1968); Cross v. State, 122 Ga. App. 208 , 176 S.E.2d 517 (1970); DeKalb County v. Empire Distribs., Inc., 229 Ga. 497 , 192 S.E.2d 346 (1972); United States v. Crow, Pope & Land Enters., Inc., 340 F. Supp. 25 (N.D. Ga. 1972); Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975); Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S. Ct. 535 , 46 L. Ed. 2 d 495 (1976); DeKalb Cablevision Corp. v. Press Ass'n, 141 Ga. App. 1 , 232 S.E.2d 353 (1977); Fred Whitaker Co. v. E.T. Barwick Indus., Inc., 551 F.2d 622 (5th Cir. 1977); General Fin. Corp. v. Garner, 556 F.2d 772 (5th Cir. 1977); United States v. Southern Motor Carriers Rate Conference, 439 F. Supp. 29 (N.D. Ga. 1977); City of Macon v. Marshall, 439 F. Supp. 1209 (M.D. Ga. 1977); Georgia Franchise Practices Comm'n v. Massey-Ferguson, Inc., 240 Ga. 743 , 242 S.E.2d 69 (1978); High Ol' Times, Inc. v. Busbee, 449 F. Supp. 364 (N.D. Ga. 1978); Keenan Co. v. Pamlico, Inc., 245 Ga. 842 , 268 S.E.2d 334 (1980); High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980); Joyner v. Golden Dome Inv. Co., 7 Bankr. 596 (M.D. Ga. 1980); United States v. Yeatts, 639 F.2d 1186 (5th Cir. 1981); Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981); High Ol' Times, Inc. v. Busbee, 673 F.2d 1225 (11th Cir. 1982); Bleakley v. Jekyll Island-State Park Auth., 536 F. Supp. 236 (S.D. Ga. 1982); McCroan v. Bailey, 543 F. Supp. 1201 (S.D. Ga. 1982); Chemical Bank v. Grigsby's World of Carpet, Inc. (In re WWG Indus., Inc.), 44 Bankr. 287 (N.D. Ga. 1984); Geowaste of Ga., Inc. v. Tanner, 875 F. Supp. 830 (M.D. Ga. 1995).

Spending

Monetary awards for intentional torts. - Spending clause statutes may authorize monetary awards for intentional violations. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 112 S. Ct. 1028 , 117 L. Ed. 2 d 208 (1992).

Power of Congress to provide for payment of obligations in legal tender. - Sections 462 and 463 of 31 U.S.C., providing for discharge, by payment in legal tender, of obligations for payment in gold or any particular coin or currency, or in money of the United States measured thereby, of the then standard weight and fineness, are not unconstitutional as in violation of this section, as the exercise of a power not delegated to Congress, nor in violation of the due process clause of U.S. Const., amend. 5 or amend. 10. Smith v. Bukofzer, 180 Ga. 585 , 180 S.E. 358 (1935).

Congress authorized to impose conditions upon receipt of federal funds. - Congress has the authority under the spending clause to impose conditions that attach by the terms of the statute involved upon the receipt of federal funds offered under a federal act. Georgia Ass'n of Retarded Citizens v. McDaniel, 716 F.2d 1565 (11th Cir. 1983), vacated on other grounds, 468 U.S. 1213, 104 S. Ct. 3582 , 82 L. Ed. 2 d 880 (1984).

Taxation

Business conducted by state for gain. - The immunity implied from dual sovereignty recognized by Constitution does not extend to business enterprises conducted by states for gain. Allen v. Regents of Univ. Sys., 304 U.S. 439, 58 S. Ct. 980 , 82 L. Ed. 1448 (1938), overruled on other grounds, 469 U.S. 528, 105 S. Ct. 1005 , 83 L. Ed. 2 d 1016 (1985).

Power of judiciary to impinge upon rules of taxation established by Congress. - Congress bears the responsibility for establishing rules of taxation, and as long as Congress has acted within its constitutional powers, the judiciary cannot use its broad powers to frustrate specific statutory language. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga. 1975), aff'd, 518 F.2d 1405 (5th Cir. 1975).

Congress does not have an unlimited right to tax the citizenry. - A federal statute passed under the taxing power may be so arbitrary and capricious as to violate due process clause of U.S. Const., amend. 5. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga. 1975), aff'd, 518 F.2d 1405 (5th Cir. 1975).

Unconstitutionality of tax measure derives neither from unequal imposition nor from unequal incidence, but rather from that special instance where the law is so arbitrary as to compel the conclusion that it does not involve an exertion of the taxing power, but constitutes, in substance and effect, the direct exertion of a different and forbidden power, as, for example, the confiscation of property. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga. 1975), aff'd, 518 F.2d 1405 (5th Cir. 1975).

Within constitutional limitations, there is no equity in tax law. Fears v. United States, 386 F. Supp. 1223 (N.D. Ga. 1975), aff'd, 518 F.2d 1405 (5th Cir. 1975).

Commerce

1. Interstate and Foreign Commerce Transactions

"Interstate commerce" defined. - Interstate commerce consists of intercourse and traffic between citizens or inhabitants of different states, and includes the purchase, sale, and exchange of commodities. American Mills Co. v. Doyal, 46 Ga. App. 236 , 167 S.E. 312 (1933).

Determination of whether cause affects interstate commerce. - Where interstate commerce is affected, it is not a question of whether the affecting cause is a transaction in interstate or intrastate commerce, or an intrastate process, or intrastate understanding or combination, but rather a question of whether the cause really and substantially affects interstate commerce. Richmond Hosiery Mills v. Camp, 7 F. Supp. 139 (N.D. Ga. 1934), aff'd, 74 F.2d 200 (5th Cir. 1934).

Plaintiff made a prima facie showing that if manufacturer had minimum contacts with Georgia sufficient to support personal jurisdiction on a stream of commerce theory. Maxwell Chase Techs., L.L.C. v. KMB Produce, Inc., 79 F. Supp. 2d 1364 (N.D. Ga. 1999).

Determination of whether transaction constitutes interstate commerce. - In determining what does and does not constitute commerce, the circumstances, continuance, and extent of the transaction in question may be considered, and no court has ever attempted to lay down a definite and unvarying formula by which the problem may be solved. Commerce is not a technical, legal conception, but rather a practical one, drawn from the course of business. The exigencies of trade determine what is essential to the business or process of interstate commerce in that trade. Interstate commerce is increased and enlarged with each additional degree and development of transportation and communication. Fleming v. Alterman, 38 F. Supp. 94 (N.D. Ga. 1941).

Passage of a person from one state to another is interstate commerce within meaning of Constitution, and enactment by Congress of statute making it a federal offense to do so for purpose of escaping prosecution for a crime, is within the power of Congress. Simmons v. Zerbst, 18 F. Supp. 929 (N.D. Ga. 1937).

Federal commerce power encompasses the movement in interstate commerce of persons as well as commodities. United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170 , 16 L. Ed. 2 d 239 (1966).

State cannot authorize violation of commerce clause. - A state cannot authorize activity which violates the commerce clause; thus, if the Georgia statute enabling authorities to enter into agreements for exclusive rights with respect to solid waste disposal is interpreted to exclude competition from the solid waste disposal market, then it would conflict with the commerce clause, and, accordingly, conduct of authorities pursuant to the statute would not be entitled to state action immunity. Pine Ridge Recycling, Inc. v. Butts County, 855 F. Supp. 1264 (M.D. Ga. 1994).

If the contract is for sale of article and for its delivery to buyer in another state, transaction is one of interstate commerce. American Mills Co. v. Doyal, 46 Ga. App. 236 , 167 S.E. 312 (1933).

Manufacturing alone, within a single state, is not commerce and the fact that the things manufactured are to be shipped or used in interstate commerce does not make their production a part thereof. Richmond Hosiery Mills v. Camp, 7 F. Supp. 139 (N.D. Ga. 1934), aff'd, 74 F.2d 200 (5th Cir. 1934).

One who ships interstate is unquestionably engaged in commerce, and one whose business is to all practical purposes exclusively the receipt and distribution of such shipments by wholesale and in such manner as to produce a constant and continuous recurrence thereof is as much a part thereof by the day-in and day-out receipt and distribution of such goods as one who ships them. Each activity is a part of the whole of commerce among the several states, and the whole includes the parts. Fleming v. Alterman, 38 F. Supp. 94 (N.D. Ga. 1941).

Question of whether there is subsequent interstate shipment furnishes one test of interstate commerce, but does not supply a definite and unvarying standard which may be applied to all transactions to measure and define their interstate or intrastate character. Of necessity, each transaction and business must be determined in the light of all surrounding circumstances. Fleming v. Alterman, 38 F. Supp. 94 (N.D. Ga. 1941).

If transportation has acquired an interstate character it continues at least until the load reaches the point where the parties originally intended that the movement should finally end. Fleming v. Alterman, 38 F. Supp. 94 (N.D. Ga. 1941).

Commerce in tobacco is overwhelmingly interstate and foreign. Mulford v. Smith, 24 F. Supp. 919 (M.D. Ga. 1938), aff'd, 307 U.S. 38, 59 S. Ct. 648 , 83 L. Ed. 1092 (1939).

Nationwide business of local sales contracts. - A nationwide business is not deprived of its interstate character merely because it is built upon sales contracts which are local in nature. United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S. Ct. 1162 , 88 L. Ed. 1440 (1944) (decided under prior law).

Radio broadcasting or communications are all interstate; this is so although such broadcasting may be intended for intrastate transmissions only. Radio broadcasting is an instrumentality of interstate commerce and subject to regulation under the commerce clause of the Constitution. Regents of Univ. Sys. v. Carroll, 78 Ga. App. 292 , 50 S.E.2d 808 (1948), aff'd, 338 U.S. 586, 70 S. Ct. 370 , 94 L. Ed. 363 (1950).

Private transactions of public utility not subject to regulation as interstate commerce. - Although radio broadcasting is truly an interstate proposition, and an operator of radio broadcasting station is an operator of public utility and thus subject to regulation as any other public utility engaged in interstate transactions would be under the authority given Congress by the commerce clause of the Constitution, its private transactions, not affected with a public interest and not connected with its operation as an interstate public utility, are not subject to regulation and control by Federal Communications Commission under the Federal Communications Act of 1934, as amended (47 U.S.C. § 151 et seq.), or any other governmental agency empowered to regulate interstate transactions of a public utility; matters of private concern and contracts affecting private rights, which do not have as their subject matter the rights conferred by a license or do not substantially affect such rights, are not within the scope of the commission's power to regulate and control, in the public interest, broadcasting by radio stations and licenses to such stations. Regents of Univ. Sys. v. Carroll, 78 Ga. App. 292 , 50 S.E.2d 808 (1948), aff'd, 338 U.S. 586, 70 S. Ct. 370 , 94 L. Ed. 363 (1950).

Under facts, restaurant engaged in interstate commerce. - Because witnesses testified that upon presenting themselves for service no inquiry was made as to their place of residence, and because the restaurant had several large signs on two important business route portions of federal highways, and because the restaurant itself was situated on a main business route, a federal interstate highway, and because it was clear beyond any question that a very substantial part of the dollar value of the food and other products served or sold by the restaurant originated outside of the state and thus had moved in commerce, the restaurant was engaged in interstate commerce. Willis v. Pickrick Restaurant, 231 F. Supp. 396 (N.D. Ga. 1964), appeal dismissed sub nom. Maddox v. Willis, 382 U.S. 18, 86 S. Ct. 72 , 15 L. Ed. 2 d 13 (1965).

Noncommercial, illegal, or sporadic transactions. - Not only may transactions be commerce though noncommercial, but they may also be commerce though illegal and sporadic, and though they do not utilize common carriers or concern the flow of anything more tangible than electrons and information. United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S. Ct. 1162 , 88 L. Ed. 1440 (1944) (decided under prior law).

Acquisition of firearms by felons, etc., subject to regulation as interstate commerce. - The acquisition of firearms by convicted felons and persons under indictment for felonies, although arguably intrastate activity, imposes a sufficient burden upon interstate commerce to be a proper subject for federal regulation. United States v. Nelson, 458 F.2d 556 (5th Cir. 1972).

Federal statute prohibiting firearm possession by domestic violence offenders. - Federal statute prohibiting anyone convicted of a domestic violence misdemeanor from possessing or receiving a firearm did not violate the commerce clause. National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998).

Organizations affecting commerce may not escape coverage of social legislation by showing that they were created for fraternal or religious purposes. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

2. Power of Congress to Regulate

Scope of power. - Power of Congress over interstate commerce is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed by the Constitution. United States v. Darby, 312 U.S. 100, 61 S. Ct. 451 , 85 L. Ed. 609 (1941); Drake v. Hirsch, 40 F. Supp. 290 (N.D. Ga. 1941); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348 , 13 L. Ed. 2 d 258 (1964).

Power to regulate commerce is the power to prescribe the rule by which commerce is to be governed. It extends not only to those regulations which aid, foster, and protect the commerce, but embraces those which prohibit it. United States v. Darby, 312 U.S. 100, 61 S. Ct. 451 , 85 L. Ed. 609 (1941).

Power of Congress over interstate commerce is not confined to regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the power granted to Congress to regulate interstate commerce. United States v. Darby, 312 U.S. 100, 61 S. Ct. 451 , 85 L. Ed. 609 (1941); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348 , 13 L. Ed. 2 d 258 (1964); Willis v. Pickrick Restaurant, 231 F. Supp. 396 (N.D. Ga. 1964), appeal dismissed sub nom. Maddox v. Willis, 382 U.S. 18, 86 S. Ct. 72 , 15 L. Ed. 2 d 13 (1965).

Commerce clause gives exclusive power to Congress to regulate interstate commerce, and its failure to act on the subject in area of taxation nevertheless requires that interstate commerce shall be free from any direct restrictions or impositions by the states. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S. Ct. 357 , 3 L. Ed. 2 d 421 (1959);(decided under prior law).

Supremacy of federal power. - Regulations of commerce by Congress, including those of persons carrying it on and the instrumentalities used in it, although they may fall within field of ordinary police power, such as laws regulating employers' liability, hours of service of employees, safety appliances on equipment, and the like, will override police regulations of state when in conflict with them, because of the supremacy of the federal Constitution and laws, although in the absence of congressional legislation such state regulation would stand. Johnson Transf. & Freight Lines v. Perry, 47 F.2d 900 (N.D. Ga. 1931).

Where Congress assumes regulation and control of interstate commerce its power is supreme and any state regulations to the contrary are of no effect. Tucker v. Casualty Reciprocal Exch., 40 F. Supp. 383 (N.D. Ga. 1941).

If interstate and intrastate commerce are served by same instrumentalities of common carrier, and it appears that a state regulation applied directly to intrastate business may in fact burden interstate commerce, such state regulation must yield to the federal power to assure adequate interstate service. Western Union Tel. Co. v. State, 207 Ga. 675 , 63 S.E.2d 878 (1951).

Commerce clause is restricted by its terms to the control of interstate commerce. Montgomery & Atlanta Freight Lines v. Georgia Pub. Serv. Comm'n, 175 Ga. 826 , 166 S.E. 200 (1932).

Whatever affects interstate commerce in a substantial and direct way may be regulated by Congress, regardless of whether the affecting cause is a transaction in intrastate process or agreement. Richmond Hosiery Mills v. Camp, 7 F. Supp. 139 (N.D. Ga. 1934), aff'd, 74 F.2d 200 (5th Cir. 1934).

Congress has power to regulate transactions in and affecting interstate commerce by removing discriminations against and burdens upon it and by measures to foster and promote its growth and insure its safety. Richmond Hosiery Mills v. Camp, 7 F. Supp. 139 (N.D. Ga. 1934), aff'd, 74 F.2d 200 (5th Cir. 1934).

Exercise of congressional power to regulate. - Commerce means something more than traffic; it is intercourse, and the power committed to Congress to regulate commerce is exercised by prescribing rules for carrying on that intercourse. Simmons v. Zerbst, 18 F. Supp. 929 (N.D. Ga. 1937).

Elements of Congress' regulatory power. - Any rule which is intended to foster, protect, and conserve commerce, or to prevent the flow of commerce from working harm to the people of the nation, is within the competence of Congress. Within these limits, the exercise of the power, the grant being unlimited in its terms, may lawfully extend to the absolute prohibition of such commerce, and, a fortiori, to limitation of the amount of a given commodity which may be transported in such commerce. The motive of Congress in exerting the power is irrelevant to the validity of the legislation. Mulford v. Smith, 307 U.S. 38, 59 S. Ct. 648 , 83 L. Ed. 1092 (1939).

If regulation of interstate commerce of any kind is needed, Congress, not the states, must furnish it; and it may be of any kind not prohibited by other constitutional provisions. Mulford v. Smith, 24 F. Supp. 919 (M.D. Ga. 1938), aff'd, 307 U.S. 38, 59 S. Ct. 648 , 83 L. Ed. 1092 (1939).

Federal power over intrastate railroad tracks and agencies. Congress's preemption of state regulatory authority over intrastate railroad tracks and agencies is a valid exercise of its authority to regulate under the commerce clause. CSX Transp., Inc. v. Georgia Pub. Serv. Comm'n, 944 F. Supp. 1573 (N.D. Ga. 1996).

Intrastate rates may be controlled by Congress when so involved with interstate commerce as to make it necessary. Mulford v. Smith, 24 F. Supp. 919 (M.D. Ga. 1938), aff'd, 307 U.S. 38, 59 S. Ct. 648 , 83 L. Ed. 1092 (1939).

Within its sphere, the power of Congress to regulate interstate commerce is in its nature a police power, to be exerted for the public good and in any way, not prohibited, which Congress deems calculated to achieve the desired regulatory effect. This may involve affecting or controlling what would usually pertain to the state police power. Mulford v. Smith, 24 F. Supp. 919 (M.D. Ga. 1938), aff'd, 307 U.S. 38, 59 S. Ct. 648 , 83 L. Ed. 1092 (1939).

Power to regulate certain local activities. - While agriculture, mining, manufacturing, and the like, are in themselves local activities, the regulation of which generally belongs to the states and not to Congress, and sales made within the state are not intended at the time to result in removing the goods from the state, it may not be maintained that such intrinsically local matters do not under some circumstances become so interwoven with interstate and foreign commerce as to render it necessary and proper for Congress to affect to control them in order to regulate the interstate and foreign commerce which springs from them. The power of Congress to regulate such commerce is paramount and very broad. Mulford v. Smith, 24 F. Supp. 919 (M.D. Ga. 1938), aff'd, 307 U.S. 38, 59 S. Ct. 648 , 83 L. Ed. 1092 (1939).

Motive and purpose of regulation of interstate commerce are matters for legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control. United States v. Darby, 312 U.S. 100, 61 S. Ct. 451 , 85 L. Ed. 609 (1941).

Congress can regulate traffic though it consists of intangibles. United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S. Ct. 1162 , 88 L. Ed. 1440 (1944) (decided under prior law).

Incidental regulation of intrastate commerce. - The execution by Congress of its power to regulate interstate commerce is not limited by fact that intrastate transactions may have become so interwoven therewith that effective control of interstate commerce by Congress incidentally controls intrastate commerce. Western Union Tel. Co. v. State, 207 Ga. 675 , 63 S.E.2d 878 (1951).

No sort of trade can be carried on to which this power does not extend. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348 , 13 L. Ed. 2 d 258 (1964).

Authority of the federal government over interstate commerce does not differ in extent or character from that retained by the states over intrastate commerce. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348 , 13 L. Ed. 2 d 258 (1964).

Determinative test of the exercise of power by Congress under the commerce clause is simply whether the activity sought to be regulated is commerce which concerns more states than one and has a real and substantial relation to the national interest. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348 , 13 L. Ed. 2 d 258 (1964).

Tenth amendment does not operate upon a valid exercise of power delegated to Congress by the commerce clause. United States v. Collier, 478 F.2d 268 (5th Cir. 1973).

Direct regulation of interstate carriage, including regulation of the persons carrying and their vehicles, is vested in federal government. Johnson Transf. & Freight Lines v. Perry, 47 F.2d 900 (N.D. Ga. 1931).

Federal power over interstate waterways. - The power of the United States over its waters capable of use as interstate highways stems from the authority to regulate commerce among the several states delegated to Congress under U.S. Const., art. I, sec. VIII, cl. 3. Such power extends to the entire bed of the stream and includes lands below the ordinary high-water mark. Federal jurisdiction over such waters embraces the whole surface of bodies of water subject to tidal action no matter how shallow or obstructed. A common sense view permits no distinction upon the ground of navigability between the shallows and depths of navigable waters. United States v. Lewis, 355 F. Supp. 1132 (S.D. Ga. 1973).

Elimination of racial discrimination. - Congressional power to legislate in furtherance of the elimination of racial discrimination is derived from the thirteenth amendment, the power over interstate commerce, the power under the fourteenth amendment, and the power under the fifteenth amendment. United States v. Bob Lawrence Realty, Inc., 474 F.2d 115 (5th Cir.), cert. denied, 414 U.S. 826, 94 S. Ct. 131 , 38 L. Ed. 2 d 59 (1973).

Prohibition of injurious articles. - Congress, following its own conception of public policy concerning restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals, or welfare, even though the states have not sought to regulate their use. United States v. Darby, 312 U.S. 100, 61 S. Ct. 451 , 85 L. Ed. 609 (1941).

Application of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., to a county is not an unconstitutional exercise of power under the commerce clause. Prickett v. DeKalb County, 92 F. Supp. 2d 1357 (N.D. Ga. 2000).

Congress lacks transcendent legislative authority with regard to labor relations; its authority to prescribe labor-management ordinances derives from its power over interstate commerce. Baldovin v. International Longshoremen's Ass'n, 626 F.2d 445 (5th Cir. 1980).

Requiring disclosure of credit information within congressional power. - A statutory scheme requiring disclosure by creditors of credit information expressed in a uniform manner, as well as disclosure of the actual annual interest rate to the debtor, is within the power granted to Congress under the commerce clause. Thomas v. Myers-Dickson Furn. Co., 479 F.2d 740 (5th Cir. 1973).

Commerce power is subject to the due process clause of the fifth amendment. United States v. Hawes, 529 F.2d 472 (5th Cir. 1976).

There is no requirement of national uniformity when Congress exercises its power under the commerce clause. United States v. Hawes, 529 F.2d 472 (5th Cir. 1976).

Regulations not infringing constitutional prohibition. - Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the commerce clause. Alewine v. City Council, 505 F. Supp. 880 (S.D. Ga. 1981), aff'd in part and rev'd in part on other grounds, 699 F.2d 1060 (11th Cir. 1983), cert. denied, 470 U.S. 1027, 105 S. Ct. 1391 , 84 L. Ed. 2 d 781 (1985).

Federal arson statute authorized. - Federal arson statute (18 U.S.C. § 844(i)) was within the regulatory authority of Congress. United States v. Chowdhury, 118 F.3d 742 (11th Cir. 1997).

Purely intrastate disputes do not fall within the commerce clause and therefore are not subject to the federal Lanham Act's regulation of service marks. Jellibeans, Inc. v. Skating Clubs of Ga., Inc., 716 F.2d 833 (11th Cir. 1983).

Court's jurisdiction invoked by fact business uses service mark in interstate commerce. - The fact that a business uses its service mark in interstate commerce is sufficient to invoke the federal court's jurisdiction. There is no requirement that the business of an infringer be shown to be interstate as well. Jellibeans, Inc. v. Skating Clubs of Ga., Inc., 716 F.2d 833 (11th Cir. 1983).

3. Power of State to Regulate

State law that frustrates or conflicts with lawful objective of federal statute must yield to the federal authority. United States v. Composite State Bd. of Medical Exmrs., 656 F.2d 131 (5th Cir. 1981).

Mere privilege of engaging in interstate commerce is not derived from the state and cannot be conditioned by a state upon procuring a license or paying a tax. Johnson Transf. & Freight Lines v. Perry, 47 F.2d 900 (N.D. Ga. 1931).

General police power and general taxing power are reserved to the state government, and these may usually be exercised without excepting persons and instrumentalities engaged in interstate commerce, provided there is no discrimination against interstate commerce, and provided no direct and unreasonable burden is put upon it. Johnson Transf. & Freight Lines v. Perry, 47 F.2d 900 (N.D. Ga. 1931).

State may license or refuse to license, may condition or charge for, the use of its improved roads, when they are turned from their common uses and purposes to the carrier's business, since an interstate carrier has no better right than any other to use the state's improved highways without its consent, or without paying for it. Johnson Transf. & Freight Lines v. Perry, 47 F.2d 900 (N.D. Ga. 1931).

Certificate of public convenience and necessity, with a reasonable fee therefor, and an annual license fee for trucks, are legally demandable by state as a nondiscriminatory prerequisite for use of highways for carrier purposes, even though the commerce involved is wholly interstate. Johnson Transf. & Freight Lines v. Perry, 47 F.2d 900 (N.D. Ga. 1931).

State statute imposing duty of ordinary care not unreasonable burden. - In absence of action by Congress authorizing particular acts, complained of as negligence, or in prescribing degree of care and diligence to be exercised by railroad company in operating interstate trains at public crossings, it cannot be said that general duty to exercise ordinary care, imposed by law of state upon its citizens generally, constitutes an unreasonable burden upon interstate commerce because persons engaged in interstate commerce incidentally come within purview of such general laws. Seaboard Air Line Ry. v. Benton, 43 Ga. App. 495 , 159 S.E. 717 (1931), rev'd on other grounds, 175 Ga. 491 , 165 S.E. 593 (1932); Powell v. Smith, 70 Ga. App. 754 , 29 S.E.2d 521 (1944).

State has full power and authority to regulate and control business within its jurisdiction, unless such regulations and control conflict with terms of its own or the federal Constitution. Montgomery & Atlanta Freight Lines v. Georgia Pub. Serv. Comm'n, 175 Ga. 826 , 166 S.E. 200 (1932).

Elements of regulation of intrastate and interstate motor carriers. - Use of public highways by private intrastate and interstate motor carriers of goods may be conditioned by the state upon the carrier's obtaining a license, complying with reasonable regulations, paying a reasonable license fee and tax for expenses of highway administration, and maintenance and reconstruction of the highways covered by the license, and upon the filing of an insurance policy as security against injuries from carrier's negligent operations to persons and property other than passengers and property he carries. In the exercise of its right to demand compensation for special highway facilities it has provided, and of its power to regulate use of its highways in the interest of public safety, a state may properly treat motor vehicles as a special class, because of the special damage to the highways and special dangers to the public attending their operation. Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm'n, 179 Ga. 431 , 176 S.E. 487 (1934), aff'd, 295 U.S. 285, 55 S. Ct. 709 , 79 L. Ed. 1439 (1935).

Law regulating insurance. - Provision of O.C.G.A. § 33-34-3 that motor vehicle insurance policies issued by insurers authorized to transact business in the state are deemed to provide the minimum coverage required by Georgia law when the insured is involved in an accident in Georgia is shielded from attack under the commerce clause by the McCarran-Ferguson Act. Bankers Ins. Co. v. Taylor, 267 Ga. 134 , 475 S.E.2d 619 (1996).

Mere existence of power does not deprive states of authority. - The mere existence of congressional power, no conflict with its exercise being shown, does not deprive the states of their authority to safeguard their local interests by legislation which does not directly burden transactions in interstate or foreign commerce. Townsend v. Yeomans, 301 U.S. 441, 57 S. Ct. 842 , 81 L. Ed. 1210 (1937).

Absent congressional legislation on subject, state laws which are not regulations of commerce itself or its instrumentalities are not forbidden even though they affect interstate commerce. United States v. Darby, 312 U.S. 100, 61 S. Ct. 451 , 85 L. Ed. 609 (1941).

Appropriate local regulations adopted primarily to promote safety upon streets of municipality are not obnoxious to commerce clause where the indirect burden upon interstate commerce is not unreasonable. Lowe v. City Council, 45 F. Supp. 143 (S.D. Ga. 1942).

Limitations on local power to regulate. - Local or internal commerce, not affecting other states and with which it is not necessary to interfere for purpose of executing some of the general powers of the government, may be controlled by local authorities; but if a city government may control the commerce that flows through it from outside state by such exactions as make the movement no longer profitable or possible, other states are affected and the general powers of the national government are circumscribed beyond the limits the Constitution allows. Lowe v. City Council, 45 F. Supp. 143 (S.D. Ga. 1942).

Validity of municipal ordinance regarding taxicab owners operating interstate and intrastate. - Provisions of municipal ordinance requiring operators of taxicabs to maintain office, telephone, and attendant on duty at all times within city is void as to taxicab owners residing outside state who are engaged in interstate business, because it conflicts with the commerce clause; but provisions of municipal ordinance dealing with prevention of cruising upon streets, proscribing use of one street, where traffic congests, for more than one block at a time, limiting number of passengers in one automobile, and requiring operator to drive with care and prudence in compliance with police regulations, are not directed at and do not discriminate against those engaged in interstate commerce. Local taxicabs and like vehicles operating intrastate are bound by them. Lowe v. City Council, 45 F. Supp. 143 (S.D. Ga. 1942).

A city ordinance that puts an undue burden on commerce is offensive to U.S. Const., art. I, sec. VIII, cl. 3. - Not all burdens upon commerce, but only undue or discriminatory ones, are forbidden. Graves v. City of Gainesville, 78 Ga. App. 186 , 51 S.E.2d 58 (1948).

Barrier to trade with other states. - A state consistently with the commerce clause cannot put a barrier around its borders to bar trade from other states and thus bring to naught the great constitutional purpose of the fathers in giving to Congress the power to regulate commerce with foreign nations and among the several states. Graves v. City of Gainesville, 78 Ga. App. 186 , 51 S.E.2d 58 (1948).

The twenty-first amendment removes spirituous liquors and alcohol from protection of commerce clause to the extent necessary to allow the states to adopt and enforce appropriate laws and regulations dealing with the subject, and thus to burden interstate commerce to this extent. Even in the absence of any protection under U.S. Const., amend. 21, the sovereign states in the exercise of their reserved police power may, without offending the commerce clause, adopt and enforce necessary laws and regulations to effectuate their own protection against illegal traffic and trade in such liquors. Atkins v. Manning, 206 Ga. 219 , 56 S.E.2d 260 (1949); Redwine v. Schenley Indus., Inc., 210 Ga. 769 , 83 S.E.2d 16 (1954).

Supremacy of federal power over state regulations burdening interstate commerce. - If interstate and intrastate commerce are served by same instrumentalities of common carrier, and it appears that a state regulation applied directly to intrastate business may in fact burden interstate commerce, such state regulation must yield to the federal power to assure adequate interstate service. Western Union Tel. Co. v. State, 207 Ga. 675 , 63 S.E.2d 878 (1951).

State may exercise power of eminent domain although interstate commerce may be indirectly or incidentally involved. Elberton S. Ry. v. State Hwy. Dep't, 211 Ga. 838 , 89 S.E.2d 645 (1955).

State's inherent right to regulate internal commerce. - Although Congress has the exclusive power to regulate interstate commerce, and while the courts have held that a state cannot impose undue burdens on interstate commerce, a state has an inherent and reserved right to regulate its local, domestic, and internal commerce, even though by so doing it may indirectly or incidentally affect interstate commerce. Elberton S. Ry. v. State Hwy. Dep't, 211 Ga. 838 , 89 S.E.2d 645 (1955); Southern Ry. v. State Hwy. Dep't, 219 Ga. 435 , 134 S.E.2d 12 (1963).

Commerce clause gives exclusive power to Congress to regulate interstate commerce, and its failure to act on the subject in area of taxation nevertheless requires that interstate commerce shall be free from any direct restrictions or impositions by the states. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S. Ct. 357 , 3 L. Ed. 2 d 421 (1959);(decided under prior law).

Federal law excludes local regulation, even though the latter does no more than supplement the former. Complementary state regulations are as invalid as state regulations which conflict with the federal scheme. Campbell v. Hussey, 368 U.S. 297, 82 S. Ct. 327 , 7 L. Ed. 2 d 299 (1961).

Limitation on state's power of eminent domain where interstate commerce affected. - A state may exercise its power of eminent domain in acquiring necessary rights of way for state-aid roads although interstate commerce may be indirectly or incidentally involved, but a state cannot by an arbitrary, capricious, and unnecessary exercise of its power of eminent domain take and destroy property which a railway company is using for the purpose of carrying on interstate commerce. Southern Ry. v. State Hwy. Dep't, 219 Ga. 435 , 134 S.E.2d 12 (1963).

Power of states as to local concerns. - Commerce clause did not withdraw from the states the power to legislate with respect to their local concerns, even though such legislation may indirectly and incidentally affect interstate commerce and persons engaged in it. Southern Ry. v. Overnite Transp. Co., 223 Ga. 825 , 158 S.E.2d 387 (1967).

Validity of statutes affecting interstate commerce. - State statutes that only relate to or indirectly affect interstate commerce or cover matters not legislated on by Congress are not invalid as interfering with or burdening interstate commerce. Southern Ry. v. Overnite Transp. Co., 223 Ga. 825 , 158 S.E.2d 387 (1967).

Power of state to regulate for public safety. - The United States Supreme Court has recognized the "broad power in the state to protect its inhabitants against perils to health or safety, fraudulent traders, and highway hazards, even by use of measures which bear adversely upon interstate commerce." General GMC Trucks, Inc. v. GMC Truck & Coach Div., 239 Ga. 373 , 237 S.E.2d 194 , cert. denied, 434 U.S. 996, 98 S. Ct. 634 , 54 L. Ed. 2 d 491 (1977).

Georgia courts, though broadly construing the police power, have traditionally limited power of state to regulate private business under U.S. Const., art. I, sec. VIII, cl. 1. General GMC Trucks, Inc. v. GMC Truck & Coach Div., 239 Ga. 373 , 237 S.E.2d 194 , cert. denied, 434 U.S. 996, 98 S. Ct. 634 , 54 L. Ed. 2 d 491 (1977).

Test for validity of statute affecting interstate commerce. - If a statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless burden imposed on such commerce is clearly excessive in relation to putative local benefits. General GMC Trucks, Inc. v. GMC Truck & Coach Div., 239 Ga. 373 , 237 S.E.2d 194 , cert. denied, 434 U.S. 996, 98 S. Ct. 634 , 54 L. Ed. 2 d 491 (1977).

State law limiting medical suppliers. - State policy that suppliers of durable medical supplies have a valid business license and an in-state business location or be located within a fifty mile radius of the state boundary was violative of the interstate commerce clause. It discriminated against interstate commerce and was not the least burdensome means of accomplishing its stated purpose: reducing the administrative costs of the Medicaid program and protecting the citizens of Georgia. Nutritional Support Servs. v. Miller, 830 F. Supp. 625 (N.D. Ga. 1993).

Validity of real estate broker licensure requirements. - Real estate broker licensure requirements, which are not uncommonly imposed by the states, generally withstand attack on the basis of the commerce clause; Supreme Court of Georgia does not find Georgia's invalid. Krizan v. Newman & Co., 246 Ga. 214 , 271 S.E.2d 135 (1980).

O.C.G.A. §§ 40-2-111 and 40-2-112 discriminate against interstate commerce because they impose taxes on vehicles registered in certain states which are not imposed on vehicles registered in the State of Georgia. State v. Private Truck Council of Am., Inc., 258 Ga. 531 , 371 S.E.2d 378 (1988).

State licensing requirements unenforceable where review over federal determination conferred thereby. - A state may not enforce licensing requirements that, though valid in the absence of federal regulation, give the state's licensing board a virtual power of review over the federal determination that a person is qualified to perform certain functions. United States v. Composite State Bd. of Medical Exmrs., 656 F.2d 131 (5th Cir. 1981).

Regulation of taxicabs. - A city ordinance which placed a limit on the number of taxi permits to be issued and which limited the number of certificates of public necessity and convenience to be issued did not violate the commerce clause. Airport Taxi Cab Advisory Comm. v. City of Atlanta, 584 F. Supp. 961 (N.D. Ga. 1983).

One-year Georgia residency requirement for holders of certificates of public necessity and convenience to operate taxicabs in Atlanta, Ga., City Code § 162-57(a)(3) violated the commerce clause because the city did not show that discrimination against non-residents was demonstrably justified by a valid factor unrelated to economic protectionism; there was no relationship between the residency requirement and a valid government interest, and the requirement was economic protectionism which created an artificial barrier to commerce. Atlanta Taxicab Co. Owners Ass'n v. City of Atlanta, 281 Ga. 342 , 638 S.E.2d 307 (2006).

Association of taxicab owners had standing to challenge the constitutionality under the commerce clause of a one-year Georgia residency requirement for holders of certificates of public necessity and convenience (CPNC) to operate taxicabs in Atlanta, Ga., City Code § 162-57(a)(3) because the provision erected an existing impediment to the solicitation and eventual consummation of any sale or lease of a CPNC to a nonresident of Georgia; enforcement of § 162-57(a)(3) against them impacted their right to engage freely in those business activities currently authorized by the CPNCs issued to them under Atlanta, Ga., City Code ch. 162. Atlanta Taxicab Co. Owners Ass'n v. City of Atlanta, 281 Ga. 342 , 638 S.E.2d 307 (2006).

City ordinances which regulated the fares which licensed limousine service companies could charge for trips to and from an airport and prohibited the advertising of any fares that were not in compliance did not violate the commerce clause and the fourteenth amendment. Executive Town & Country Servs., Inc. v. City of Atlanta, 789 F.2d 1523 (11th Cir. 1986).

Interstate transportation of refuse. - A county's application of O.C.G.A. § 36-1-16 , which restricts transportation of refuse, to prohibit a waste management company from operating a landfill, which was owned by a municipality but located in the county, as a regional landfill, i.e., from receiving waste from outside the county and from outside the state, violated the company's constitutional commerce clause right to engage in interstate commerce without discriminatory intervention. Diamond Waste, Inc. v. Monroe County, 731 F. Supp. 505 (M.D. Ga. 1990), aff'd in part, vacated on other grounds, 939 F.2d 941 (11th Cir. 1991).

County resolution preventing a waste management firm from importing waste of any kind into the county from other counties and other locations violated the commerce clause. Diamond Waste, Inc. v. Monroe County, 939 F.2d 941 (11th Cir. 1991).

O.C.G.A. § 36-1-16 , which permits Georgia counties to require an application for a permit from those who would bring across state or county boundaries garbage, trash, waste, or refuse for the purpose of dumping such at a publicly or privately owned dump, is constitutional. Diamond Waste, Inc. v. Monroe County, 939 F.2d 941 (11th Cir. 1991).

County ordinance regulating the transport of out-of-county waste into the county did not violate the commerce clause on its face. Diamond Waste, Inc. v. Monroe County, 796 F. Supp. 1511 (M.D. Ga. 1992).

Landfill operator with solid waste handling permit was within the "zone of interests" protected by the commerce clause because its ability or inability to operate impacted the flow of interstate commerce. Diamond Waste, Inc. v. Monroe County, 796 F. Supp. 1511 (M.D. Ga. 1992).

That out-of-state generators may be less trustworthy than in-state generators is an insufficient reason to burden interstate commerce in solid waste disposal since a load of in-state waste is no different from a load of out-of-state waste apart from origin. Southern States Landfill, Inc. v. Georgia Dep't of Natural Resources, 801 F. Supp. 725 (M.D. Ga. 1992).

The state failed to justify its requirements that one must obtain a special solid waste handling permit prior to engaging in out-of-state waste disposal; that an out-of-state waste handler must submit a waste analysis plan, through which the operator must obtain a representative sample from every load of out-of-state waste received and perform a detailed chemical and physical analysis on the sample; that out-of-state waste be accompanied by a manifest at all times that the waste is in the state of Georgia; that $10.00 per ton be charged as a fee on out-of-state waste; and that the Environmental Protection Division of the Georgia Department of Natural Resources be authorized to inspect at random any out-of-state generators that dispose of their waste in Georgia. Southern States Landfill, Inc. v. Georgia Dep't of Natural Resources, 801 F. Supp. 725 (M.D. Ga. 1992).

The statutory provisions and the rules that apply to the regulation of out-of-state waste, or "special solid waste," specifically former O.C.G.A. § 12-8-27 and Rule 391-3-4.10, in their entirety, and O.C.G.A. § 12-8-24 and Rule 391-3-4-.02, insofar as they require a permit for the handling of special solid waste, are unconstitutional burdens upon interstate commerce. Southern States Landfill, Inc. v. Georgia Dep't of Natural Resources, 801 F. Supp. 725 (M.D. Ga. 1992) (decided prior to repeal of § 12-8-27 by Ga. L. 1993, p. 399).

Out-of-county operator had standing to challenge county ordinance on landfills because the ordinance regulated out-of-county waste brought into the county. Mullis Tree Serv., Inc. v. Bibb County, 822 F. Supp. 738 (M.D. Ga. 1993).

Landfill operator whose landfill was permitted as a landfill not regulated by a county ordinance but who had obtained special authorization from the state to accept various other types of waste, some of which was defined by the county ordinance, had standing to challenge the ordinance. Mullis Tree Serv., Inc. v. Bibb County, 822 F. Supp. 738 (M.D. Ga. 1993).

County ordinance treating differently in-county waste from out-of-county waste was subject to strict scrutiny, requiring lower court reconsideration on the issue of facial invalidity. Diamond Waste, Inc. v. Monroe County, 814 F. Supp. 83 (M.D. Ga. 1993).

Discrimination regarding transportation of refuse. - County ordinance regulating waste imported into county was unconstitutional under the commerce clause, since it treated waste coming from outside the county differently from waste originating inside the county, and the county failed to meet its burden of showing that there was some reason, apart from county of origin, to treat out-of-county waste differently from in-county waste. Diamond Waste, Inc. v. Monroe County, 828 F. Supp. 52 (M.D. Ga. 1993), aff'd, 43 F.3d 677 (11th Cir. 1994).

County policy limiting the origin of waste to within 150 miles of the county was violative of the commerce clause, despite the county's assertion that the limitation was necessary to preserve the capacity of its waste facility. The county failed to give any reason why its objectives could not be accomplished without discriminating against other counties. GSW, Inc. v. Long County, 999 F.2d 1508 (11th Cir. 1993).

State law regulating waste treatment facilities. - Statutory provisions regulating the issuance of permits and containing transportation restrictions pertaining to biomedical waste thermal treatment facilities were deemed unconstitutional as a violation of the commerce clause. Environmental Waste Reductions, Inc. v. Reheis, 887 F. Supp. 1534 (N.D. Ga. 1994).

County's one-landfill policy under solid waste management plan. - A county's one-landfill policy under its solid waste management plan was not economic protectionism violative of the Commerce Clause of the United States Constitution, because laws favoring local government could be directed toward any number of legitimate goals unrelated to protectionism; the county had concerns regarding, inter alia, the costs and financing of more than one landfill. R&J Murray, LLC v. Murray County, 282 Ga. 740 , 653 S.E.2d 720 (2007), cert. denied, 553 U.S. 1053, 128 S. Ct. 2476 , 171 L. Ed. 2 d 767 (2008).

Georgia "anti-takeover" statute enjoyed a presumption of validity under the supremacy and interstate commerce clauses, where it could not be established with the required degree of legal certainty that the statute denied hostile tender offers for Georgia corporations a meaningful opportunity to succeed. West Point-Pepperell, Inc. v. Farley, Inc., 711 F. Supp. 1096 (N.D. Ga. 1989).

4. Power of State to Tax

Validity of tax on imports. - Where commodity imported into state has come to rest and become part of common mass of property in state, a nondiscriminatory tax by state upon it, or upon its sale or use, is valid. Wright v. Fulton County, 169 Ga. 354 , 150 S.E. 262 (1929).

Gasoline imported by distributor from another state but used in conduct of its business loses its interstate character and may be subjected to an excise tax consistently with commerce clause, although it remains in original packages in which it is imported. Wright v. Fulton County, 169 Ga. 354 , 150 S.E. 262 (1929).

Mere privilege of engaging in interstate commerce is not derived from the state and cannot be conditioned by a state upon procuring a license or paying a tax. Johnson Transf. & Freight Lines v. Perry, 47 F.2d 900 (N.D. Ga. 1931).

Control of use of improved roads. - The state may license or refuse to license, may condition or charge for, the use of its improved roads, when they are turned from their common uses and purposes to the carrier's business, since interstate carrier has no better right than any other to use the state's improved highways without its consent, or without paying for it. Johnson Transf. & Freight Lines v. Perry, 47 F.2d 900 (N.D. Ga. 1931).

Certificate of public convenience and necessity, with a reasonable fee therefor, and an annual license fee for trucks, are legally demandable by state as a nondiscriminatory prerequisite for use of highways for carrier purposes, even though the commerce involved is wholly interstate. Johnson Transf. & Freight Lines v. Perry, 47 F.2d 900 (N.D. Ga. 1931).

Tax on proceeds of interstate commerce. - It is a burden on interstate commerce for a state to tax proceeds of interstate commerce, and a tax by a state upon the gross receipts of goods sold in interstate commerce is a tax on interstate commerce and is contrary to U.S. Const., art. I, sec. VIII, cl.3. American Mills Co. v. Doyal, 46 Ga. App. 236 , 167 S.E. 312 (1933).

Highway users subject to state regulation. - Highways are public property and users of them, although engaged exclusively in interstate commerce, are subject to regulation by state to ensure safety and convenience and conservation of the highways, and may be required to contribute to their cost and upkeep. Common carriers for hire, who make the highways their place of business, may properly be charged an extra tax for such use. Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm'n, 179 Ga. 431 , 176 S.E. 487 (1934), aff'd, 295 U.S. 285, 55 S. Ct. 709 , 79 L. Ed. 1439 (1935).

To sustain a charge by the state for the use of or privilege of using its roads for interstate transportation, it must affirmatively appear that the charge is exacted as compensation or to pay the cost of policing its highways. Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U.S. 72, 59 S. Ct. 435 , 83 L. Ed. 495 (1939).

Validity of tax on interstate carriers for highway use. - While state may not tax privilege of engaging in interstate commerce, it may impose upon motor vehicles engaged exclusively in interstate commerce a charge, as compensation for use of public highways, which is a fair contribution to the cost of constructing and maintaining them and of regulating the traffic thereon. As such a tax is a direct burden on interstate commerce, it cannot be sustained unless it appears, in some way, that it is levied only as compensation for use of the highways or to defray the expense of regulating motor traffic. This may be indicated by the nature of the imposition, such as a mileage tax directly proportioned to highway use, by the express allocation of the proceeds of the tax to highway purposes, or otherwise. Where it is shown that the tax is so imposed, it will be sustained, unless the taxpayer shows that it bears no reasonable relation to the privilege of using the highways or is discriminatory; but the mere fact that the tax falls upon one who uses the highway is not enough to give it presumptive validity. Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm'n, 179 Ga. 431 , 176 S.E. 487 (1934), aff'd, 295 U.S. 285, 55 S. Ct. 709 , 79 L. Ed. 1439 (1935).

Validity of regulation requiring permit and payment of tax from exclusively interstate carriers. - State regulation providing that, before operating over state highways, common motor carrier shall apply for and obtain certificate or permit from state commission and shall pay an extra tax for maintenance and repair of the highways and for administration and enforcement of the laws governing their use, is constitutional though applied to carriers engaged exclusively in interstate commerce. That the tax so exacted is not all used for maintenance and repair of the highways, but some of it for defraying expenses of the commission for administration and enforcement and some for other purposes, is no concern of the taxpayer, it being assessed for a proper purpose and not unreasonable in amount. Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm'n, 179 Ga. 431 , 176 S.E. 487 (1934), aff'd, 295 U.S. 285, 55 S. Ct. 709 , 79 L. Ed. 1439 (1935).

Validity of tax on corporate income derived from interstate commerce. - Fact that sources of tax imposed on corporation organized under laws of Delaware and domesticated under laws of Georgia incidentally involve interstate commerce transactions in computing the taxable net income of taxpayer does not contravene the commerce clause. Montag Bros. v. State Revenue Comm'n, 50 Ga. App. 660 , 179 S.E. 563 (1935), aff'd, 182 Ga. 568 , 186 S.E. 558 (1936).

Validity of municipal tax on operation of radio broadcasting station. - Business of radio broadcasting of programs, some originating in other states and transmitted to broadcasting station in this state by wire, and others originating locally, to listeners in this state and other states, is interstate commerce, and is of such a nature that the business of broadcasting such programs to listeners in this state cannot be discontinued without withdrawing the broadcasting of such programs from listeners in other states. A municipal tax on privilege of operating or the business of operating a radio broadcasting station of the nature described is invalid as a burden on interstate commerce. City of Atlanta v. Southern Broadcasting Co., 184 Ga. 9 , 190 S.E. 594 (1937).

State has power to tax income of its resident and domestic corporations derived from transactions both within and without state, where there is no discrimination against interstate commerce either in the admeasurement of the tax or in the means adopted for the enforcing of it. State Revenue Comm'n v. Edgar Bros. Co., 185 Ga. 216 , 194 S.E. 505 (1937), appeal dismissed, 303 U.S. 626, 58 S. Ct. 761 , 82 L. Ed. 1088 (1938).

Taxation of income of nonresidents as burden on interstate commerce. - As to nonresidents, income tax may be levied upon income received from property within state, and fact that it may require activities of skill and management outside state to bring the income to fruition does not, by reason of the commerce clause, deprive the taxing state of jurisdiction to tax income which arises within its borders, as to nonresidents doing business in a state and whose business is of a unitary character, a tax may be levied based upon the entire net income, but apportioned to that part of the net income attributable to business done in the taxing state, where the enforcement of such tax is left to the ordinary means of collecting taxes. State Revenue Comm'n v. Edgar Bros. Co., 185 Ga. 216 , 194 S.E. 505 (1937), appeal dismissed, 303 U.S. 626, 58 S. Ct. 761 , 82 L. Ed. 1088 (1938).

Validity of maintenance tax imposed on carriers for use of highways. - Former Code 1933, Ch. 92-29 (see O.C.G.A. Ch. 10, T. 48), which imposes a maintenance tax on the operation of motor buses, trucks, and trailers upon the public roads of this state, in addition to any and all other taxes, licenses, or registration fees required, for the privilege of using the highways of the state, the entire amount of the tax to be allocated for the construction and maintenance of public highways, is not violative of the commerce clause nor does it violate the privileges and immunities clause of U.S. Const., amend. 14. Dixie-Ohio Express Co. v. State Revenue Comm'n, 186 Ga. 228 , 197 S.E. 887 (1938), aff'd, 306 U.S. 72, 59 S. Ct. 435 , 83 L. Ed. 495 (1939).

It is elementary that state may not impose a tax on privilege of engaging in interstate commerce. Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U.S. 72, 59 S. Ct. 435 , 83 L. Ed. 495 (1939).

Imposition of charge for use of special facilities furnished by state. - If a state at its own expense furnishes special facilities for the use of those engaged in commerce, interstate as well as domestic, it may exact compensation therefor. Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U.S. 72, 59 S. Ct. 435 , 83 L. Ed. 495 (1939).

Validity of tax on privilege of possessing cigarettes. - Cigarette tax levied not upon the privilege of receiving cigarettes in this state, but rather upon the privilege of retaining, keeping, holding, or possessing them for personal use after they have been received, acquired, or brought into this state, is not violative of the commerce clause. Head v. Cigarette Sales Co., 188 Ga. 452 , 4 S.E.2d 203 (1939).

Excise tax which effects protectionism is invalid. - An excise tax provision whose purpose and effect is simple economic protectionism is virtually per se invalid under the commerce clause. James B. Beam Distilling Co. v. State, 259 Ga. 363 , 382 S.E.2d 95 (1989), rev'd on other grounds, 501 U.S. 529, 111 S. Ct. 2439 , 115 L. Ed. 2 d 481 (1991), aff'd, 263 Ga. 609 , 437 S.E.2d 782 (1993).

Nondiscriminatory ad valorem tax. - Commerce clause does not exempt either tangible or intangible property from nondiscriminatory ad valorem tax by state, nor would it matter that the same intangibles might also be subject to taxation in state of company's domicile. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495 , 19 S.E.2d 396 (1942), later appeal, 201 Ga. 84 , 38 S.E.2d 786 (1946).

Commerce clause does not exempt either tangible or intangible property from nondiscriminatory ad valorem tax by municipality. Parke, Davis & Co. v. City of Atlanta, 200 Ga. 296 , 36 S.E.2d 773 (1946).

Taxation of domestic corporate income derived from interstate commerce. - A state, in levying a general income tax upon gains and profits of domestic corporation, may include in the computation the net income derived from transactions in interstate commerce without contravening the commerce clause, where there is no discrimination against interstate commerce either in the admeasurement of the tax or in the means adopted for enforcing it. Parke, Davis & Co. v. Cook, 198 Ga. 457 , 31 S.E.2d 728 (1944), appeal dismissed, 323 U.S. 681, 65 S. Ct. 436 , 89 L. Ed. 552 (1945).

Merchant's tax on nonresidents. - State is not precluded by commerce clause from imposing merchant's tax upon nonresident manufacturing corporation which has selected a city of that state as a distributing point, and has secured a local transfer company to take charge of its products when shipped to that point, assort them, store them in warehouse, and make delivery in original packages to customers of manufacturer, either as expressly directed by it, or under general directions in favor of its recognized and approved customers whose names are furnished to transfer company, since, under such circumstances, the goods, when stored in warehouse, are no longer in transit but have reached their destination and are held in the state for sale. Parke, Davis & Co. v. Cook, 198 Ga. 457 , 31 S.E.2d 728 (1944), appeal dismissed, 323 U.S. 681, 65 S. Ct. 436 , 89 L. Ed. 552 (1945).

Taxation of corporate income derived from unsolicited orders from outside state. - Before any part of income received by corporations having property or doing business in state can lawfully escape Georgia tax law, it must appear that such part was derived from property owned or business done outside state. Income derived by corporation from unsolicited orders received by it from outside state cannot, under the fourteenth amendment and the commerce clause, be taxed elsewhere than in state. State v. Coca-Cola Bottling Co., 214 Ga. 316 , 104 S.E.2d 574 (1958).

Commerce clause gives exclusive power to Congress to regulate interstate commerce, and its failure to act on the subject in area of taxation nevertheless requires that interstate commerce shall be free from any direct restrictions or impositions by the states. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S. Ct. 357 , 3 L. Ed. 2 d 421 (1959);(decided under prior law).

Tax on net income from interstate commerce, as distinguished from tax on privilege of engaging in interstate commerce, does not conflict with commerce clause. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S. Ct. 357 , 3 L. Ed. 2 d 421 (1959);(decided under prior law).

Former Code 1933, § 92-3101 et seq. (see O.C.G.A. Art. 2, Ch. 7, T. 48) does not offend the due process clause or the commerce clause. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316 , 116 S.E.2d 293 (1960).

Taxation of an airline sale of food places no burden on interstate commerce such as would offend commerce clause if it is merely a tax due to a local transaction, the sale of the meal. Undercofler v. Eastern Air Lines, 221 Ga. 824 , 147 S.E.2d 436 (1966).

No state can tax the privilege of doing interstate business, as that is within the protection of the commerce clause and subject to the power of Congress; but the mere fact that property is used for interstate commerce or has come into owner's possession as a result of interstate commerce does not diminish the protection which he may draw from a state to the upkeep of which he may be asked to bear his fair share. Independent Publishing Co. v. Hawes, 119 Ga. App. 858 , 168 S.E.2d 904 (1969).

No relief from just tax burden. - It is not the purpose of the commerce clause to relieve those engaged in interstate commerce of their just share of state tax burdens, merely because an incidental or consequential effect of the tax is an increase in the cost of doing the business. Independent Publishing Co. v. Hawes, 119 Ga. App. 858 , 168 S.E.2d 904 (1969); Chattanooga Glass Co. v. Strickland, 244 Ga. 603 , 261 S.E.2d 599 (1979).

Taxation by states of property shipped interstate, before its movement begins or after it ends, is not forbidden by U.S. Const., art. I, sec. VIII, cl. 3. Independent Publishing Co. v. Hawes, 119 Ga. App. 858 , 168 S.E.2d 904 (1969).

Validity of use tax on interstate goods at rest. - Things acquired or transported in interstate commerce may be subjected, when once they are at rest, to a nondiscriminatory state tax upon use or enjoyment. Independent Publishing Co. v. Hawes, 119 Ga. App. 858 , 168 S.E.2d 904 (1969).

Test for validity of tax affecting interstate commerce. - A state is free to pursue its own fiscal policies, unembarrassed by the Constitution, if, by the practical operation of a tax, the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred by the fact of being an orderly, civilized society. The sole constitutional test is whether the state has given anything for which it can ask return. Independent Publishing Co. v. Hawes, 119 Ga. App. 858 , 168 S.E.2d 904 (1969).

Nondiscriminatory ad valorem property taxes do not interfere with the free flow of imported goods among the states. Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S. Ct. 535 , 46 L. Ed. 2 d 495 (1976).

Underground storage tanks. - The participation fee provided for in O.C.G.A. § 12-13-10 does not constitute an impermissible burden on interstate commerce, in violation of U.S. Const., art. I, sec. VIII, and art. VI. Luke v. Georgia Dep't of Natural Resources, 270 Ga. 647 , 513 S.E.2d 728 (1999).

Use tax on personalty at rest not a tax on operators of interstate commerce. - A tax on privilege of using items of tangible personal property after they have come to rest in a state and commerce is at an end, is not a tax on the operators of interstate commerce. Ingalls Iron Works Co. v. Chilivis, 237 Ga. 479 , 228 S.E.2d 866 (1976), appeal dismissed, 429 U.S. 1081, 97 S. Ct. 1086 , 51 L. Ed. 2 d 528 (1977).

Implementation of hotel/motel tax. - A statute creating special districts for the purpose of implementing a hotel/motel tax did not violate the commerce clause. Youngblood v. State, 259 Ga. 864 , 388 S.E.2d 671 (1990).

To establish that charge levied against interstate carrier imposes an impermissible burden on interstate commerce, the complaining party must show that the charge: (1) discriminates against interstate commerce in favor of intrastate commerce; (2) is imposed on the privilege of doing interstate business as distinguished from being imposed for the use of facilities provided by the state; or (3) exceeds fair compensation to the state. Southern Airways, Inc. v. City of Atlanta, 428 F. Supp. 1010 (N.D. Ga. 1977).

Amount, rather than formula, of charge determinative of fairness. - In determining whether charges for lease of space at city airport are excessive in comparison with government benefit conferred and hence constitute an impermissible burden on interstate commerce, one must focus on amount of charge rather than its formula. If amount of charge levied on interstate carrier is based on some fair approximation of use or privilege for use, it does not impose an impermissible burden upon interstate commerce. Southern Airways, Inc. v. City of Atlanta, 428 F. Supp. 1010 (N.D. Ga. 1977).

Taxation of interstate commerce does not per se violate commerce clause principles. Chattanooga Glass Co. v. Strickland, 244 Ga. 603 , 261 S.E.2d 599 (1979).

Apportionment of property tax. - Since the bus company submitted evidence that some of its buses had acquired a tax situs in a state other than Georgia, the United States Constitution's commerce clause required that Georgia's ad valorem tax on property engaged in interstate commerce, such as the bus company's buses, be apportioned; accordingly, the bus company was entitled to have the ad valorem tax assessed on its bus fleet apportioned. Fulton County Bd. of Tax Assessors v. Harmon Bros. Charter Serv., 261 Ga. App. 534 , 583 S.E.2d 179 (2003).

Coining of Money and Regulation of Legal Tender

Mint has no power to mint coins unless it has been authorized to do so by Congress. Mesaros v. United States, 845 F.2d 1576 (Fed. Cir. 1988).

Requirement that wrecker services accept checks and credit cards does not violate U.S. Const., art. I, sec. VIII since the regulation does not require a wrecker service to accept something other than legal tender to discharge a debt. Porter v. City of Atlanta, 259 Ga. 526 , 384 S.E.2d 631 (1989), cert. denied, 494 U.S. 1004, 110 S. Ct. 1297 , 108 L. Ed. 2 d 474 (1990).

A city code section which makes it unlawful for a wrecker service to refuse to accept checks and major credit cards is constitutional, and is not ultra vires the home rule powers conferred by O.C.G.A. § 36-35-6(a) . Upton v. City of Atlanta, 260 Ga. 250 , 392 S.E.2d 244 (1990).

Check backed by lawful money. - Since both Congress and the courts have found federal reserve notes to be legal tender, the court found the check given to homebuyer by a mortgage company was backed by and redeemable in federal reserve notes, coins and lawful money of the United States. Strickland v. A Mtg. Co., 179 Bankr. 979 (Bankr. N.D. Ga. 1995).

Bankruptcy

Bankruptcy power of Congress. - The Constitution of the United States vests authority in Congress to establish uniform laws on the subject of bankruptcies throughout the United States, and the power of Congress is paramount in matters relating to this subject. Smith v. Folsom, 190 Ga. 460 , 9 S.E.2d 824 (1949).

Under the bankruptcy power Congress has authority to impair obligation of contracts, but may do so only when property is not, contrary to the fifth amendment, taken without due process of law. In re Philibosian, 19 F. Supp. 787 (N.D. Ga. 1937).

The impairment or modification of contract rights under the bankruptcy power granted under clause 4 is not prohibited by the fifth amendment. In re Bullington, 80 Bankr. 590 (Bankr. M.D. Ga. 1987), aff'd, 89 Bankr. 1010 (M.D. Ga. 1988), 878 F.2d 354 (11th Cir. 1989).

Although the United States Constitution grants Congress the power to establish bankruptcy laws, Art. I, Sec. VIII, cl. 4, that power is subject to the fifth amendment, which proscribes taking private property for public use without just compensation. GMAC v. Johnson, 145 Bankr. 108 (Bankr. S.D. Ga. 1992), rev'd on other grounds, 165 Bankr. 524 (S.D. Ga. 1994).

Due process met where noteholder deprived of property through bankruptcy proceedings. - An unsecured note is property whose value rests wholly in the debtor's obligation to pay it and in the right to seize his property to satisfy a judgment on the note. The holder may be deprived of his property by a process of bankruptcy resulting in the bankrupt's discharge without any payment, and due process of law is not lacking. In re Philibosian, 19 F. Supp. 787 (N.D. Ga. 1937).

Nullification of rights of secured creditor through bankruptcy. - It is not clear that to deprive a secured creditor of his security through bankruptcy deprives him of property any more than to deprive the unsecured creditor of his debt does, or that the process of bankruptcy is any less a due process of law in the one case than in the other. The true reason why bankruptcy may not nullify a security is not the fifth amendment but the fact that it never has. It lies in the limitations inherent in the bankruptcy power. In re Philibosian, 19 F. Supp. 787 (N.D. Ga. 1937).

Delay of realization on security within bankruptcy power. - To delay realization on a security, especially when the security is ample and secured creditor will realize his debt in full or at least the full present value of the security with compensation for the delay, and there are good reasons for the delay, all adjudged by a court, is not unprecedented or unreasonable and is within bankruptcy power. In re Philibosian, 19 F. Supp. 787 (N.D. Ga. 1937).

Extent of bankruptcy power. - Although it is true that the exercise of the power to draft laws on the subject of bankruptcies is subject to the strictures of the fifth amendment, the appropriate use of that power by Congress will not be found unconstitutional simply because it upsets previously settled expectations. Joyner v. Golden Dome Inv. Co., 7 Bankr. 596 (M.D. Ga. 1980).

Administration of decedent's estates. - Congress has the power to create bankruptcy jurisdiction over the administration of decedents' estates. Goerg v. Parungao, 844 F.2d 1562 (11th Cir. 1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 850 , 102 L. Ed. 2 d 981 (1989).

That the Bankruptcy Code's definition of "debtor" excludes decedents' estates does not mean that such exclusion applies in the context of a proceeding ancillary to a foreign proceeding pursuant to 11 U.S.C. § 304. Goerg v. Parungao, 844 F.2d 1562 (11th Cir. 1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 850 , 102 L. Ed. 2 d 981 (1989).

Power to discharge debtor. - The power to establish uniform laws on bankruptcy throughout the country includes the power to discharge the debtor from his contracts and legal liabilities, as well as to distribute his property. Caruthers v. Fleet Fin., Inc., 87 Bankr. 723 (Bankr. N.D. Ga. 1988).

Power to cure and reinstate accelerated debts. - The Constitution of the United States empowered Congress to establish "uniform Laws on the subject of Bankruptcies throughout the United States," and laws enacted by Congress pursuant to this grant of authority are supreme to those of the states. Bankruptcy provisions allowing the opportunity to cure and reinstate accelerated debts and bankruptcy provisions governing the payment of secured creditors' attorney's fees are no exception to the supremacy clause. In re Centre Court Apts., Ltd., 85 Bankr. 651 (Bankr. N.D. Ga. 1988).

No district or bankruptcy court has any exercisable jurisdiction in bankruptcy cases, matters, or proceedings after December 24, 1982, and a district court cannot confer jurisdiction on a bankruptcy court by adoption of an emergency rule. Williamson v. General Fin. Co., 28 Bankr. 276 (Bankr. M.D. Ga. 1983).

Bankruptcy judges cannot decide peripheral state common-law claims. - Non-Article III bankruptcy judges cannot constitutionally be vested with jurisdictional power to decide state common-law claims brought pursuant to the Bankruptcy Act and related only peripherally to a bankruptcy case adjudicated under federal law. Pettigrew v. Kutak, Rock & Huie, 30 Bankr. 989 (N.D. Ga. 1983).

Patents and Copyrights

Production to which the protection of copyright may be accorded is the property of the author and not of the United States, but the copyright is the creature of federal statutes passed in the exercise of the power vested in Congress by U.S. Const., art. I, sec. VIII, cl. 8. Fox Film Corp. v. Doyal, 286 U.S. 123, 52 S. Ct. 546 , 76 L. Ed. 1010 (1932).

Copyrights are not to be deemed instrumentalities of federal government and hence immune from state taxation. The mere fact that a copyright is property derived from a grant by the United States is insufficient to support the claim of exemption from state taxation. Fox Film Corp. v. Doyal, 286 U.S. 123, 52 S. Ct. 546 , 76 L. Ed. 1010 (1932).

Generally, right to copyright works of science and the arts is obtained from Constitution of United States. Cartin v. Boles, 155 Ga. App. 248 , 270 S.E.2d 799 (1980).

United States Congress has preempted field as to statutory copyrights. Cartin v. Boles, 155 Ga. App. 248 , 270 S.E.2d 799 (1980).

Patent rights exist only by virtue of federal statute. Monumental Properties of Ga., Inc. v. Frontier Disposal, Inc., 159 Ga. App. 35 , 282 S.E.2d 660 (1981).

Trademark registration that has achieved incontestable status under 15 U.S.C. § 1065 is still subject to attack based on functionality. Pudenz v. Littlefuse, Inc., 177 F.3d 1204 (11th Cir. 1999).

General ideas (theme, plot, etc.) are in public domain and cannot be copyrighted. Cartin v. Boles, 155 Ga. App. 248 , 270 S.E.2d 799 (1980).

In literary works, it is not the novelty but the originality of the wording that is protected by copyright. Cartin v. Boles, 155 Ga. App. 248 , 270 S.E.2d 799 (1980).

Test of pirating, infringement, or literary larceny concerns originality and whether the production is the result of independent labor or copying others. Similarities, historical facts, and incidental details which are necessary to the environment or setting of an action are not material of which copyrightable originality consists. Cartin v. Boles, 155 Ga. App. 248 , 270 S.E.2d 799 (1980).

If access to the work is admitted, then inquiry as to infringement concerns what, if anything, defendant appropriated. Cartin v. Boles, 155 Ga. App. 248 , 270 S.E.2d 799 (1980).

At common law, author has property right in the unpublished manuscript and can obtain redress against anyone who deprives the author of it by infringement or against anyone who obtains a copy and endeavors to realize a profit by its publication through plagiarism or otherwise. Cartin v. Boles, 155 Ga. App. 248 , 270 S.E.2d 799 (1980).

Property right in unpatented product is only exclusive until it becomes property of public by being placed on the market. Monumental Properties of Ga., Inc. v. Frontier Disposal, Inc., 159 Ga. App. 35 , 282 S.E.2d 660 (1981).

Charge on "common law patent" is erroneous statement of law. Monumental Properties of Ga., Inc. v. Frontier Disposal, Inc., 159 Ga. App. 35 , 282 S.E.2d 660 (1981).

Similarity to substantial portion of work is infringement. - Infringement of a copyright may be found where the similarity relates to matter which constitutes a substantial portion of the copyright holder's work - i.e., matter which is of value to the copyright holder. United States v. O'Reilly, 794 F.2d 613 (11th Cir. 1986).

Copyright in a compilation does not prohibit the copying of pre-existing material that is in the compilation. CNN, Inc. v. Video Monitoring Serv. of Am., Inc., 940 F.2d 1471 (11th Cir. 1991), appeal dismissed, 959 F.2d 188 (11th Cir. 1992).

Videotaping and selling news reports. - The enforcement of the copyright statute by a television station against a business which videotaped its news broadcasts and sold the tapes to the subjects of the news reports did not violate the copyright clause. Pacific & S. Co. v. Duncan, 744 F.2d 1490 (11th Cir. 1984), cert. denied, 471 U.S. 1004, 105 S. Ct. 1867 , 85 L. Ed. 2 d 161 (1985).

Typical television newscast may be copyrightable in its entirety as a compilation only. CNN, Inc. v. Video Monitoring Serv. of Am., Inc., 940 F.2d 1471 (11th Cir. 1991), appeal dismissed, 959 F.2d 188 (11th Cir. 1992).

Fair use of cable television newscasts. - Any injunction that would prevent the copying of a cable television network's newscasts "in any part" would be inconsistent with the federal Copyright Act, particularly its fair use provisions, and both the copyright clause and the first amendment to the Constitution. CNN, Inc. v. Video Monitoring Serv. of Am., Inc., 940 F.2d 1471 (11th Cir. 1991), appeal dismissed, 959 F.2d 188 (11th Cir. 1992).

War-Making Powers

Compensation for military service. - Under the war-making power conferred by Constitution, Congress is empowered to adopt any means which it may deem necessary to contribute to the success of the undertaking. From this it follows that Congress is authorized to grant allotments, bounties, pensions, and other rewards in return for military service, and may prescribe, as a condition upon which this compensation shall be given, a provision that the federal compensation for military service shall be exempt from all taxation, including state taxation. Rucker v. Merck, 172 Ga. 793 , 159 S.E. 501 (1931).

In exercise of its exclusive prerogative to wage war, federal government cannot be interfered with by state legislation. City of Atlanta v. Stokes, 175 Ga. 201 , 165 S.E. 270 (1932).

Even though power of state to tax generally is supreme, that power may not be used to hamper, hinder, annoy, harass, and impede the federal government in the exercise of its unlimited power to carry on war. City of Atlanta v. Stokes, 175 Ga. 201 , 165 S.E. 270 (1932).

Power of Congress to exempt compensation for war veterans from state taxation. - Where Congress enacts legislation declaring that certain compensation for war veterans shall be exempt from all taxation, Congress is acting within its war powers and the exemption applies to state taxation, including taxation of property purchased by veterans with funds declared tax exempt by Congress. City of Atlanta v. Stokes, 175 Ga. 201 , 165 S.E. 270 (1932).

Lack of formal declaration of war by Congress is without legal effect on validity of court martial jurisdiction during such undeclared war. Torres v. Connor, 329 F. Supp. 1025 (N.D. Ga. 1970).

Regulation of Armed Forces

Although trial by military tribunal deprives one of trial by jury and other constitutional rights, it is not unconstitutional. Military jurisdiction, however, is restricted to the narrowest limits consistent with the power granted Congress in U.S. Const., art. I, sec. VIII, cl. 14. Torres v. Connor, 329 F. Supp. 1025 (N.D. Ga. 1970).

Lack of formal declaration of war by Congress is without legal effect on validity of court martial jurisdiction during such undeclared war. Torres v. Connor, 329 F. Supp. 1025 (N.D. Ga. 1970).

Only within narrow limits and where first amendment rights are involved will federal courts enjoin state or military prosecution. Torres v. Connor, 329 F. Supp. 1025 (N.D. Ga. 1970).

U.S. Const., art. I, sec. VIII, cl. 14 is grant of legislative power. - Express authority of U.S. Const., art. I, sec. VIII, cl. 14 to make rules for government and regulation of land and naval forces is a grant of purely legislative power, and is the prime source of the establishment of the system of military justice. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505 , 47 L. Ed. 2 d 760 (1976).

Exclusive Jurisdiction

Change of domicile by military personnel. - U.S. Const., art. I, sec. VIII, cl. 17, properly construed, does not altogether deny a soldier the right enjoyed by others of changing his domicile from one state to another because he is stationed on a government reservation. He should not unnecessarily be thus discriminated against and limited in matters not connected with his status as a soldier. Dicks v. Dicks, 177 Ga. 379 , 170 S.E. 245 (1933).

Exclusive legislation has been construed to mean exclusive jurisdiction in the sense of exclusive sovereignty. Mater v. Holley, 200 F.2d 123 (5th Cir. 1952).

Nothing in the Constitution of United States can confer upon Georgia Legislature an iota of power to legislate for Georgia. - This court rejects in toto all argument of counsel that U.S. Const., art. I, sec. VIII, cl. 17 imposes or was intended to impose any duty whatever upon any state legislature to act. Its sole intent and meaning are to define the jurisdiction that will result if and when a state legislature by a valid law cedes jurisdiction or consents to purchase. Power does not lie in the federal government to invest the Legislature of Georgia with authority to legislate for this sovereign state, and any attempt to do so, whether by constitutional provision, congressional Act, or judicial decision, would utterly fail. No such attempt has been made by either the Constitution or Congress, and this court does not construe any court decision to constitute such an attempt. IBM Corp. v. Evans, 213 Ga. 333 , 99 S.E.2d 220 (1957).

Surrender of state sovereignty. - U.S. Const., art. I, sec. VIII, cl. 17 declares that when cession or consent by a state legislature has been given, exclusive legislative power vests in the United States. This court believes the sounder reasoning to the conclusion would be that no legislature, without express constitutional power, can surrender the state's sovereignty. Therefore, the attempt to surrender it is effective only to the extent of allowing the United States to own and use the land free from state interference by taxes or otherwise. Individuals, however, cannot be given such privileges. IBM Corp. v. Evans, 213 Ga. 333 , 99 S.E.2d 220 (1957).

United States penitentiary is "needful building" within meaning of U.S. Const., art. I, sec. VIII, cl. 17. Gainey v. United States, 324 F.2d 731 (5th Cir.), cert. denied, 374 U.S. 842, 83 S. Ct. 1897 , 10 L. Ed. 1062 (1963).

Nature of jurisdiction over lands acquired other than by purchase with state's consent. - Where lands are acquired by the United States within the limits of a state in any way other than by purchase with state's consent, the United States will hold the lands subject to this qualification: that if forts, arsenals, or other public buildings are erected upon such lands for the uses of the federal government, such buildings and their appurtenances, as instrumentalities for the execution of its powers, will be free from any such interference and jurisdiction of the state as would destroy or impair their effective use for the purposes designed. Brittain v. Reid, 220 Ga. 794 , 141 S.E.2d 903 (1965).

Nature of federal possession of land acquired without state's consent. - The federal government may, without consent of the state, acquire land within a state by condemnation or purchase, but without state consent the United States does not obtain the benefits of U.S. Const., art. I, sec. VIII, cl. 17 and its possession is that of an ordinary proprietor. DeKalb County v. Henry C. Beck Co., 382 F.2d 992 (5th Cir. 1967).

Commerce

Transportation of gambling devices in interstate commerce. - It is illegal under the laws of this state to transport gambling devices within this state in intrastate commerce; however, this state does not attempt to exercise jurisdiction over the transportation of gambling devices in interstate commerce. 1960-61 Op. Att'y Gen. p. 113.

Imposition of state safety inspection standards on interstate busses registered in state. - Any reasonable safety inspection standards which this state might wish to impose upon interstate busses registered in this state would be permissible under U.S. Const., art. I, sec. VIII, cl. 3 of this section. 1972 Op. Att'y Gen. No. 72-33.

Use tax on "cost price" does not violate commerce clause. - Imposition of use tax upon "cost price," as defined by paragraph (2) of O.C.G.A. § 48-8-2 , does not violate commerce clause, as it treats taxpayers printing own material out-of-state and taxpayers printing own material within the state equally. 1981 Op. Att'y Gen. No. 81-93.

Exclusive Jurisdiction

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U.S. Const., art. I, sec. VIII, cl. 17 gives to Congress the exclusive right of legislation over property or areas within jurisdiction of state where the consent of the legislature of the state is given. 1945-47 Op. Att'y Gen. p. 49.

State authority having power to cede land and jurisdiction to federal government. - The only authority of the state which has power to consent to acquisition of property within state by federal government so as to deprive state of jurisdiction over same is the General Assembly. 1945-47 Op. Att'y Gen. p. 49.

Building safety counsel has no right or duty to inspect: (a) properties of the federal government such as military reservations; or (b) properties, such as war housing projects, owned by the government but leased to private persons for nongovernmental uses. 1948-49 Op. Att'y Gen. p. 394.

Means of acquiring jurisdiction. - Under U.S. Const., art. I, sec. VIII, cls. 17 and 18, the United States may gain exclusive jurisdiction over lands acquired within a state either by purchase with the consent of the state legislature or by cession of jurisdiction by the state legislature to the United States and acceptance of the cession by Congress. 1952-53 Op. Att'y Gen. p. 8; 1963-65 Op. Att'y Gen. p. 496.

Validity of reservations of authority by state over ceded or purchased territory. - The state legislature, in its Act consenting to purchase by the United States or ceding jurisdiction to the United States, may reserve such authority over the ceded territory as will not be incompatible with the exercise of exclusive jurisdiction by the United States. Reservations of the right to serve process and to resume full jurisdiction if the United States ceases to own the land are not incompatible with the federal requirements. Regulating public utilities in any ceded territory is not incompatible with U.S. Const., art. I, sec. VIII, cl. 17, and the Act effectively cedes jurisdiction over lands used by the Department of Defense. The reservation of the right to administer the criminal laws of the state over such area or the reservation of civil and criminal jurisdiction over persons and citizens within ceded territory, however, is incompatible with the transfer of exclusive jurisdiction. 1952-53 Op. Att'y Gen. p. 8.

Military bases. - Fort Stewart remains in the exclusive jurisdiction of the federal government and the Juvenile Court of Liberty County does not have jurisdiction over juveniles who have allegedly committed delinquent acts on the military base. 1994 Op. Att'y Gen. No. U94-10.

General Consideration

Cited in Edwards v. Smyly, 170 Ga. 487 , 153 S.E. 184 (1930); Consolidated Utils. Co. v. Commissioner, 84 F.2d 548 (5th Cir. 1936); Williams v. Ragsdale, 209 Ga. 274 , 53 S.E.2d 339 (1949); St. Clair v. Hiatt, 83 F. Supp. 585 (N.D. Ga. 1949); Sinclair v. Hiatt, 86 F. Supp. 828 (N.D. Ga. 1949); Sweeney v. Hiatt, 89 F. Supp. 416 (N.D. Ga. 1949); Compagna v. Hiatt, 100 F. Supp. 74 (N.D. Ga. 1951); Ivy v. Ferguson, 82 Ga. App. 600 , 62 S.E.2d 191 (1950); United States v. Raines, 189 F. Supp. 121 (M.D. Ga. 1960); Bolton v. State, 220 Ga. 632 , 140 S.E.2d 866 (1965); Johnson v. State, 134 Ga. App. 67 , 213 S.E.2d 170 (1975); Bell v. Bell, 237 Ga. 464 , 228 S.E.2d 850 (1976); Centrif Air Mach. Co. v. Chilivis, 239 Ga. 253 , 236 S.E.2d 606 (1977); High Ol' Times, Inc. v. Busbee, 449 F. Supp. 364 (N.D. Ga. 1978); Joyner v. Golden Dome Inv. Co., 7 Bankr. 596 (Bankr. M.D. Ga. 1980); High Ol' Times, Inc. v. Busbee, 515 F. Supp. 176 (N.D. Ga. 1980); Soroa-Gonzales v. Civiletti, 515 F. Supp. 1049 (N.D. Ga. 1981); High Ol' Times, Inc. v. Busbee, 673 F.2d 1225 (11th Cir. 1982); Chancey v. State, 256 Ga. 415 , 349 S.E.2d 717 (1986).

Bill of Attainder

Statutory incentive program not bill of attainder. - Federal statutory incentive for physicians to become "participating" Medicare physicians (providing Medicare enrollees with lists of the specialties and phone numbers of participating physicians, more efficient processing of claims and the recognition of increased billing charges to non-Medicare patients in future calculations of participating physicians' "customary" charges) and a statutory enforcement mechanism (civil fines for raising fees and/or barring nonparticipating physicians from treating Medicare patients for a period up to five years) did not constitute a bill of attainder. Whitney v. Heckler, 780 F.2d 963 (11th Cir.), cert. denied, 479 U.S. 813, 107 S. Ct. 65 , 93 L. Ed. 2 d 23 (1986).

Discovery. - The amended discovery procedure of O.C.G.A. § 17-16-1 et seq. is not a bill of attainder, which refers to legislative imposition of punishment on specific persons or on class of persons without any judicial proceeding. Stinski v. State, 281 Ga. 783 , 642 S.E.2d 1 (2007).

Removal of county commissioner from office. - Local act, which had the effect of removing a county commissioner from office before the end of the two-year term to which she had been appointed to fill a vacancy left by a deceased commissioner, was a bill of attainder prohibited by both the Georgia and United States Constitutions. Fulton v. Baker, 261 Ga. 710 , 410 S.E.2d 735 (1991).

Local deannexation statute that included the area of the city in which the mayor resided, making the mayor ineligible to hold office, was not an unconstitutional bill of attainder because it neither singled out the mayor nor punished the mayor as an officeholder. Lee v. City of Villa Rica, 264 Ga. 606 , 449 S.E.2d 295 (1994).

Federal statute on firearm possession constitutional. - Federal statute prohibiting anyone convicted of a domestic violence misdemeanor from possessing or receiving a firearm did not impose punishment in violation of the bill of attainder clause. National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998).

Habeas Corpus

Nature of writ of habeas corpus. - The great writ of habeas corpus has not been, and could not be, suspended by Congress in the absence of a rebellion or invasion. The great writ is of such antiquity that its origin is unknown, but from its inception as a writ designed to put people in jail rather than to get them out its status has been far from static. It is not subject to argument that the great writ cannot be suspended in times of peace, but the proposition is also undebatable that it ought not to be abused in times of war or peace. The right to the writ has never been absolute. The statute from 1789 until the present has required that for the writ to issue it must be "agreeable to the principles and usages of law." The petition must be in writing and under oath. Martin v. Hiatt, 174 F.2d 350 (5th Cir. 1949).

Prisoner's right to attack detainer or sentence not yet served. - Prisoners in custody under one sentence may attack a sentence which they have not yet begun to serve. A petitioner held in one state may attack a detainer lodged against him by another state. A petitioner can bring his action attacking his sentence in the court that imposed the sentence. Callahan v. State, 235 Ga. 359 , 219 S.E.2d 717 (1975).

Appointment of counsel for habeas corpus petitioner. - Since habeas corpus is not a criminal proceeding, neither the U.S. Const., amend. 6 nor the Georgia Constitution requires the appointment of counsel for a habeas corpus petitioner. Spencer v. Hopper, 243 Ga. 532 , 255 S.E.2d 1 , cert. denied, 444 U.S. 885, 100 S. Ct. 178 , 62 L. Ed. 2 d 116 (1979).

Defendant has no right to receive or spend state funds for appointment of experts or investigators in habeas corpus proceedings, including death penalty cases. Spencer v. Hopper, 243 Ga. 532 , 255 S.E.2d 1 , cert. denied, 444 U.S. 885, 100 S. Ct. 178 , 62 L. Ed. 2 d 116 (1979).

Appropriate remedy for cruel and unusual punishment. - Assuming arguendo that prisoner's allegations of mistreatment demonstrate cruel and unusual punishment, he still would not be entitled to release from prison, the appropriate remedy being to enjoin continuance of any practices or to require correction of any conditions causing him cruel and unusual punishment. Cook v. Hanberry, 596 F.2d 658 (5th Cir.), cert. denied, 442 U.S. 932, 99 S. Ct. 2866 , 61 L. Ed. 2 d 301 (1979).

Error that deprives defendant of constitutional right, unless waived according to law, may be raised on application for habeas corpus. Rachel v. State, 247 Ga. 130 , 274 S.E.2d 475 (1981).

"Intentional abandonment or withholding" doctrine obtains on a second habeas corpus petition only if petitioner has not previously presented the ground for relief in a federal habeas corpus proceeding. Fleming v. Kemp, 794 F.2d 1478 (11th Cir. 1986), cert. denied, 490 U.S. 1028, 109 S. Ct. 1764 , 104 L. Ed. 2 d 200 (1989).

Procedural limitations. - The procedural limitations of O.C.G.A. § 40-13-33(a) and (b) neither suspend the writ of habeas corpus, nor cause a court to dismiss an action for habeas without consideration of the equities presented. Rather, the statute provides that in a narrowly defined class of cases - those in which a petitioner who is not in custody seeks habeas relief from a misdemeanor traffic conviction - the petition for habeas corpus must be filed within 180 days of conviction. As such, it imposes a permissible procedural restriction on a limited group of cases. Earp v. Boylan, 260 Ga. 112 , 390 S.E.2d 577 (1990).

The federal Antiterrorism and Effective Death Penalty Act of 1996, which, inter alia, requires a habeas petitioner to obtain leave from the appellate court before filing a second habeas petition in the district court, constitutes a restraint on abuse of the habeas writ and does not "suspend" the writ in violation of clause 2 of this section. Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333 , 135 L. Ed. 2 d 827 (1996).

Ex Post Facto Laws

An ex post facto law is a retrospective criminal or penal measure that is disadvantageous to the offender because it may impose greater punishment. United States v. Reed, 924 F.2d 1014 (11th Cir. 1991).

Applicability to penal statutes only. - The ex post facto provision of the federal constitution applies only to penal statutes, and could not reach the Tort Claim's Act's provision for immunity for prison officials for negligence occurring prior to the act's enactment. Datz v. Brinson, 208 Ga. App. 455 , 430 S.E.2d 823 (1993).

Ex post facto laws affect substantive right of accused. - Upon the defendant's constitutional challenge to the retrospective application of three provisions of the Criminal Justice Act, Ga. Laws 2005, p. 20, no reversible error resulted from challenges to the closing arguments and admission of character evidence, as: (1) the former was not distinctly ruled upon by the lower court; and (2) the lower court sustained objections to the admissibility of character evidence, and, thus, the state could not introduce character evidence regarding the defendant's prior criminal convictions; moreover, a change in the number of the defendant's peremptory challenges by the Act did not affect any protected right by the application of the amended version of O.C.G.A. § 15-12-165 , as strikes were procedural and not substantive in nature. Madison v. State, 281 Ga. 640 , 641 S.E.2d 789 (2007).

Law that is merely procedural and does not add to the quantum of punishment cannot violate the ex post facto clause even if it is applied retrospectively. United States v. Reed, 924 F.2d 1014 (11th Cir. 1991).

School contract unaffected by subsequent enactment. - A contract made and indebtedness incurred by county superintendent of schools in 1918, on behalf of county board of education, for school supplies and furnishings, which were placed in schoolhouses of county and put to use by pupils thereof, was prior to enactment of Code 1933, § 32-928 (see O.C.G.A. § 20-2-504 ), and therefore is not void under such provisions, the same not being construed as being applicable to contracts made before its passage. Board of Educ. v. Southern Mich. Nat'l Bank, 184 Ga. 641 , 192 S.E. 382 (1937).

Discovery. - The amended discovery procedure of O.C.G.A. § 17-16-1 et seq. is not an ex post facto law because it affects purely procedural rights and duties. Stinski v. State, 281 Ga. 783 , 642 S.E.2d 1 (2007).

Ex post facto laws prohibited by state and federal Constitutions refer only to laws which aggravate the crime, increase the punishment, or allow conviction on a lesser or different weight of evidence, and not to those which reduce or mollify the penalty. Barton v. State, 81 Ga. App. 810 , 60 S.E.2d 173 (1950).

Even though a statute, passed after a conviction, uses the conviction as an element of a future offense, this is not an ex post facto law, because the defendant's punishment for the earlier conviction is not increased, since the statute punishes only for a future offense, and that punishment is rationally enhanced by the prior conviction. State v. Dean, 235 Ga. App. 847 , 510 S.E.2d 605 (1998).

Amendment changing retroactive effect of prior amendment. - An amendment which changed the retroactive effect of an earlier amendment to O.C.G.A. § 40-5-67.1 , the implied consent warning law, so that it applied only to stops made after the effective date of the earlier amendment, rather than to cases pending on such date, did not violate federal or state ex post facto constitutional provisions. State v. Martin, 266 Ga. 244 , 466 S.E.2d 216 (1996).

Retroactive operation of county zoning plan. - In passing a comprehensive zoning plan and amending it, whereby properties of parties were classified for use as agricultural residential district, board of county commissioners did so under the police power, and action of board in changing the use classification of defendants' property from agricultural use to that of apartment use does not deny plaintiffs equal protection of law, nor operate retroactively in violation of federal and state constitutional provisions prohibiting passage of ex post facto laws, nor does such action deny plaintiffs equal protection of law in violation of U.S. Const., amend. 14. Morgan v. Thomas, 207 Ga. 660 , 63 S.E.2d 659 (1951).

Validity of zoning ordinance. - Because plaintiff, while proceeding to zone property was pending, filed application to authorize building of filling station, and ordinance was later adopted zoning plaintiff's property for residential purposes, such ordinance was not in violation of the federal and state Constitutions as an ex post facto or retroactive law. Gay v. Mayor of Lyons, 212 Ga. 438 , 93 S.E.2d 352 (1956).

As a general rule, any law is ex post facto which is enacted after offense was committed, and which, in relation to offense or its consequences, alters the situation of the accused to his disadvantage. A statute, however, cannot be an ex post facto law if it is apparent that Legislature in enacting the statute did not make criminal an act which was innocent when done; did not aggravate an offense or change the punishment and make it greater than when it was committed; did not alter the rules of evidence and require less or different evidence than the law required at time of commission of offense; and did not deprive the accused of any substantial right or immunity he possessed at time of commission of offense. Todd v. State, 228 Ga. 746 , 187 S.E.2d 831 , answer conformed to, 125 Ga. App. 841 , 189 S.E.2d 696 (1972).

Validity of statute removing prior right. - Although it is the rule that no one has a vested right in a mere mode of procedure, so that a statute merely regulating procedure and leaving untouched all substantial protections with which existing law surrounds the person accused of crime is not within the constitutional prohibition against ex post facto laws, yet a statute is void and ineffective as related to previous offenses if it takes from the accused a substantial right given to the accused by law in force at the time to which guilt relates, and such statute cannot be sustained simply because, in a general sense, it may be said to regulate procedure. Todd v. State, 228 Ga. 746 , 187 S.E.2d 831 , answer conformed to, 125 Ga. App. 841 , 189 S.E.2d 696 (1972).

Effect of amending statute governing dates of terms of court. - Amendment of a statutory provision so as to change the dates of commencement of terms of court was not an ex post facto law as applied to defendant, who was not at any time entitled to discharge and acquittal of the offenses with which the defendant was charged. Aspinwall v. State, 201 Ga. App. 203 , 410 S.E.2d 388 (1991).

In order for statute to violate prohibition against ex post facto laws, it must affect substantive right of accused. An accused does not have a vested right in a mere mode of procedure. Eades v. State, 232 Ga. 735 , 208 S.E.2d 791 (1974).

O.C.G.A. § 17-10-1 did not implicate ex post facto concerns since an inmate could not have had a substantial right to receive probation, and the revocation of an inmate's probation did not inflict a greater punishment than was permitted at the times the offenses were committed; Jones v. State, 260 Ga. App. 401 , 579 S.E.2d 827 (2003), was overruled. Postell v. Humphrey, 278 Ga. 651 , 604 S.E.2d 517 (2004).

Validity of statute altering procedural conduct of criminal trials. - If the changes effected by enactment of a law constitute merely an alteration in conditions deemed necessary for the orderly and just conduct of criminal trials, they do not deprive defendant of any substantial personal right within meaning of constitutional prohibitions of ex post facto laws. Todd v. State, 228 Ga. 746 , 187 S.E.2d 831 , answer conformed to, 125 Ga. App. 841 , 189 S.E.2d 696 (1972).

Statute reducing peremptory strikes. - Retroactive application of O.C.G.A. § 15-12-165 's amended reduction of the number of peremptory strikes from 20 to 12 did not violate ex post facto clause, as number of peremptory challenges is solely matter of procedure. Seats v. State, 210 Ga. App. 74 , 435 S.E.2d 286 (1993).

Jury determination of sentence is not a substantive right coming within proscriptions of ex post facto laws of U.S. Const., art. I, sec. IX, cl. 3. Adkins v. State, 134 Ga. App. 507 , 215 S.E.2d 270 (1975); Mealor v. State, 134 Ga. App. 564 , 215 S.E.2d 272 (1975).

Effect of amending statute to reduce number of peremptory jury challenges. - The application to a criminal defendant of the statutory amendment reducing the number of the defendant's peremptory strikes did not violate the constitutional prohibition against ex post facto laws. Stargel v. State, 210 Ga. App. 619 , 436 S.E.2d 786 (1993).

Effect of amending statute to reduce number of impaneled jurors. - Application of the 1992 amendment to O.C.G.A. § 15-12-160 requiring the court to have 30, rather than 42, impaneled jurors from which the defense and prosecution may strike jurors did not violate the constitutional prohibition against ex post facto laws. Shuler v. State, 213 Ga. App. 790 , 446 S.E.2d 225 (1994).

Ex post facto law is one that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; or that aggravates a crime, or makes it greater than it was when committed. United States v. Brown, 555 F.2d 407 (5th Cir. 1977), appeal dismissed and cert. denied, 435 U.S. 904, 98 S. Ct. 1448 , 55 L. Ed. 2 d 494 (1978); Federal Election Comm'n v. Lance, 635 F.2d 1132 (5th Cir.), appeal dismissed, 453 U.S. 917, 101 S. Ct. 3151 , 69 L. Ed. 2 d 999 (1981).

Mail fraud convictions for conduct that started before enactment of the criminal statute and continued after the effective date thereof did not violate the ex post facto clause. United States v. Paradies, 98 F.3d 1266 (11th Cir. 1996), cert. denied, 521 U.S. 1106, 117 S. Ct. 2483 , 138 L. Ed. 2 d 992 (1997), cert. denied, 522 U.S. 1014, 118 S. Ct. 598 , 139 L. Ed. 2 d 487 (1997).

Restriction on judicial, as well as legislative, powers. - The ex post facto clause is a limitation upon the powers of the Legislature; but the principle on which the clause is based - the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties - is fundamental to our concept of constitutional liberty. As such, that right is protected against judicial action by the due process clause. An unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law which U.S. Const., art. I, sec. IX, cl. 3 forbids. United States v. Brown, 555 F.2d 407 (5th Cir. 1977), cert. denied, 435 U.S. 904, 98 S. Ct. 1448 , 55 L. Ed. 2 d 494 (1978).

Retroactive application of note to sentencing guideline. - A note to the United States Sentencing Guidelines, although it took effect after an alien had been sentenced, did not violate the ex post facto clause because the application note was added to clarify an existing guideline, and such a note does not have the force of law, as does a guideline. Thus, the note did not change the law. United States v. Adeleke, 968 F.2d 1159 (11th Cir. 1992).

Habitual violator statute allowing consideration of offenses which occurred before enactment of statute is not ex post facto. - The repetition of the criminal conduct aggravates offender's guilt and justifies heavier penalties when he is again convicted, and the penalty is imposed only for the new crime but is heavier if the offender is a habitual violator. The increased penalty is for the latest crime which is considered to be an aggravated offense because it is repetitive. Cofer v. Crowell, 146 Ga. App. 639 , 247 S.E.2d 152 (1978).

Validity of post-sentence action delaying eligibility for parole. - Although changes in a statute or regulations that are procedural or remedial in nature may apply retroactively, official post-sentence action that delays eligibility for supervised release runs afoul of the ex post facto proscription. United States ex rel. Graham v. United States Parole Comm'n, 629 F.2d 1040 (5th Cir. 1980).

Validity of statute or regulations affecting prisoner's substantive right to parole. - If the Parole Commission and Reorganization Act (18 U.S.C. § 4201 et seq.) or the regulations promulgated thereunder effectuate only a procedural change in the manner in which the Parole Commission determines prisoner's eligibility for parole, then the statute and the regulations may be applied retroactively; if, however, the statute or the regulations affect prisoner's substantive right to parole eligibility, neither can be so applied retroactively without violating the ex post facto clause. Because parole regulations were amended to provide that after an interim hearing a presumptive release date or the date of a four-year reconsideration hearing shall not be advanced except under clearly exceptional circumstances, case involving petition for habeas corpus and mandamus was remanded for determination of whether the "clearly exceptional circumstances" test affected prisoner's substantive right to parole eligibility in violation of ex post facto clause. United States ex rel. Graham v. United States Parole Comm'n, 629 F.2d 1040 (5th Cir. 1980).

Retroactive change in the method for calculating the tentative parole month. - Retroactive application of Rule 475-3-.05 (2) of the Board of Pardons and Paroles, allowing the board to extend the interval between parole reconsiderations up to a period of eight years for an inmate serving a life sentence, does not violate the ex post facto clause of the United States Constitution. Ray v. Jacobs, 272 Ga. 760 , 534 S.E.2d 418 (2000).

It is not a violation of ex post facto clause for individual to be sentenced to a penalty less harsh than the one it appeared the defendant would be subjected to, and was given notice of, at the moment of the crime. Federal Election Comm'n v. Lance, 617 F.2d 365 (5th Cir. 1980), appeal dismissed, 453 U.S. 917, 101 S. Ct. 3151 , 69 L. Ed. 2 d 999 (1980).

Application of the 1984 amendment to Rule 704 of the Federal Rules of Evidence, restricting expert testimony as to the legal insanity of the accused, to a case involving offenses occurring prior to the effective date of the amendment, did not violate equal protection nor the ex post facto clause. United States v. Alexander, 805 F.2d 1458 (11th Cir. 1986).

Enhanced sentencing statute for DUI. - Defendant who committed a DUI offense on November 11, 1990, was improperly subjected to the enhanced sentencing provisions contained in O.C.G.A. § 40-6-391(c)(3)(A), which did not become effective until January 1, 1991. Holtapp v. City of Fayetteville, 208 Ga. App. 606 , 431 S.E.2d 403 (1993).

Election of application of ex post facto law. - Application of the life-without-parole statute to defendant did not violate ex post facto prohibitions where the defendant expressly elected the application, and the statute did not establish a greater penalty or alter the situation to the defendant's disadvantage. Brantley v. State, 268 Ga. 151 , 486 S.E.2d 169 (1997), cert. denied, 522 U.S. 985, 118 S. Ct. 449 , 139 L. Ed. 2 d 384 (1997).

Improper sentence when pre-amendment version of sexual battery statute cited. - Defendant's sentence to five years imprisonment pursuant to the amended version of O.C.G.A. § 16-6-22.1 , with regard to defendant's conviction for sexual battery against a child under the age of 16 years, without specific jury finding that conduct for which defendant was convicted occurred after the amendment, was erroneous and required defendant's sentence to be vacated and remanded to the trial court for resentencing; trial court should have required special verdict form that addressed both defendant's pre-amendment and post-amendment conduct to avoid a potential ex post facto violation. Forde v. State, 289 Ga. App. 805 , 658 S.E.2d 410 (2008).

Firearm prohibition based on criminal activity. - Federal statute prohibiting anyone convicted of a domestic violence misdemeanor from possessing or receiving a firearm did not violate the ex post facto clause. National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998).

Amendment of forcible rape statute meant indictment within statute of limitations. - With regard to a defendant's conviction for forcible rape of the defendant's child during the time the child was 13 through 15 years of age, the trial court correctly concluded that the state had 15 years from the victim's 16th birthday on January 12, 1995, or until January 12, 2010, to prosecute the case noting the extension of the statute of limitation to 15 years as to forcible rape by the 1996 amendment to O.C.G.A. § 17-3-1 ; therefore, no ex post facto violation occurred since the indictment was filed on January 8, 2008. Duke v. State, 298 Ga. App. 719 , 681 S.E.2d 174 (2009), cert. denied, No. S09C1866, 2010 Ga. LEXIS 31 (Ga. 2010).

Appropriations

Federal Department of Health and Human Services could not be compelled to pay federal funds contrary to the Hyde Amendment. - Congressional funding restrictions directing that no federal funds appropriated to pay the federal share of the Medicaid program were to be used to finance certain abortions - to reimburse the state for funds it expended for medically necessary abortions performed during the period when it was required to fund such abortions pursuant to court order, under the mistaken rationale that the state was liable, under federal law, to fund such abortions even absent federal financial participation. Georgia ex rel. Dep't of Medical Assistance v. Heckler, 768 F.2d 1293 (11th Cir. 1985), cert. denied, 474 U.S. 1059, 106 S. Ct. 803 , 88 L. Ed. 2 d 779 (1986).

General Consideration

Interstate Agreement on Detainers is congressionally sanctioned interstate compact within the context of the compact clause of the United States Constitution. The agreement is, thus, considered a law of the United States. Seymore v. Alabama, 846 F.2d 1355 (11th Cir. 1988), cert. denied, 488 U.S. 1018, 109 S. Ct. 816 , 102 L. Ed. 2 d 806 (1989).

Cited in Meyers v. Whittle, 171 Ga. 509 , 156 S.E. 120 (1930); Perkins v. Mayor of Madison, 175 Ga. 714 , 165 S.E. 811 (1932); Trotzier v. McElroy, 182 Ga. 719 , 186 S.E. 817 (1936); Hollis v. Jones, 184 Ga. 273 , 191 S.E. 127 (1937); West v. Trotzier, 185 Ga. 794 , 196 S.E. 902 (1938); Campbell v. Red Bud Consol. Sch. Dist., 186 Ga. 541 , 198 S.E. 225 (1938); Cooper Co. v. State, 187 Ga. 497 , 1 S.E.2d 436 (1939); Salter v. Bank of Commerce, 189 Ga. 328 , 6 S.E.2d 290 (1939); National Sur. Corp. v. Gatlin, 192 Ga. 293 , 15 S.E.2d 180 (1941); FDIC v. Beasley, 193 Ga. 727 , 20 S.E.2d 23 (1942); Thompson v. Atlantic Coast Line R.R., 200 Ga. 856 , 38 S.E.2d 774 (1946); Mayor of Savannah v. Savannah Distrib. Co., 202 Ga. 559 , 43 S.E.2d 704 (1947); Co-Op Cab Co. v. Settle, 171 F.2d 40 (5th Cir. 1948); South W.R.R. v. Benton, 206 Ga. 770 , 58 S.E.2d 905 (1950); Bender v. Anglin, 207 Ga. 108 , 60 S.E.2d 756 (1950); Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299, 72 S. Ct. 321 , 96 L. Ed. 335 (1952); City of Atlanta v. Anglin, 209 Ga. 170 , 71 S.E.2d 419 (1952); MacNeill v. Fulton County, 210 Ga. 119 , 78 S.E.2d 40 (1953); Crawford v. Irwin, 211 Ga. 241 , 85 S.E.2d 8 (1954); Harper v. City Council, 212 Ga. 605 , 94 S.E.2d 690 (1956); Southern Ry. v. Georgia Pub. Serv. Comm'n, 218 Ga. 157 , 127 S.E.2d 12 (1962); Stephenson v. State, 219 Ga. 652 , 135 S.E.2d 380 (1964); Henson v. Georgia Indus. Realty Co., 220 Ga. 857 , 142 S.E.2d 219 (1965); Webb v. Whitley, 221 Ga. 618 , 146 S.E.2d 722 (1966); Moore v. Moore, 225 Ga. 340 , 168 S.E.2d 318 (1969); Bugden v. Bugden, 225 Ga. 413 , 169 S.E.2d 337 (1969); Stith v. Hudson, 226 Ga. 364 , 174 S.E.2d 892 (1970); Stith v. Hudson, 231 Ga. 520 , 202 S.E.2d 392 (1973); Centrif Air Mach. Co. v. Chilivis, 239 Ga. 253 , 236 S.E.2d 606 (1977); Georgia Franchise Practices Comm'n v. Massey-Ferguson, Inc., 240 Ga. 743 , 242 S.E.2d 69 (1978); Stith v. Morris, 241 Ga. 247 , 244 S.E.2d 817 (1978); Newsome v. Richmond County, 246 Ga. 300 , 271 S.E.2d 203 (1980); Stinchcomb v. Clayton County Water Auth., 177 Ga. App. 558 , 340 S.E.2d 217 (1986); Baldwin v. Ledbetter, 647 F. Supp. 623 (N.D. Ga. 1986).

Ex Post Facto Laws

1. Civil

Validity of statute affecting or changing remedy only. - Statute which changes or affects remedy only and does not destroy or impair vested rights is not unconstitutional as impairing obligation of contract, although it may be retroactive and although, in changing or modifying the remedy, the rights of the parties may be incidentally affected. Morris v. Interstate Bond Co., 180 Ga. 689 , 180 S.E. 819 (1935).

Validity of statute eliminating disability payments. - Former Code 1933, § 78-911 (see O.C.G.A. § 47-17-81 ), which eliminated, under certain conditions, payment for permanent or total disability, did not violate constitutional provisions providing that no ex post facto law, retroactive law, or law impairing the obligation of contracts shall be passed, because in passing former Code 1933, § 78-917 (see O.C.G.A. § 47-17-101 ) the legislature specifically provided that all rights and benefits conferred would be subject to future legislative change or revision, and that no beneficiary would be deemed to have any vested right to any annuities or benefits provided therein. Prichard v. Board of Comm'rs of Peace Officers Annuity & Benefit Fund, 211 Ga. 57 , 84 S.E.2d 26 (1954).

Validity of zoning ordinance. - Because plaintiff, while proceeding to zone property was pending, filed application to authorize building of filling station, and ordinance was later adopted zoning plaintiff's property for residential purposes, such ordinance was not in violation of the federal and state Constitutions as an ex post facto or retroactive law. Gay v. Mayor of Lyons, 212 Ga. 438 , 93 S.E.2d 352 (1956).

Statute is retroactive if it creates a new obligation on transactions or considerations already past, or destroys or impairs vested rights. - A statute does not operate retrospectively because it relates to antecedent facts, but if it is intended to affect transactions which occurred or rights which accrued before it became operative and ascribes to them essentially different effects, in view of the law at the time of their occurrence, it is retroactive in character. Todd v. Morgan, 215 Ga. 220 , 109 S.E.2d 803 (1959); Adams v. Adams, 219 Ga. 633 , 135 S.E.2d 428 (1964).

Validity of statute destroying vested right to property. - Former Code 1933, § 67-1308 (see O.C.G.A. § 44-14-80 ), providing that title to real property conveyed to secure debt should revert to grantor when debt became 20 years past due, unless debt was extended or renewed and such renewal recorded, or an affidavit setting out the facts of renewal was recorded with the conveyance, which section imposed conditions upon grantee not in existence at time of execution of the contract, divested the grantee of a vested right to the property, and impaired the obligation of the contract as applied to such deed, which was executed prior to passage and effective date of the Act, is unconstitutional, because in violation of U.S. Const., art. I, sec. X, cl. 1 and of Ga. Const. 1945, Art. I, Sec. III, Para. II, (see Ga. Const. 1983, Art. I, Sec. I, Para. X), which prohibited this state from passing any retroactive law or any law impairing the obligations of contracts. Todd v. Morgan, 215 Ga. 220 , 109 S.E.2d 803 (1959).

Validity of statute requiring occupation tax payment pending license application. - It is competent for the legislature to enact that a person entering upon business or occupation upon which a tax provided in ordinance has been imposed, by the terms thereof, should pay the amount of the tax named for the year, or for any period of time within the year, during which the person should choose to apply for a license. Pharr Rd. Inv. Co. v. City of Atlanta, 224 Ga. 752 , 164 S.E.2d 803 (1968).

2. Criminal

Phrase "ex post facto" applies to criminal, not civil, cases. Hayes v. Howell, 251 Ga. 580 , 308 S.E.2d 170 (1983).

Passing on validity of constitutional amendment not affecting petitioner's rights. - In habeas corpus proceeding based on alleged invalidity of constitutional amendment placing power of granting pardons and paroles in Board of Pardons and Paroles rather than Governor, court would not pass on constitutionality of amendment, since even if it were unconstitutional the prior provision would be in effect, and petitioner would not be entitled to discharge. Court will not pass on constitutionality of law when it is challenged by party whose rights are not affected by it. Whittle v. Jones, 198 Ga. 538 , 32 S.E.2d 94 (1944), appeal dismissed, 324 U.S. 829, 65 S. Ct. 915 , 89 L. Ed. 1396 (1945).

Avoidance of construction rendering amendment void as ex post facto law. - Because a constitutional amendment placing power to grant pardons in Board of Pardons and Paroles instead of Governor was silent as to whether it applied to persons previously convicted, amendment would not be given retroactive operation as to those persons if such construction would render amendment void as an ex post facto law. Whittle v. Jones, 198 Ga. 538 , 32 S.E.2d 94 (1944), appeal dismissed, 324 U.S. 829, 65 S. Ct. 915 , 89 L. Ed. 1396 (1945).

As a general rule, any law is ex post facto which is enacted after offense was committed, and which, in relation to offense or its consequences, alters the situation of the accused to the accused's disadvantage. A statute, however, cannot be an ex post facto law if it is apparent that legislature in enacting the statute did not make criminal an act which was innocent when done; did not aggravate an offense or change the punishment and make it greater than when it was committed; did not alter the rules of evidence and require less or different evidence than the law required at time of commission of offense; and did not deprive the accused of any substantial right or immunity that the accused possessed at the time of commission of the offense. Todd v. State, 228 Ga. 746 , 187 S.E.2d 831 , answer conformed to, 125 Ga. App. 841 , 189 S.E.2d 696 (1972).

Delayed effective date of statute. - The application of 21 U.S.C. § 862 to deny defendant federal benefits did not violate the Constitution's ex post facto clause; although the statute applied only to persons convicted of conspiracy after September 1, 1989, it was enacted on November 18, 1988, during the course of the conspiracy, and thus defendant had adequate notice of the penalty. United States v. Bush, 28 F.3d 1084 (11th Cir. 1994).

Validity of statute removing prior right. - Although it is the rule that no one has a vested right in a mere mode of procedure, so that a statute merely regulating procedure and leaving untouched all substantial protections with which existing law surrounds the person accused of crime is not within the constitutional prohibition against ex post facto laws, yet a statute is void and ineffective as related to previous offenses if it takes from the accused a substantial right given to the accused by law in force at the time to which guilt relates, and such statute cannot be sustained simply because, in a general sense, it may be said to regulate procedure. Todd v. State, 228 Ga. 746 , 187 S.E.2d 831 , answer conformed to, 125 Ga. App. 841 , 189 S.E.2d 696 (1972).

Validity of statute altering procedural conduct of criminal trials. - Because the changes effected by enactment of a law constitute merely an alteration in conditions deemed necessary for the orderly and just conduct of criminal trials, they do not deprive defendant of any substantial personal right within meaning of constitutional prohibitions of ex post facto laws. Todd v. State, 228 Ga. 746 , 187 S.E.2d 831 , answer conformed to, 125 Ga. App. 841 , 189 S.E.2d 696 (1972).

To invoke protection of ex post facto clause, appellant must show harm by showing trial court's decision would have been different had it been rendered before the decision in question. Alexander v. State, 139 Ga. App. 338 , 228 S.E.2d 364 (1976).

Ex post facto law is one that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; or that aggravates a crime, or makes it greater than it was when committed. United States v. Brown, 555 F.2d 407 (5th Cir. 1977), cert. denied, 435 U.S. 904, 98 S. Ct. 1448 , 55 L. Ed. 2 d 494 (1978).

Restriction on judicial, as well as legislative, powers. - The ex post facto clause is a limitation upon the powers of the legislature; but the principle on which the clause is based - the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties - is fundamental to our concept of constitutional liberty. As such, that right is protected against judicial action by the due process clause. An unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law which U.S. Const., art. I, sec. X, cl. 1 forbids. United States v. Brown, 555 F.2d 407 (5th Cir. 1977), cert. denied, 435 U.S. 904, 98 S. Ct. 1448 , 55 L. Ed. 2 d 494 (1978).

Validity of laws not affecting legal protections of accused. - The prescribing of different modes of procedure and the abolition of courts and creation of new ones, leaving untouched all the substantial protections with which the existing law surrounds the person accused of crime, are not considered within the constitutional prohibition against ex post facto laws. McSears v. State, 247 Ga. 48 , 273 S.E.2d 847 (1981).

After commission of offense, a reduction in size of jury is prohibited as an ex post facto law. McSears v. State, 247 Ga. 48 , 273 S.E.2d 847 (1981).

Effect of amending statute to reduce number of peremptory jury challenges. - The application to a criminal defendant of the statutory amendment reducing the number of the defendant's peremptory strikes did not violate the constitutional prohibition against ex post facto laws. Stargel v. State, 210 Ga. App. 619 , 436 S.E.2d 786 (1993).

Effect of amending statute to reduce number of impaneled jurors. - Application of the 1992 amendment to O.C.G.A. § 15-12-160 requiring the court to have 30, rather than 42, impaneled jurors from which the defense and prosecution may strike jurors did not violate the constitutional prohibition against ex post facto laws. Shuler v. State, 213 Ga. App. 790 , 446 S.E.2d 225 (1994).

An increase in child support did not violate the ex post facto clause as applied to a defendant originally convicted of abandonment of the defendant's children and whose sentence was suspended upon condition that he pay a certain amount of child support per month, since the child support obligation was a pre-existing duty under state law and was neither a part of the sentence nor a punishment. Hudson v. Deyton, 770 F.2d 1558 (11th Cir. 1985).

Rules of the State Board of Pardons and Paroles are "laws" within the meaning of the ex post facto clause. Akins v. Snow, 922 F.2d 1558 (11th Cir.), aff'd, 987 F.2d 775 (11th Cir. 1993), cert. denied, 501 U.S. 1260, 111 S. Ct. 2915 , 115 L. Ed. 2 d 1079 (1991), aff'd, 987 F.2d 775 (11th Cir. 1993).

Elimination of an annual parole reconsideration hearing violated the ex post facto clause because the amendment of rules that had required an annual hearing to provide instead for a hearing at least every eight years substantially disadvantaged a prisoner's parole eligibility. Akins v. Snow, 922 F.2d 1558 (11th Cir.), aff'd, 987 F.2d 775 (11th Cir. 1993), cert. denied, 501 U.S. 1260, 111 S. Ct. 2915 , 115 L. Ed. 2 d 1079 (1991), aff'd, 987 F.2d 775 (11th Cir. 1993).

Retroactive change in the method for calculating the tentative parole month of certain crime severity level offenders under the parole decision guidelines did not violate the ex post facto clause because the change did not produce a sufficient risk of increasing the measure of punishment attached to the covered crimes. Jones v. Georgia State Bd. of Pardons & Paroles, 59 F.3d 1145 (11th Cir. 1995).

The retroactive application of amendments to the Georgia regulations governing parole consideration, Ga. Comp. R. & Regs. r. 475-3-.05.(2) (1986), violated the ex post facto clause of the United States Constitution. Jones v. Garner, 164 F.3d 589 (11th Cir. 1999).

The retroactive application of amendments to the Georgia regulations changing the frequency of parole reviews, Ga. Comp. R. & Regs. r. 475-3-.05.(2) (1986), does not violate the ex post facto clause of the United States Constitution. Garner v. Jones, 529 U.S. 244, 120 S. Ct. 1362 , 146 L. Ed. 2 d 236 (2000).

Analysis of claims that amendments to Georgia regulations eliminating annual parole reconsideration hearings violates the ex post facto clause when applied to inmates who had been entitled to more frequent parole reconsideration at the time they committed their crimes must be made on a case-by-case basis. Harris v. Hammonds, 217 F.3d 1346 (11th Cir. 2000).

Enhanced sentencing statute for DUI. - Defendant who committed a DUI offense on November 11, 1990, was improperly subjected to the enhanced sentencing provisions contained in O.C.G.A. § 40-6-391(c)(3)(A), which did not become effective until January 1, 1991. Holtapp v. City of Fayetteville, 208 Ga. App. 606 , 431 S.E.2d 403 (1993).

Election of application of ex post facto law. - Application of the life-without-parole statute to defendant did not violate ex post facto prohibitions where the defendant expressly elected the application, and the statute did not establish a greater penalty or alter the situation to the defendant's disadvantage. Brantley v. State, 268 Ga. 151 , 486 S.E.2d 169 (1997), cert. denied, 522 U.S. 985, 118 S. Ct. 449 , 139 L. Ed. 2 d 384 (1997).

Requirement to renew registration as sex offender not ex post facto. - Defendant's conviction for violating O.C.G.A. § 42-1-12(e)(3) as a result of failing to renew the defendant's registration as a sex offender was upheld on appeal as the requirement to register as a sexual offender under § 42-1-12(e)(3) resulted in a new crime under § 42-1-12(n) and was not an ex post facto law. Frazier v. State, 284 Ga. 638 , 668 S.E.2d 646 (2008).

Impairment of Contracts

Legislature can impose upon county into which another county is merged the burden of performing the contracts and paying the debts of the merged county; an Act so providing for the performance of the contracts and payment of the debts of the merged county does not in any way impair the obligation of the contracts of the merged county in the sense in which that term is used in the Constitution of this state and the Constitution of the United States. Hines v. Etheridge, 173 Ga. 870 , 162 S.E. 113 (1931).

Freedom of contract is a qualified and not an absolute right; there is no absolute freedom to contract as one chooses; liberty implies the absence of arbitrary restraint - not immunity from reasonable regulations. City of Newnan v. Atlanta Laundries, Inc., 174 Ga. 99 , 162 S.E. 497 , appeal dismissed, 286 U.S. 526, 52 S. Ct. 495 , 76 L. Ed. 1269 (1932).

Contracts between individuals or corporations are impaired within the meaning of U.S. Const., art. I, sec. X, cl. 1 whenever the right to enforce them by legal process is taken away or materially lessened. A different rule prevails in respect to contracts of sovereigns. Lynch v. United States, 292 U.S. 571, 54 S. Ct. 840 , 78 L. Ed. 1434 (1934).

Validity of statute affecting or changing remedy only. - Statute that changes or affects a remedy only and does not destroy or impair vested rights is not unconstitutional as impairing obligation of contract, although it may be retroactive and although, in changing or modifying the remedy, the rights of the parties may be incidentally affected. Morris v. Interstate Bond Co., 180 Ga. 689 , 180 S.E. 819 (1935).

Contract between the state and an individual is protected by this constitutional prohibition. Morris v. Interstate Bond Co., 180 Ga. 689 , 180 S.E. 819 (1935).

Lien once acquired under existing law is regarded as a vested property right which may not be impaired by subsequent legislation. Morris v. Interstate Bond Co., 180 Ga. 689 , 180 S.E. 819 (1935).

Validity of statute affecting prior tax lien. - Former Code 1933, § 92-5712 (see O.C.G.A. § 48-5-25 ), providing that any party having an interest in property returned or assessed with other property for taxation shall be allowed to pay the taxes assessed against any one or more pieces of property in which he is so interested and obtain a release as to such property, is unconstitutional as applied to the lien of a tax execution previously transferred according to law and with the transfer duly recorded, because it would impair the obligation of a contract in violation of the state and federal Constitutions. Morris v. Interstate Bond Co., 180 Ga. 689 , 180 S.E. 819 (1935).

Validity of statute affecting remedy expressly made part of contract. - Remedies existing by law at time of execution of contract may be modified by the legislature without impairing the obligation, provided an efficient remedy is left for its enforcement; the rule is different, however, as to a remedy that the parties have expressly made a part of the contract, because in such case the remedy is integrated as a part of the obligation, and a subsequent statute which affects the remedy impairs the obligation and is unconstitutional. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 (1935).

Validity of statute affecting remedy existing as implicit part of contract. - Remedy subsisting in a state when and where a contract is made and is to be performed is a part of its obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and is, therefore, void. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 (1935).

Obligation of a contract, in constitutional sense, is the means provided by law by which it can be enforced, by which the parties can be obliged to perform it, and whatever legislation lessens the efficacy of these means impairs the obligation. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 (1935).

Validity of statutes affecting rights conferred by prior security deed. - Because a security deed executed in 1930 provided that in case of default in payment of debt the grantee might sell the property at the courthouse in a named county different from that in which the property was located, after first advertising the sale for a stated period in a newspaper published in the county in which the sale should be conducted, former Code 1933, § 67-1506 (see O.C.G.A. § 44-14-162 ), could not be constitutionally applied to such preexisting contract so as to require, in terms of the statute, that the sale should be advertised and conducted at the time and place and in the usual manner of sheriff's sales in the county in which the property, or a part thereof, was located. The same is true of former Code 1933, §§ 67-1503 through 67-1505 (see O.C.G.A. § 44-14-161 ), relating to confirmation of sale, which abridges the right to a deficiency judgment after a sale under the security deed. As to the rights conferred by the prior security deed, Code 1933, §§ 67-1503 through 67-1506, is invalid. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 (1935).

Ordinance prohibiting the owning, maintaining, and operating of pinball machines and the like was not violative of the provisions of the federal and state Constitutions prohibiting the passage of laws impairing the obligation of contracts. Woodward v. City of Lithonia, 191 Ga. 234 , 11 S.E.2d 476 (1940).

Contractual nature of relation between electors and state upon approval and validation of school bonds. - The approval of school bonds by the electors and their validation according to statute created a status analogous to a contractual relation between such electors and the state, which relation could not be destroyed or impaired by a subsequent statute or constitutional provision. Wheeler v. Board of Trustees, 200 Ga. 323 , 37 S.E.2d 322 (1946).

Claim that state statute impairs obligation of contract is an appeal to the United States Constitution and cannot be foreclosed by a state court's determination whether there was a contract or what were its obligations. Atlantic Coast Line R.R. v. Phillips, 332 U.S. 168, 67 S. Ct. 1584 , 91 L. Ed. 1977 (1947).

Contractual nature of franchise granted by city to public service corporation. - It is generally recognized that a franchise granted by a city council to a public service corporation to use its streets and public places, if the city has the charter power to grant such a franchise, is a binding contract and cannot be impaired in view of the prohibition against impairment of the obligation of contracts contained in the United States Constitution. City of Summerville v. Georgia Power Co., 205 Ga. 843 , 55 S.E.2d 540 (1949).

Contract clause protects a vested ground of defense from being destroyed by an Act of the legislature. Guest v. Stone, 206 Ga. 239 , 56 S.E.2d 247 (1949).

Former Code 1933, § 3-108 (see O.C.G.A. § 9-2-20 ), permitting beneficiary under contract between other parties to recover, could be given no retroactive effect, as to do so would violate the provisions of the United States and state Constitutions as to impairing the obligations of contracts, by creating a right for one to recover under an existing contract where he previously had no such right and subjecting a party to an existing contract to liability to a third person who previously had no right under the contract. Guest v. Stone, 206 Ga. 239 , 56 S.E.2d 247 (1949).

Validity of statute eliminating ability payments. - Former Code 1933, § 78-911 (see O.C.G.A. § 47-17-81 ), which eliminated, under certain conditions, payment for permanent or total disability, did not violate constitutional provisions providing that no ex post facto law, retroactive law, or law impairing the obligation of contracts shall be passed, because in passing former Code 1933, § 78-917 (see O.C.G.A. § 47-17-101 ) the legislature specifically provided that all rights and benefits conferred would be subject to future legislative change or revision, and that no beneficiary would be deemed to have any vested right to any annuities or benefits provided therein. Prichard v. Board of Comm'rs of Peace Officers Annuity & Benefit Fund, 211 Ga. 57 , 84 S.E.2d 26 (1954).

Pension is not a gratuity, but a contract based upon a consideration and gives pensioner a vested right which under U.S. Const., art. I, sec. X, cl. 1 cannot be impaired. Such contract cannot be modified, repealed, or defeated by subsequent Acts of the General Assembly after its creation. Burks v. Board of Trustees of Firemen's Pension Fund, 214 Ga. 251 , 104 S.E.2d 225 (1958).

Validity of statute destroying vested right to property. - Former Code 1933, § 67-1308 (see O.C.G.A. § 44-14-80 ), providing that title to real property conveyed to secure debt should revert to grantor when debt became 20 years past due, unless debt was extended or renewed and such renewal recorded, or an affidavit setting out the facts of renewal was recorded with the conveyance, which section imposed conditions upon grantee not in existence at time of execution of the contract, divested the grantee of a vested right to the property, and impaired the obligation of the contract as applied to such deed, which was executed prior to passage and effective date of the Act, is unconstitutional, because in violation of U.S. Const., art. I, sec. X, cl. 1 and of Ga. Const. 1945, Art. I, Sec. III, Para. II, (see Ga. Const. 1983, Art. I, Sec. I, Para. X), which prohibited this state from passing any retroactive law or any law impairing the obligations of contracts. Todd v. Morgan, 215 Ga. 220 , 109 S.E.2d 803 (1959).

Validity of statute empowering courts to revise alimony and support judgments. - Former Code 1933, § 30-220 (see O.C.G.A. §§ 19-6-18 and 19-6-19 ), conferring jurisdiction and power on courts of this state to revise judgments fixing permanent alimony or support for minor children, does not offend those constitutional provisions of this state and of the United States which provide that no law impairing the obligation of contracts shall be enacted, and this is true even though the amount of alimony or support so awarded by the judgment, as well as the time during which it is to be paid, is agreed to in writing by the parties. Nelson v. Roberts, 216 Ga. 741 , 119 S.E.2d 545 (1961).

Validity of chapter governing pensions to retired judges of probate courts. - The obligation of the board to pay monthly benefits to retired ordinaries (now judges of probate courts) under former Code 1933, Ch. 24-17A (see O.C.G.A. Ch. 11, T. 47) existed only so long as there existed funds to pay these benefits. When these funds were exhausted, the obligation of the board administering the chapter ended, and thus the chapter is not unconstitutional as violative of the contractual obligation clauses of the federal and state Constitutions. Sanders v. Harper, 220 Ga. 649 , 141 S.E.2d 156 (1965).

U.S. Const., Art. I, Sec. X is restricted to the protection of vested rights; it does not render inviolate mere contingent or speculative interests. Webb v. Whitley, 114 Ga. App. 153 , 150 S.E.2d 261 (1966).

Decision to award a limited liability company fee simple title in real property did not violate the contract impairment clauses in U.S. Const., Art. I, Sec. X and Ga. Const. 1983, Art. I, Sec. I, Para. X as a corporation's rights to the property pursuant to a 1984 tax deed had not vested prior to the effective date of a 1989 amendment of O.C.G.A. § 48-4-48 , which operated retrospectively. BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009).

U.S. Const., art. I, sec. X's prohibition of any state law impairing the obligation of contracts is not a limitation on the power of eminent domain. - The obligation of a contract is not impaired when it is appropriated to a public use and compensation made therefor. Such an exertion of power is a taking, and not an impairment of a contractual obligation. City of Atlanta v. Airways Parking Co., 225 Ga. 173 , 167 S.E.2d 145 (1969).

Condemnation of portion of rights of condemnee under its contract with city does not violate the provision of U.S. Const., art. I, sec. X, cl. 1 prohibiting the passage of a law impairing the obligation of contracts. City of Atlanta v. Airways Parking Co., 225 Ga. 173 , 167 S.E.2d 145 (1969).

U.S. Const., art. I, sec. X, cl. 1 does not forbid the equitable modification of a contract. Selby v. Gilmer, 240 Ga. 241 , 240 S.E.2d 80 (1977).

Impairment of contracts by state for public welfare. - Constitutional restraints upon impairment of obligation of contracts do not prevent state from exercising such powers as are necessary in the exercise of its sovereign right to protect the lives, health, morals, comfort, and general welfare of the public, though contracts previously entered into between individuals may thereby be affected. Moore v. Georgia Pub. Serv. Comm'n, 242 Ga. 182 , 249 S.E.2d 549 (1978).

Act of General Assembly revoking city charter, thus abolishing municipal offices, is not a law in impairment of contract since the right of an incumbent to an office is not vested, but may be revoked if the law under which the incumbent holds office is capable of being repealed. City of Mt. View v. Clayton County, 242 Ga. 163 , 249 S.E.2d 541 (1978), appeal dismissed, 440 U.S. 902, 99 S. Ct. 1205 , 59 L. Ed. 2 d 450 (1979).

Contract clause does not prohibit state from repealing or amending statutes generally or from enacting legislation with retroactive effects. Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S. Ct. 574 , 66 L. Ed. 2 d 474 (1980).

With respect to grants of political or governmental authority to cities, towns, counties, and the like, legislative power of states is not restrained by the contract clause. Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S. Ct. 574 , 66 L. Ed. 2 d 474 (1980).

Preliminary question under contract clause analysis is whether the legislative action impaired or changed a specific contractual obligation. City of Atlanta v. Metropolitan Atlanta Rapid Transit Auth., 636 F.2d 1084 (5th Cir. 1981).

Constitutional provision is not applicable to individual conduct by persons acting under color of state law. Stone Mt. Game Ranch, Inc. v. Hunt, 570 F. Supp. 238 (N.D. Ga. 1983), aff'd, 746 F.2d 761 (11th Cir. 1984).

Municipality cannot claim statutory immunity to bar employee from recovering pay. - To bar a municipal employee from recovering pay for services the employee performed by allowing the municipality to claim statutory immunity would violate the prohibition against the impairment of a contract which is found in both the state and federal constitutions. Smith v. City of Atlanta, 167 Ga. App. 458 , 306 S.E.2d 720 (1983).

Reduction in future nonvested retirement benefits. - Since there is no vested right to benefits one was never entitled to receive, the reduction in future benefits to retiree did not violate the retiree's constitutional right to protection against impairment of contract. Tate v. Teachers' Retirement Sys., 257 Ga. 365 , 359 S.E.2d 649 (1987).

Retrospective application of judicial construction of insurance contracts. - The interpretation of O.C.G.A. § 33-34-5 by Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 230 , 274 S.E.2d 623 (1980) was based on the insurer's failure to comply with specific requirements of the law and was not an unconstitutional impairment of the insurance contract. State Farm Mut. Auto. Ins. Co. v. Bates, 542 F. Supp. 807 (N.D. Ga. 1982).

Franchise tax on gas sales. - Franchise granted in 1940 by town ordinance to gas company allowing for the sale and distribution of gas services to town inhabitants was not granted in perpetuity; thus, 1980 town ordinance providing for a three percent franchise tax on gas sales impaired no contractual rights granted to the assignor of the gas company's franchise, and trial court did not err in refusing to declare the 1980 ordinance unconstitutional as an impairment of contract. Gas Light Co. v. Town of Bibb City, 253 Ga. 498 , 322 S.E.2d 250 (1984).

Subjecting retirement benefits of retired school teachers to state income taxation did not violate the constitutional prohibition against state laws impairing the obligation of contracts, where the teachers had no vested right to an irrevocable exemption, such irrevocable exemption being barred under Ga. Const. 1983, Art. VII, § I, Para. I. Parrish v. Employees' Retirement Sys., 260 Ga. 613 , 398 S.E.2d 353 (1990), cert. denied, 500 U.S. 353, 111 S. Ct. 2016 , 114 L. Ed. 2 d 103 (1991).

Duties on Imports

Non-discriminatory ad valorem tax constitutional. - A non-discriminatory ad valorem tax does not violate this section's "import-export" clause, where the imported goods are "no longer in transit". Los Angeles Tile Co. v. Chatham County Bd. of Tax Assessors, 209 Ga. App. 245 , 433 S.E.2d 82 (1993).

Nondiscriminatory ad valorem property taxes do not interfere with the free flow of imported goods among the states. Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S. Ct. 535 , 46 L. Ed. 2 d 495 (1976).

Imports subject to uniform taxes imposed for services supplied by state. - The import-export clause clearly prohibits state taxation based on foreign origin of imported goods, but it cannot be read to accord imported goods preferential treatment that permits escape from uniform taxes imposed without regard to foreign origin for services which the state supplies. Michelin Tire Corp. v. Wages, 423 U.S. 276, 96 S. Ct. 535 , 46 L. Ed. 2 d 495 (1976).

Taxable status of packaged and bulk imports. - There is a vast distinction between goods shipped in packaging, such as crates or cartons, and goods shipped in bulk. Packaged imports retain their status as imports, and are not subject to taxation. Bulk imports that have been mingled with other bulk imports, sorted, and arranged for sale do not retain their status as imports, and they are subject to taxation. Wages v. Michelin Tire Corp., 233 Ga. 712 , 214 S.E.2d 349 (1975), aff'd, 423 U.S. 276, 96 S. Ct. 535 , 46 L. Ed. 2 d 495 (1976).

General Consideration

"Contacts" with forum state not germane to Bankruptcy Act. - As federal district courts have personal jurisdiction in federal bankruptcy actions over any person with minimum contacts with the United States, and as the federal Bankruptcy Act permits nationwide service of process, a federal district court had ancillary personal jurisdiction over a nonresident defendant in a "non-core," related bankruptcy proceeding. This was true even though the defendant lacked minimum contacts with the forum state. Chemical Bank v. Grigsby's World of Carpet, Inc. (In re WWG Indus., Inc.), 44 Bankr. 287 (N.D. Ga. 1984).

Congress clearly had the power to confer on the United States District Court subject matter jurisdiction of a suit against a nonresident by an assignee of a debtor in bankruptcy to collect on accounts allegedly owed the debtor. Chemical Bank v. Grigsby's World of Carpet, Inc. (In re WWG Indus., Inc.), 44 Bankr. 287 (N.D. Ga. 1984).

Prosecution for violation of 29 U.S.C. § 461 must occur in the District of Columbia. - Prosecution for failure to file with the Secretary of Labor the trusteeship reports required by 29 U.S.C. §§ 461(a) and (c) (1980) when an international union takes over the operation of a local union can only take place in the District of Columbia. United States v. DiJames, 731 F.2d 758 (11th Cir. 1984).

Maritime attachment procedures. - For case discussing the constitutionality of maritime attachment procedures under admiralty rules, see Schiffahrtsgesellschaft Leonhardt & Co. v. Bottacchi, 732 F.2d 1543 (11th Cir. 1984).

Composition and placement of United States Sentencing Commission, created by the federal Sentencing Reform Act of 1984 (28 U.S.C. §§ 991-998), was unconstitutional because it violated the doctrine of separation of powers. United States v. Richardson, 690 F. Supp. 1030 (N.D. Ga. 1988); United States v. Kane, 691 F. Supp. 341 (N.D. Ga. 1988).

Statute allowing removal of prosecutions against members of armed forces. - The statute allowing removal of certain state criminal prosecutions against members of the armed forces, 28 U.S.C. § 1442a, is not a statute upon which "arising under" jurisdiction can be based; it requires that a defendant must present a federal defense for removal. Georgia v. Westlake, 929 F. Supp. 1516 (M.D. Ga. 1996).

Cited in Ventimiglia v. Aderhold, 51 F.2d 308 (N.D. Ga. 1931); Farnsworth v. Zerbst, 98 F.2d 541 (5th Cir. 1938); Perkins v. Brown, 53 F. Supp. 176 (S.D. Ga. 1943); Smith v. UMW, 180 F. Supp. 796 (M.D. Ga. 1958); United States v. Raines, 203 F. Supp. 147 (M.D. Ga. 1961); Wirtz v. Alapaha Yellow Pine Prods., Inc., 217 F. Supp. 465 (M.D. Ga. 1963); Franklin v. United States, 384 F.2d 377 (5th Cir. 1967); Stevens Indus., Inc. v. Maryland Cas. Co., 391 F.2d 411 (5th Cir. 1968); Bond v. Fortson, 334 F. Supp. 1192 (N.D. Ga. 1971); United States v. Crow, Pope & Land Enters., Inc., 340 F. Supp. 25 (N.D. Ga. 1972); Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209 , 39 L. Ed. 2 d 505 (1974); Lucas v. Hope, 515 F.2d 234 (5th Cir. 1975); Brown & Williamson Tobacco Corp. v. Daniel Int'l Corp., 563 F.2d 671 (5th Cir. 1977); Jackson v. Seaboard Coast Line R.R., 678 F.2d 992 (11th Cir. 1982); Athens Lumber Co. v. Federal Election Comm'n, 689 F.2d 1006 (11th Cir. 1982); United States v. Brantley, 733 F.2d 1429 (11th Cir. 1984); Cox Cable Communications, Inc. v. United States, 992 F.2d 1178 (11th Cir. 1993); Sammons v. National Comm'n on Certification of Physician Assistants, Inc., 104 F. Supp. 2d 1379 (N.D. Ga. 2000).

Extent of Jurisdiction

1. In General

The language, "shall extend . . . to all Cases of admiralty and maritime Jurisdiction," imports an absolute and exclusive grant of power. Maryland Cas. Co. v. Grant, 169 Ga. 325 , 150 S.E. 424 (1929), cert. denied, 281 U.S. 690, 50 S. Ct. 240 , 74 L. Ed. 1120 (1930).

Nature of admiralty and maritime jurisdiction. - Jurisdiction is conferred on the federal courts in admiralty because, as the seas are the joint property of the nations, the jurisdiction is essentially national and because of their nature such cases are closely connected with the grant of the commerce power. The jurisdiction is not restricted to admiralty, but includes all maritime jurisdiction. The constitutional provision for federal jurisdiction refers to a system of law operating uniformly in the whole country, and regard must be had to the legal history, Constitution, legislation, customs, and adjudications. The admiralty jurisdiction was not intended to be as limited as it was in England at the time of the adoption of the Constitution, and it was to guard against a narrow construction of the word "admiralty" that "maritime" was added. Maryland Cas. Co. v. Grant, 169 Ga. 325 , 150 S.E. 424 (1929), cert. denied, 281 U.S. 690, 50 S. Ct. 240 , 74 L. Ed. 1120 (1930).

Admiralty and maritime jurisdiction require location and nexus. - Admiralty and general maritime jurisdiction require a showing of both location in navigable waters as well as a nexus to traditional maritime activity. Cochran v. E.I. duPont de Nemours, 933 F.2d 1533 (11th Cir. 1991), cert. denied, 502 U.S. 1035, 112 S. Ct. 881 , 116 L. Ed. 2 d 785 (1992).

Only one jurisdiction conferred under "admiralty and maritime jurisdiction". - Although there is no question but that originally the words "admiralty" and "maritime" were not identical in meaning, there is no question but that there was one jurisdiction given by the phrase "admiralty and maritime jurisdiction." Renew v. United States, 1 F. Supp. 256 (S.D. Ga. 1932).

What constitutes "navigable waters". - Strom Thurmond Lake does not constitute "navigable waters" as that term is used for invoking admiralty jurisdiction. Seymour v. United States, 744 F. Supp. 1161 (S.D. Ga. 1990).

Necessarily, the word "affecting" must be given its reasonable and sensible meaning in light of purposes of Constitution. Farnsworth v. Sanford, 33 F. Supp. 400 (N.D. Ga.), aff'd, 115 F.2d 375 (5th Cir. 1940), cert. denied, 313 U.S. 586, 61 S. Ct. 1109 , 85 L. Ed. 1541 (1941).

Under facts, case not one "affecting" foreign ministers. - Because two Japanese officials named in an indictment were not prosecuted, nor their persons in any manner subjected to threats, arrest, punishment, or any control whatsoever, nor their property in any manner interfered with, or attempted to be interfered with, nor were they called upon to do anything whatsoever, and their prosecution or conviction was in no way necessary to the establishment of the case against petitioner, the case against petitioner was not one "affecting" foreign ministers. Farnsworth v. Sanford, 33 F. Supp. 400 (N.D. Ga.), aff'd, 115 F.2d 375 (5th Cir. 1940), cert. denied, 313 U.S. 586, 61 S. Ct. 1109 , 85 L. Ed. 1541 (1941).

Jurisdiction of trial court over case involving foreign official. - U.S. Const., art. III, sec. II, cl. 1 was not intended to deny a trial court jurisdiction, even if it should appear from the evidence that a foreign minister was involved in any manner, whether innocently or criminally and however slightly. It was meant merely to prevent any interference with the person or property of such ministers. Farnsworth v. Sanford, 33 F. Supp. 400 (N.D. Ga.), aff'd, 115 F.2d 375 (5th Cir. 1940), cert. denied, 313 U.S. 586, 61 S. Ct. 1109 , 85 L. Ed. 1541 (1941).

Jurisdiction over aliens. - Under U.S. Const., art. III, sec. II, the district court had subject matter jurisdiction over a permanent resident alien residing within the district and his habeas corpus petition which alleged deprivation of liberty without due process based on the prolonged determination of his deportation proceedings. Grodzki v. Reno, 950 F. Supp. 339 (N.D. Ga. 1996).

Federal restriction of jurisdiction of state courts. - The power reserved to the states under the Constitution to provide for the determination of controversies in their courts may be restricted by federal district courts only in obedience to Congressional legislation in conformity with U.S. Const., art. III. Hughes v. District Att'y, 436 F.2d 568 (5th Cir. 1970), cert. denied, 402 U.S. 914, 91 S. Ct. 1397 , 28 L. Ed. 2 d 656 (1971).

Federal jurisdiction of criminal liability under state law. - The arrest by the federal courts of the processes of criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury both great and immediate. Hughes v. District Att'y, 436 F.2d 568 (5th Cir. 1970), cert. denied, 402 U.S. 914, 91 S. Ct. 1397 , 28 L. Ed. 2 d 656 (1971).

In diversity case, federal court must be sensitive to doctrinal trends of state law, and the policies which inform the prior adjudications by the state courts. Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981).

Jurisdiction to issue writ of attachment against businesses aboard vessel. - A federal court had the authority, under its inherent power to apply traditional maritime law, to issue a writ of attachment against bankers and stores located aboard a vessel; it did not have to rely on any grant of authority under Rule B(1), Supplemental Admiralty and Maritime Claim Rules, governing attachments. Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion, 773 F.2d 1528 (11th Cir. 1985).

Preliminary services contract outside admiralty jurisdiction. - If the subject matter of an agency agreement deals with preliminary services, that contract is not a maritime contract and is outside the admiralty jurisdiction. The fact that plaintiff in an in rem proceeding claimed a lien on a vessel for performance of those services under the Federal Maritime Lien Act did not change the character of those services or create in the district court the admiralty jurisdiction that was otherwise lacking. E.S. Binnings, Inc. v. M/V Saudi Riyadh, 815 F.2d 660 (11th Cir. 1987).

Racial discrimination cases. - In a case against university officials involving a race discrimination claim, the critical inquiry for standing purposes was whether the plaintiff's application had actually been treated differently at some stage in the admissions process on the basis of race. If so, then the plaintiff had not competed on an equal footing with other applicants outside plaintiff's racial classification, and standing should have been conferred regardless of whether race was ultimately a factor in the decision to reject the application. Conversely, if the plaintiff's application was never actually treated differently because of race, then the fact that race may have been a consideration in assessing other applicants at a different stage of the process would not by itself confer standing. Wooden v. Bd. of Regents of the Univ. Sys., 247 F.3d 1262 (11th Cir. 2001).

2. Cases and Controversies

Controversy in the constitutional sense means one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character. There must be a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged. Southern Ry. v. Brotherhood of Locomotive Firemen & Enginemen, 223 F. Supp. 296 (M.D. Ga. 1962), aff'd, 324 F.2d 503 (5th Cir. 1963).

U.S. Const., art. III, sec. II, cl. 1 limits judicial power of federal courts to decision of "cases" and "controversies." The words have an iceberg quality, containing beneath their surface simplicity, submerged complexities which go to the very heart of the constitutional form of government. Embodied in the words "cases" and "controversies" are two complementary but somewhat different limitations. In part, those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process; and in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case and controversy doctrine. Mathews v. Massell, 356 F. Supp. 291 (N.D. Ga. 1973); Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S. Ct. 1251 , 47 L. Ed. 2 d 444 (1976).

Case or controversy requirement in class action. - To satisfy the case or controversy requirement, there must not only be a named plaintiff who has such a case or controversy at the time the complaint is filed and at the time the class action is certified by the district court, but there must also be a live controversy at the time the Supreme Court reviews the case. The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot. Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S. Ct. 1251 , 47 L. Ed. 2 d 444 (1976).

Article III courts have jurisdiction over actual controversies; they are not permitted luxury of issuing advisory opinions. Wilson v. Zarhadnick, 534 F.2d 55 (5th Cir. 1976).

Actual controversy must exist at stages of appellate or certiorari review, and not simply on date action is initiated. McRae v. Hogan, 576 F.2d 615 (5th Cir. 1978).

Authority to decide moot or abstract issues. - Because the judicial power conferred by Art. III depends upon the existence of cases or controversies, federal courts lack authority to decide moot questions or abstract propositions or issues that cannot affect the rights of litigants in the case before them. McRae v. Hogan, 576 F.2d 615 (5th Cir. 1978).

Mootness doctrine does not apply when challenged action is too short in duration to be fully litigated prior to its cessation or expiration, and there is a reasonable expectation that some complaining party would be subjected to the same action again. Although the power of federal courts is limited to justiciable or live controversies, a judicially carved exception to the mootness doctrine applies when a claim is capable of repetition yet evades review. Penthouse Int'l, Ltd. v. McAuliffe, 454 F. Supp. 289 (N.D. Ga. 1978).

Existence of controversy demonstrated by showing of threats of criminal prosecution. - While the availability of declaratory relief in a federal challenge to a state criminal statute is not precluded merely because a plaintiff has not made the required showing for injunctive relief, so long as threats of prosecution are not imaginary, speculative, or chimerical, the plaintiff has demonstrated the existence of an Art. III controversy. High Ol' Times, Inc. v. Busbee, 621 F.2d 135 (5th Cir. 1980), rev'd on other grounds, 673 F.2d 1225 (11th Cir. 1982).

Basic test for determining whether litigant alleges case or controversy is whether conflicting contentions of parties present real and substantial controversy between persons having adverse legal interests, a dispute that is definite and concrete. Western Bus. Sys. v. Slaton, 502 F. Supp. 746 (N.D. Ga. 1980).

There can be no case or controversy where parties seek adjudication of only political question, or merely seek advisory opinion, or where the litigation presents merely an abstract, academic, or hypothetical question, or where the question sought to be adjudicated has been mooted by subsequent developments, or where the plaintiff has no standing to maintain the action. Western Bus. Sys. v. Slaton, 502 F. Supp. 746 (N.D. Ga. 1980).

Controversy must be definite and concrete, touching legal relations of parties having adverse legal interests; it must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical statement of facts. Federal Election Comm'n v. Lance, 635 F.2d 1132 (5th Cir.), appeal dismissed and cert. denied, 453 U.S. 917, 101 S. Ct. 3151 , 69 L. Ed. 2 d 999 (1981).

Federal courts do not decide abstract, hypothetical, or contingent questions. This is but another way of stating the requirement for a justiciable case or controversy under U.S. Const., art. III, sec. II, cl. 1. Halder v. Standard Oil Co., 642 F.2d 107 (5th Cir. 1981).

Justiciable controversy is distinguished from dispute merely hypothetical or abstract in nature; it must be a real and substantial controversy admitting of specific relief through a decree of conclusive character, not an opinion advising what the law would be upon a hypothetical statement of facts. Halder v. Standard Oil Co., 642 F.2d 107 (5th Cir. 1981).

District courts lack jurisdiction to express legal opinions based upon hypothetical or academic facts. It is not the function of a United States District Court to sit in judgment on questions which today may readily be imagined, but may never in fact come to pass. Mere predictions of what may or may not occur cannot confer jurisdiction on a court to render an advisory opinion relating to those predictions. Halder v. Standard Oil Co., 642 F.2d 107 (5th Cir. 1981).

Establishing existence of case or controversy. - The existence of a case or controversy is established if there is "sufficient immediacy and reality" to warrant the issuance of a declaratory judgment. American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981).

Rights of parties before court must be at issue. - Article III of the Constitution conditions the exercise of federal judicial power upon the existence of a case or controversy. As a result of Article III's proscription, federal courts are without authority to decide questions which cannot affect the rights of the parties before the court. Afro-American Patrolmen's League v. City of Atlanta, 817 F.2d 719 (11th Cir. 1987).

Nature of mootness doctrine. - An action that has become moot does not present a justiciable case or controversy within the meaning of U.S. Const., art. III. A case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome of the litigation, such as where there is no reasonable expectation that the violation will occur again or where interim relief or events have eradicated the effects of the alleged violation. Saladin v. City of Milledgeville, 812 F.2d 687 (11th Cir. 1987).

Matters that are resolved or that have come to an end during litigation in a United States court, cease to be part of the "case" or "controversy" and become moot - unless such matters are "capable of repetition, yet evading review." Saladin v. City of Milledgeville, 630 F. Supp. 344 (M.D. Ga. 1986), rev'd on other grounds, 812 F.2d 687 (11th Cir. 1987), appeal dismissed after remand, 804 F. Supp. 1547 (M.D. Ga. 1992).

Capable of repetition, yet evading review exception to mootness doctrine. - Because the duration of a preliminary order reinstating an employee under § 405 of the Surface Transportation Act of 1982, 42 U.S.C. App. § 2305, was too short for the employer's challenge to be fully litigated, yet it could reasonably be expected that the employer would be subjected to similar preliminary orders in the future, the controversy between the employer and the Secretary of Labor as to the constitutional adequacy of the secretary's procedures prior to the issuance of the preliminary reinstatement order fell within the "capable of repetition, yet evading review" exception to the mootness doctrine. Brock v. Roadway Express, Inc., 481 U.S. 252, 107 S. Ct. 1740 , 95 L. Ed. 2 d 239 (1987).

The federal court may exercise jurisdiction in cases if the conduct complained of is capable of repetition, yet evading review. Chris C. v. Gwinnett County Sch. Dist., 780 F. Supp. 804 (N.D. Ga. 1991), aff'd, 968 F.2d 25 (11th Cir. 1992).

Demonstration of direct injury. - A plaintiff 's request for injunctive relief fails to satisfy this section's "case or controversy" requirement if the plaintiff does not demonstrate that the plaintiff has sustained or is immediately in danger of sustaining some direct injury. McQurter v. City of Atlanta, 572 F. Supp. 1401 (N.D. Ga. 1983), appeal dismissed, 724 F.2d 881 (11th Cir. 1984).

Unconstitutional statute interfering with plaintiff 's normal conduct. - An anticipatory attack is appropriate if the allegedly unconstitutional statute interferes with the way the plaintiff would normally conduct one's affairs. American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981).

Suit brought by juror in state court murder trial against the presiding judge, claiming that the judge violated constitutional rights by singling the juror out in open court, after the verdict, as the only juror to vote against the death penalty and by commenting about the juror in a published interview, and seeking declaratory relief, failed to satisfy the threshold "case or controversy" requirement, no allegation being made that such conduct by the judge would be continued. Emory v. Peeler, 756 F.2d 1547 (11th Cir. 1985).

Temporary restraining order where obscenity statute not in issue. - Because there was no state obscenity enforcement action concerning a particular issue of a magazine, and because the complaint of the magazine's publisher sought no ultimate relief, by way of either injunction or declaration, but only a temporary restraining order, there was no "case or controversy" to authorized federal court jurisdiction. Penthouse Int'l, Ltd. v. Webb, 594 F. Supp. 1186 (N.D. Ga. 1984).

Plaintiffs demonstrated existence of requisite "case or controversy". - See American Booksellers Ass'n v. Webb, 590 F. Supp. 677 (N.D. Ga. 1984).

Dispute over ownership and possession of documents which the FBI had provided to a city satisfied the requirement of a case or controversy, even though plaintiff federal government and city defendants had both previously sought to prevent dissemination of the documents. United States v. Napper, 694 F. Supp. 897 (N.D. Ga. 1988), aff'd, 887 F.2d 1528 (11th Cir. 1989).

Claims for reinstatement and front pay were moot because claimant had already had former job reinstated and reinstatement and front pay are alternative, rather than cumulative, remedies. Morris v. Roche, 182 F. Supp. 2d 1260 (M.D. Ga. 2002).

3. Standing and Ripeness

Essence of standing questions. - As part of the case or controversy requirement, a litigant must have "standing" before he may bring a lawsuit in federal court. The essence of a standing question is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for the illumination of difficult constitutional questions. Saladin v. City of Milledgeville, 812 F.2d 687 (11th Cir. 1987).

Ripeness doctrine involves both jurisdictional limitations imposed by U.S. Const., art. III's requirement of a case of controversy and prudential considerations arising from problems of prematurity and abstractness that may present insurmountable obstacles to the exercise of the court's jurisdiction, even though jurisdiction is technically present. Johnson v. Sikes, 730 F.2d 644 (11th Cir. 1984).

Standing to attack tax statute. - A taxpayer who is not affected and thus not harmed by an alleged deficiency in a tax statute is not in a position to attack its constitutionality on the ground that such effect is unconstitutional. Lott Inv. Corp. v. Gerbing, 242 Ga. 90 , 249 S.E.2d 561 (1978).

One to whom application of a statute is constitutional will not be heard to attack statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. Lott Inv. Corp. v. Gerbing, 242 Ga. 90 , 249 S.E.2d 561 (1978).

One who would strike down state statute as violative of federal Constitution must show that the person is within class of persons with respect to whom the Act is unconstitutional and that the alleged unconstitutional feature injures the person. Lott Inv. Corp. v. Gerbing, 242 Ga. 90 , 249 S.E.2d 561 (1978).

Plaintiff who challenges a state practice must demonstrate realistic danger of sustaining direct injury from its application. Western Bus. Sys. v. Slaton, 502 F. Supp. 746 (N.D. Ga. 1980).

Important factor in considering ripeness is whether the tendered issue involves uncertain and contingent future events that may not occur as anticipated, or indeed may not occur at all. Federal Election Comm'n v. Lance, 635 F.2d 1132 (5th Cir.), appeal dismissed and cert. denied, 453 U.S. 917, 101 S. Ct. 3151 , 69 L. Ed. 2 d 999 (1981).

Standing under establishment clause. - As to scope of the establishment clause of the first amendment and ability to demonstrate Article III standing thereunder, see American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

Standing to attack campaign finance system. - Individual citizens eligible to vote in Georgia elections, former and future candidates for state office, and organizations whose members are citizens eligible to vote in Georgia elections lacked standing to seek a declaratory judgment stating that the state campaign finance system violates their rights under the United States and Georgia Constitutions. Georgia State Conference of NAACP Branches v. Cox, 183 F.3d 1263 (11th Cir. 1999).

Standing to seek injunctive relief against city and police. - The plaintiff in a federal civil rights action had no standing to seek injunctive relief against a city and its police officers respecting certain allegedly unconstitutional practices, because the plaintiff failed to show that the plaintiff would have another encounter with the police and would again be subjected to unconstitutional treatment. Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).

Standing to challenge government-sponsored religious statements. - City residents and taxpayers had standing to challenge the display of a city seal used both on city stationery and to emboss official documents, since a non-economic injury which results from a party's being subjected to unwelcome religious statements can support a standing claim. Saladin v. City of Milledgeville, 812 F.2d 687 (11th Cir. 1987).

Standing to contest forfeiture. - In order to contest a forfeiture, a claimant must first demonstrate a sufficient interest in the property to give the claimant Article III standing; otherwise, there is no "case or controversy," in the constitutional sense, capable of adjudication in the federal courts. United States v. $38,000.00 in United States Currency, 816 F.2d 1538 (11th Cir. 1987).

Standing to challenge government's timber cutting policy. - In order for timber purchasers to have standing to bring an action challenging the government's timber cutting policy, they were required to meet the minimal Article III requirement of personally suffering an actual or threatened injury due to the government's allegedly illegal conduct. Their injury must have been fairly traceable to the government's actions and redressable by order of the court. Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 736 F. Supp. 267 (N.D. Ga. 1990), aff'd in part and vacated in part on other grounds, 993 F.2d 800 (11th Cir. 1993), cert. denied, 510 U.S. 1040, 114 S. Ct. 683 , 126 L. Ed. 2 d 651 (1994).

Standing to contest constitutionality of statutory penalty. - Defendant who was sentenced to less than the maximum penalty provided by the sodomy statute lacked standing to contest whether such maximum penalty constitutes cruel and unusual punishment. King v. State, 265 Ga. 440 , 458 S.E.2d 98 (1995).

Internal Revenue Service regulations. - Institute that certifies those who offer tax service to the public failed in its attempt to enjoin the Internal Revenue Service from enforcement of a directive prohibiting the use of the term "certified" by an individual who practices as an "enrolled agent" for the Internal Revenue Service; the institute failed to establish that the directive placed an unconstitutional burden on its first amendment rights in that it did not show any instance of threatened enforcement action by the Internal Revenue Service and did not show a concrete factual situation sufficient to establish a case in controversy. Institute of Certified Practitioners, Inc. v. Bentsen, 874 F. Supp. 1370 (N.D. Ga. 1994).

Standing to challenge prison policy. - An inmate does not have standing to assert the first amendment rights of prison guards relative to a prison policy prohibiting its employees from communicating directly with the parole board on behalf of prisoners. Harris v. Evans, 20 F.3d 1118 (11th Cir.), cert. denied, 513 U.S. 1045, 115 S. Ct. 641 , 130 L. Ed. 2 d 546 (1994).

Teacher had standing to challenge Moment of Quiet Reflection Act. - Plaintiff's status as a teacher, the plaintiff's objection to implementing the moment of silence in the classroom, and the plaintiff's subsequent suspension and termination were sufficient to afford standing to challenge the Moment of Quiet Reflection in Schools Act. Bown v. Gwinnett County Sch. Dist., 895 F. Supp. 1564 (N.D. Ga. 1995), aff'd, 112 F.3d 1464 (11th Cir. 1997).

Bailee of currency may challenge forfeiture. - The bailee of an amount of currency, who was in constructive possession of the currency when it was seized, had Article III standing to contest forfeiture of the currency. United States v. $38,000.00 in United States Currency, 816 F.2d 1538 (11th Cir. 1987).

Uninjured plaintiff lacks standing in antitrust action. - Plaintiff, a generator of electricity, had no standing to sue under the Clayton Act, 15 U.S.C. § 15, for alleged antitrust violations resulting from wholesale power sales contract requiring members of wholesaler to purchase all power therefrom, because plaintiff suffered no injuries. Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986), aff'd, 844 F.2d 1538 (11th Cir. 1988).

Conversion of bankruptcy proceeding. - There was no case or controversy, and thus no federal jurisdiction, because debtor rendered moot Chapter 7 discharge by converting the bankruptcy proceeding to Chapter 13, and because the possibility of debtor's reconversion to Chapter 7 was not ripe for adjudication. Mann v. Hahn, 167 Bankr. 693 (Bankr. N.D. Ga. 1994).

Summary judgment. - Once it is determined that some of the plaintiffs have standing, standing exists for purposes of determining that a case or controversy is before the court under Article Three of the Constitution, but if it is clear that a plaintiff is without standing to maintain the action, summary judgment in favor of defendant on this ground is appropriate. International Ass'n of Firefighters, Local 349 v. City of Rome, 682 F. Supp. 522 (N.D. Ga. 1988).

Standing in bankruptcy proceeding. - Though corporation holding second security deed on debtor's property lacked standing to recover under Bankruptcy Code, 11 U.S.C. § 362(h), corporation did have standing to seek other relief, including actions to initiate contempt proceedings or to seek declaration that defendant's foreclosure was void, in action against defendant, who held first priority security deed and whose advertising of property for foreclosure violated automatic stay. Barnett Bank v. Trust Co. Bank (In re Ring), 178 Bankr. 570 (Bankr. S.D. Ga. 1995).

Standing to assert violation of "one person, one vote" rule. - In an action against the state, its state legislative bodies, the Fulton County House and Senate delegations, other unspecified local legislative delegations, the Governor, the Lieutenant Governor, the Speaker of the House, and other state government officials alleging that the method by which the Georgia General Assembly enacted "local legislation" violated the principle of "one person, one vote," the plaintiffs, who were residents of and registered voters in unincorporated Fulton County, had standing on the basis of their entitlement to full and equal representation without invidious discrimination. DeJulio v. Georgia, 127 F. Supp. 2d 1274 (N.D. Ga. 2001).

State flag. - African-American citizen's argument that the state flag, incorporating the stars and bars of the Confederate flag, compelled the citizen to be the courier of an ideological message that the citizen found morally objectionable failed because the flag on its face did not promulgate a sufficiently clear message of discrimination and because the record contained no evidence that the citizen was forced to acknowledge the flag in any way. Coleman v. Miller, 885 F. Supp. 1561 (N.D. Ga. 1995), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199 , 140 L. Ed. 2 d 328 (1998).

Standing not found. - In order to satisfy Article III's case or controversy requirement, a party must have standing to bring a case. Since the injury that plaintiffs allege, namely the monies lost as a result of the failure to perfect the security interest, is too hypothetical to constitute injury in fact, the plaintiffs lacked standing to bring a motion for class certification in their suit against the U.S. Bank. U.S. Bank's suit against other banking institutions may have the effect of recouping all funds lost as a result of the failure to perfect, thereby nullifying any injury that U.S. Bank's actions would have had on the bondholders. As the outcome of an existing suit could effectively eliminate any injury suffered by the bondholders, plaintiffs have failed to adequately demonstrate that they suffered actual, as opposed to conjectural or hypothetical, injury in fact. In re S. Fulton Hosp. Certificate Holder Litig., F. Supp. 2d (N.D. Ga. Mar. 28, 2003).

4. Pendent Jurisdiction

Federal district courts may decline jurisdiction of state claim if goals of judicial economy and convenience and fairness to litigants would not be furthered. Davis v. Griffin-Spalding County Bd. of Educ., 445 F. Supp. 1048 (N.D. Ga. 1975).

Requirements for pendent jurisdiction. - If a federal claim has substance sufficient to confer subject matter jurisdiction on the court, and both the state and federal claims derive from a common nucleus of operative fact, but where, if considered without regard to their federal or state character, a plaintiff's claims are such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole. Davis v. Griffin-Spalding County Bd. of Educ., 445 F. Supp. 1048 (N.D. Ga. 1975).

Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional case. Pope v. City of Atlanta, 240 Ga. 177 , 240 S.E.2d 241 (1977), cert. denied, 440 U.S. 936, 99 S. Ct. 1281 , 59 L. Ed. 2 d 494 (1979).

Pendent jurisdiction relates to issues of which federal court would not have jurisdiction if raised independently of federal claim. Bailey v. Wilkes, 162 Ga. App. 410 , 291 S.E.2d 418 (1982).

If federal court would have refrained from or been precluded from exercising pendent jurisdiction over state claims, then subsequent suit in state court would not be barred by res judicata. Bailey v. Wilkes, 162 Ga. App. 410 , 291 S.E.2d 418 (1982).

Limitations on federal court jurisdiction. - Because federal courts are courts of limited jurisdiction, due regard for the constitutional allocation of powers between the state and federal systems requires a federal court scrupulously to confine itself to the jurisdiction conferred on it by Congress and permitted by the Constitution. In re Carter, 618 F.2d 1093 (5th Cir. 1980), cert. denied, 450 U.S. 949, 101 S. Ct. 1410 , 67 L. Ed. 2 d 378 (1981).

Federal court has pendent jurisdiction over state claim not otherwise cognizable in that tribunal if and only if it has jurisdiction over the federal claim. Bailey v. Wilkes, 162 Ga. App. 410 , 291 S.E.2d 418 (1982).

Lack of subject matter jurisdiction over state case. - Even after entry of final judgment, the constitutional balance of policies that underlies the Art. III grant of judicial power impels the vacation of that judgment and remand to the state court having jurisdiction when it is determined that the federal court was without power to act because of a lack of subject matter jurisdiction over a removed case. In re Carter, 618 F.2d 1093 (5th Cir. 1980), cert. denied, 450 U.S. 949, 101 S. Ct. 1410 , 67 L. Ed. 2 d 378 (1981).

There are three factors for a federal district court to consider in deciding whether or not to abstain: (1) whether the disposition of a question of state law involved in the case can eliminate or narrow the scope of the federal constitutional issue; (2) whether the state law question presents difficult, obscure, or unclear issues of state law; and (3) whether a federal decision could later conflict with subsequent state court resolutions concerning the same regulatory program or scheme, thus engendering more confusion. High Ol' Times, Inc. v. Busbee, 621 F.2d 135 (5th Cir. 1980).

Effect of dismissal of federal claim. - Because the federal court dismissed appellant's federal claim, there was nothing from which it could be urged that appellant's state claim would have been pendent. There otherwise being no federal jurisdiction, the federal court would not have been a competent tribunal to hear appellant's state claims. Bailey v. Wilkes, 162 Ga. App. 410 , 291 S.E.2d 418 (1982).

Supreme Court Jurisdiction

Jurisdiction of Supreme Court over cases involving ambassadors, other public ministers, and consuls is not exclusive. The words of the Constitution do not make the original jurisdiction of the Supreme Court exclusive, and they leave Congress free, not to infringe upon the jurisdiction of the Supreme Court, but to give concurrent jurisdiction to the lower courts. Farnsworth v. Sanford, 115 F.2d 375 (5th Cir. 1940), cert. denied, 313 U.S. 586, 61 S. Ct. 1109 , 85 L. Ed. 1541 (1941).

Validity of concurrent jurisdiction of district court. - In a case in which a former attache to an embassy was tried and convicted for conspiracy under the Espionage Act, 50 U.S.C. § 31 et seq. (repealed by 62 Stat. 862, effective Sept. 1, 1948), there was no unconstitutional intrusion on the original jurisdiction of the Supreme Court, and exercise of jurisdiction by a district court, which had concurrent jurisdiction by the terms of an Act of Congress, was valid. Farnsworth v. Sanford, 115 F.2d 375 (5th Cir. 1940), cert. denied, 313 U.S. 586, 61 S. Ct. 1109 , 85 L. Ed. 1541 (1941).

Judicial status of former attache. - An attache to an embassy is a public minister, but only so long as the attache is attached to the embassy. When the attache ceases to be attached and returns to the attache's own country, the attache is no longer entitled to diplomatic immunity and a case against the attache afterwards instituted does not affect an ambassador or minister within the meaning of the Constitution. Farnsworth v. Sanford, 115 F.2d 375 (5th Cir. 1940), cert. denied, 313 U.S. 586, 61 S. Ct. 1109 , 85 L. Ed. 1541 (1941).

Original habeas petitions. - The federal Antiterrorism and Effective Death Penalty Act of 1996 does not deprive the Supreme Court of jurisdiction to entertain original habeas petitions. Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333 , 135 L. Ed. 2 d 827 (1996).

Trial by Jury

There is nothing in Constitution of United States requiring states to provide jury of 12 in trial of criminal cases, though the Constitution does require the federal courts to have that number. Trial by jury in a federal court means a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and in England when the Constitution was adopted. Among those elements was a jury composed of 12 persons, neither more nor less. Coates v. Lawrence, 46 F. Supp. 414 (S.D. Ga. 1942), aff'd, 131 F.2d 110 (5th Cir. 1942), cert. denied, 318 U.S. 759, 63 S. Ct. 532 , 87 L. Ed. 1132 (1943).

No freedoms, including freedoms of speech and press, are absolute, and liberty of press is subordinate to independence of judiciary and the proper administration of justice. The latter is necessarily true, for only in the courts can freedom of the press and other constitutional rights be preserved. The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. Atlanta Newspapers, Inc. v. State, 216 Ga. 399 , 116 S.E.2d 580 (1960).

Press should be given widest latitude possible in exercise of its freedom that is consonant with orderly administration of justice, trial by a fair and impartial jury, and the freedom and independence of the courts in the exercise of their constitutional rights and duties. Atlanta Newspapers, Inc. v. State, 216 Ga. 399 , 116 S.E.2d 580 (1960).

Press interference with trial of criminal case by impartial jury. - A responsible press, appreciating as it must the great power of the press in a democratic society, should refrain from publishing and distributing news articles which, in the normal course of events would, or which it could reasonably anticipate would, interfere with the trial of a criminal case by an impartial jury; and to do so may subject it to punishment for contempt of court. Atlanta Newspapers, Inc. v. State, 216 Ga. 399 , 116 S.E.2d 580 (1960).

Defendant newspaper corporation would not be required to have reasonably anticipated that publication and distribution of articles regarding defendant would have come to the attention of the jurors or have interfered with the trial of the case by an impartial jury; for they had a right to expect that the jury would have been kept together until the conclusion of the trial or otherwise properly instructed upon being permitted to disperse. Atlanta Newspapers, Inc. v. State, 216 Ga. 399 , 116 S.E.2d 580 (1960).

General Consideration

Full faith and credit provision is a rule of evidence rather than of jurisdiction. FTC v. American Legal Distribs., Inc., 739 F. Supp. 1535 (N.D. Ga. 1990); United States Fid. & Guar. Co. v. Lawson, 15 F. Supp. 116 (S.D. Ga. 1936).

Full faith and credit provision is not an inexorable and unqualified command. It leaves some scope for state control within its borders of affairs which are peculiarly its own. There are limits to the extent to which the laws and policy of one state may be subordinated to those of another. Pink v. A.A.A. Hwy. Express, Inc., 314 U.S. 201, 62 S. Ct. 241 , 86 L. Ed. 152 (1941).

United States courts must give full faith and credit to judgments of state courts. Nicolson v. Citizens & S. Nat'l Bank, 50 F. Supp. 92 (S.D. Ga. 1943).

Full faith and credit clause is not binding on federal courts. FTC v. American Legal Distribs., Inc., 739 F. Supp. 1535 (N.D. Ga. 1990).

Full faith and credit clause applies only to state records and proceedings. Edmonds v. State, 201 Ga. 108 , 39 S.E.2d 24 (1946).

State courts are bound to follow decisions of Supreme Court regarding what limitations upon full faith and credit clause of the United States Constitution are permissible. Woody v. Woody, 91 Ga. App. 806 , 87 S.E.2d 222 (1955).

Power of Congress to prescribe state rules of evidence. - Aside from the full faith and credit clause of the Constitution, Congress would have no power to prescribe rules of evidence for state courts. Edmonds v. State, 201 Ga. 108 , 39 S.E.2d 24 (1946).

Full faith and credit clause does not apply to judgments of foreign countries. Cocke v. Truslow, 91 Ga. App. 645 , 86 S.E.2d 686 (1955).

Application only to judgments obtained within courts of the United States. - Comity alone could authorize recognition of a Mexican divorce. The general comity rule is that in a proper case the laws and judicial proceedings of one state will be enforced in another state, provided they do not involve anything immoral, contrary to public policy, or violative of the conscience of the state called upon to give them effect. It is fundamental that comity will not be applied where a divorce is obtained in a foreign state under circumstances which offend the public policy of this state as found in its Constitution and statutes and the decisions of its courts. Christopher v. Christopher, 198 Ga. 361 , 31 S.E.2d 818 (1944).

English court decree accorded conclusive effect. - A decree of an English court of chancery, rendered when both parties were citizens of that realm, which adjudges that the defendant therein is liable to the plaintiff in a given sum of money, no question being raised as to the court having jurisdiction of the subject matter or of the parties, and there being no suggestion of fraud in its rendition, will be given conclusive effect by the courts of this state. Coulborn v. Joseph, 195 Ga. 723 , 25 S.E.2d 576 (1943).

Full faith and credit will be accorded a foreign decree only when properly proved. Benefield v. Harris, 143 Ga. App. 709 , 240 S.E.2d 119 (1977).

Manner of proving foreign judgments limited by federal statute. - A state cannot by merely failing or refusing to amend its code place greater restrictions upon a party seeking to rely on a foreign judgment than are imposed by the procedure enacted by Congress pursuant to the full faith and credit clause of the United States Constitution. Peeples v. Peeples, 103 Ga. App. 462 , 119 S.E.2d 710 (1961).

Copy of foreign judgment only required in action based thereon. - To maintain an action based on judgment from another state, it is not necessary to show an authenticated copy of the record of the entire divorce and alimony proceedings; but a prima facie case is made by pleading and proving a properly authenticated copy of the judgment itself. Creaden v. Krogh, 75 Ga. App. 675 , 44 S.E.2d 136 (1947).

Certification of copy of foreign judgment by associate judge sufficient. - A copy of the judgment of a court of a sister state attested by the clerk of such court with a certificate by one of the judges of the court that such attestation is in due form is sufficient to authorize its admission in evidence even though the judge signing the certificate was not the chief or presiding judge of such court. Peeples v. Peeples, 103 Ga. App. 462 , 119 S.E.2d 710 (1961).

Full faith and credit clause does not compel state to adopt any particular set of rules of conflict of laws; it merely sets certain minimum requirements which each state must observe when asked to apply the law of a sister state. Crider v. Zurich Ins. Co., 380 U.S. 39, 85 S. Ct. 769 , 13 L. Ed. 2 d 641 (1965).

Mandatory judicial recognition of laws and legal proceedings of sister states. - The courts of this state must judicially recognize the laws of the several states, as published by authority, without proof, and properly authenticated judicial proceedings of a sister state are entitled to the same full faith and credit as they have by law or usage in the courts of the state from which they are taken. Kelly v. Kelly, 115 Ga. App. 700 , 155 S.E.2d 732 (1967).

Foreign judgment entitled to same effect as foreign jurisdiction gives it. - Lawfully obtained judgments of the court of one state, when sued on or pleaded or introduced in evidence in another state are entitled to receive the same full faith, credit, and respect that they are accorded in the state where rendered. Earley v. Earley, 165 Ga. App. 483 , 300 S.E.2d 814 (1983).

Foreign judgment subject to attack for lack of jurisdiction or fraud only. - Under the full faith and credit clause of the United States Constitution a judgment of a foreign court will be enforced by the courts of this state unless it is shown that the foreign court lacked jurisdiction of the person or subject matter or that the judgment was procured by fraud. Earley v. Earley, 165 Ga. App. 483 , 300 S.E.2d 814 (1983).

Ex parte application for letters of administration. - Georgia court was not required to give full faith and credit to any findings or presumptions made by a New Jersey court on the issue of domicile in a proceeding which amounted to no more than an ex parte application for letters of administration of an estate. Wilson v. Willard, 183 Ga. App. 204 , 358 S.E.2d 859 (1987).

Contractual provision that is not valid where made does not become part of the contract between the parties. GECC v. Home Indem. Co., 168 Ga. App. 344 , 309 S.E.2d 152 (1983).

Conviction not precluded based on notice. - While out of state convictions must be given the same faith and credit to which they are entitled in the state where they are rendered, the full faith and credit clause does not prevent Georgia from according felony status in Georgia to out-of-state misdemeanor criminal convictions in those instances where the Georgia statute provides sufficient notice to persons of ordinary intelligence than any out-of-state misdemeanor convictions that meet the specified statutory requirements will be deemed the equivalent of a felony conviction in Georgia. Thus, since the defendant was charged with being a convicted felon in possession of a firearm, contrary to O.C.G.A. § 16-11-131 , based on a misdemeanor involuntary manslaughter conviction in another state, for which the maximum penalty was five years imprisonment, if the statute had provided defendant adequate notice that the defendant's misdemeanor conviction could be used as a predicate for this charge, the full faith and credit clause would not have precluded the defendant's conviction. State v. Langlands, 276 Ga. 721 , 583 S.E.2d 18 (2003).

Court of appeals erred in ruling that a physician's claims that a limited liability company (LLC) violated the Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-399(b) , were not barred by res judicata because the physician was barred by a Texas judgment from filing an FBPA claim against the LLC in Georgia, and a Georgia court could not make its own determination regarding whether the forum selection clause in the parties' agreement precluded the filing of an FBPA claim in Georgia; there was no public policy exception to the Full Faith and Credit Clause, and the Texas judgment went to the merits of, and adversely controlled, the physician's claim that the forum selection clause was inapplicable to an FBPA claim. Amerireach.com, LLC v. Walker, 290 Ga. 261 , 719 S.E.2d 489 (2011).

Cited in Potter v. Potter, 40 Ga. App. 324 , 149 S.E. 579 (1929); O'Malley v. Wilson, 182 Ga. 97 , 185 S.E. 109 (1936); John Hancock Mut. Life Ins. Co. v. Yates, 184 Ga. 42 , 190 S.E. 560 (1937); Fidelity-Phenix Fire Ins. Co. v. Cortez Cigar Co., 92 F.2d 882 (5th Cir. 1937); Foremost Dairy Prod., Inc. v. Sawyer, 185 Ga. 702 , 196 S.E. 436 (1938); Drake v. Drake, 187 Ga. 423 , 1 S.E.2d 573 (1939); Smith v. Globe Indem. Co., 65 Ga. App. 838 , 16 S.E.2d 601 (1941); McAlhany v. Allen, 195 Ga. 150 , 23 S.E.2d 676 (1942); Coulborn v. Joseph, 195 Ga. 723 , 25 S.E.2d 576 (1943); Sanders v. Sanford, 138 F.2d 415 (5th Cir. 1943); Tademy v. Scott, 68 F. Supp. 556 (N.D. Ga. 1945); Jarrard v. Southeastern Shipbuilding Corp., 163 F.2d 960 (5th Cir. 1947); Graves v. Carter, 207 Ga. 308 , 61 S.E.2d 282 (1950); Richards v. Richards, 85 Ga. App. 605 , 69 S.E.2d 911 (1952); Hedquist v. Gottke, 209 Ga. 681 , 75 S.E.2d 18 (1953); Blood v. Earnest, 217 Ga. 642 , 123 S.E.2d 913 (1962); Watkins v. Conway, 221 Ga. 374 , 144 S.E.2d 721 (1965); Funderburg v. Wold, 117 Ga. App. 638 , 161 S.E.2d 376 (1968); Richardson v. Strickland, 225 Ga. 319 , 168 S.E.2d 146 (1969); Connell v. Connell, 119 Ga. App. 485 , 167 S.E.2d 686 (1969); Leathers v. Klebold, 227 Ga. 683 , 182 S.E.2d 423 (1971); Showalter v. Sandlin, 229 Ga. 405 , 191 S.E.2d 828 (1972); Mahler v. Paquin, 142 Ga. App. 582 , 236 S.E.2d 512 (1977); Kronitz v. Fifth Ave. Dance Studio, Inc., 242 Ga. 398 , 249 S.E.2d 80 (1978); Bailey v. London Marina, Inc., 151 Ga. App. 73 , 258 S.E.2d 738 (1979); FDIC v. Windland Co., 245 Ga. 194 , 264 S.E.2d 11 (1980); Hayes v. Hayes, 248 Ga. 526 , 283 S.E.2d 875 (1981); City of Alma v. Benham, 170 Ga. App. 143 , 316 S.E.2d 477 (1984); Wilson v. Mills, 172 Ga. App. 328 , 323 S.E.2d 251 (1984); Park v. Bailey, 329 Ga. App. 569 , 765 S.E.2d 721 (2014).

Judicial Proceedings

1. Jurisdiction

Jurisdiction over members of class required for recognition of foreign judgment affecting them. - As a condition precedent for the application of the full faith and credit provision of the United States Constitution to the members of a class who may be affected by the judicial proceedings of another state, it must appear that such court had jurisdiction to bind the members of the class wherever located. Eminent Household of Columbian Woodmen v. Bryant, 62 Ga. App. 167 , 8 S.E.2d 438 (1940).

Judgment of foreign court having jurisdiction controlling in other states. - This section compels that controversies be stilled so that if a state court has jurisdiction of the parties and subject matter, its judgment controls in other states to the same extent as it does in the state where rendered. Riley v. New York Trust Co., 315 U.S. 343, 62 S. Ct. 608 , 86 L. Ed. 885 (1942).

Presumption favoring jurisdiction conclusive absent adverse evidence in record. - According to the common-law rule, adhered to at the present time in most states, the presumption in favor of the jurisdiction of a court of general jurisdiction is conclusive, and its judgment cannot be collaterally attacked if no want of jurisdiction is apparent of record. Creaden v. Krogh, 75 Ga. App. 675 , 44 S.E.2d 136 (1947).

Decree partially invalid for want of jurisdiction. - A consent decree of a court of another state, which, in part, seeks to transfer title to realty in this state that had previously been set aside to a widowed spouse and minor children as a year's support, shows upon its face that, insofar as transferring title to realty, the court was without jurisdiction of the subject matter; and, accordingly, that part of the decree is not such a judgment as comes within the full faith and credit clause of the Constitution. King v. King, 203 Ga. 811 , 48 S.E.2d 465 (1948).

For purpose of acquiring in personam jurisdiction in Georgia, the term "doing business" means engaging for profit in some practice either repeatedly or possibly with the intention that the practice be repeated and does not include the making of one contract with a nonresident. Allied Fin. Co. v. Prosser, 103 Ga. App. 538 , 119 S.E.2d 813 (1961).

U.S. Const. art. IV, sec. I has no application if the foreign judgment shows on its face that there was no jurisdiction of the person of the defendant, and thus shows a violation of due process. Greenfield v. Chronicle Printing Co., 107 Ga. App. 442 , 130 S.E.2d 526 (1963).

Collateral attack on decree if foreign court record purports to show jurisdiction. - A decree might be collaterally attacked by proof that the court which rendered it has no jurisdiction of the parties or cause of action, even though the record of the proceedings in the foreign court purports to show jurisdiction. Logan v. Nunnelly, 128 Ga. App. 43 , 195 S.E.2d 659 (1973).

Burden of proof on party asserting lack of jurisdiction. - The burden is upon the party asserting the invalidity of an out-of-state decree to show that it is not binding, and the jurisdiction of the out-of-state court is to be presumed until it is proved by evidence or the record itself. Logan v. Nunnelly, 128 Ga. App. 43 , 195 S.E.2d 659 (1973).

Litigation of issue of jurisdiction of foreign court binding on other court. - In collateral attack on a judgment of another court respecting jurisdiction over the defendant, once it is shown that such issue was fully litigated in the original court, the judgment is binding under the full faith and credit clause. Fidelity Std. Life Ins. Co. v. First Nat'l Bank & Trust Co., 382 F. Supp. 956 (S.D. Ga. 1974), aff'd, 510 F.2d 272 (5th Cir.), cert. denied, 423 U.S. 864, 96 S. Ct. 125 , 46 L. Ed. 2 d 94 (1975).

Collateral attacks on foreign judgments for want of jurisdiction. - The broad and general statement that a collateral attack upon a foreign judgment for want of jurisdiction is not barred by the full faith and credit clause of the Constitution is subject to exceptions. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816 , 219 S.E.2d 39 (1975).

If a party is personally served that party is subject to in personam jurisdiction of courts of a foreign state and cannot collaterally attack a judgment of such court. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816 , 219 S.E.2d 39 (1975).

If the question of jurisdiction is raised in foreign court and decided adversely to a party, that party may not collaterally attack this determination. If the record reveals that the personal jurisdiction issue was raised by a defendant and decided adversely to the defendant by a court of otherwise competent jurisdiction, the judgment of that court is conclusive, is res judicata, and may not be collaterally attacked. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816 , 219 S.E.2d 39 (1975).

A judgment of a foreign court will be enforced by the courts of this state. However, that judgment may be collaterally attacked where the foreign court lacked jurisdiction of the person or subject matter. Yet, if the defendant fails to appear at trial but makes a post-judgment appearance and moves to set aside the judgment, the issues raised and decided adversely to the defendant in the post-judgment hearing by a foreign court of otherwise competent jurisdiction are conclusive, res judicata, and may not be collaterally attacked in the Georgia court. International Sys. v. Bladen County, 168 Ga. App. 316 , 308 S.E.2d 679 (1983).

Presumption of jurisdiction where merely dependent on existence of facts. - If the question as to the jurisdiction of the court depends merely upon the existence or nonexistence of a fact, and the judgment is otherwise regular, and the court otherwise a court of competent jurisdiction, it is to be presumed that the court found facts to exist such as warranted its assuming jurisdiction, and such finding of fact cannot be collaterally attacked. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816 , 219 S.E.2d 39 (1975).

On facts, jurisdictional issue not subject to collateral attack. - Because a defendant made a special appearance to contest personal jurisdiction, was fully heard, was overruled as to this objection and took no further part in the case or sought review of the adverse ruling, the judgment entered against the party on the merits was res judicata with regard to the jurisdictional issue and not subject to collateral attack on that ground when sued upon in another state. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816 , 219 S.E.2d 39 (1975).

Effect of foreign statute conferring continuing jurisdiction over minor upon court granting divorce on nonresident. - The Indiana statute that confers continuing jurisdiction over the minor child upon the court that granted the divorce decree cannot confer jurisdiction on a trial court in Indiana over an out-of-state resident who does not consent to or become subject in some way to the jurisdiction of the Indiana court. Schowe v. Amster, 236 Ga. 720 , 225 S.E.2d 289 (1976).

Foreign adjudications of jurisdictional issues res judicata in other courts. - The doctrine of res judicata must be applied to questions of jurisdiction in cases arising in state courts involving the application of the full faith and credit clause where, under the law of the state in which the original judgment was rendered, such adjudications are not susceptible to collateral attack. Kingdon v. Foster, 238 Ga. 37 , 230 S.E.2d 855 (1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2179 , 53 L. Ed. 2 d 226 (1977).

Personal jurisdiction of foreign court is necessary before judgment from foreign jurisdiction will be given full faith and credit. Benefield v. Harris, 143 Ga. App. 709 , 240 S.E.2d 119 (1977).

Effect of section on attacking jurisdiction of foreign courts. - Neither the full faith and credit clause of the United States Constitution nor any Act of Congress passed in pursuance thereof, forbids or prevents an inquiry into the jurisdiction of the court by which the judgment offered in evidence in another state was rendered. Masters v. ESR Corp., 150 Ga. App. 658 , 258 S.E.2d 224 (1979).

Judgment of foreign court lacking personal jurisdiction is not entitled to full faith and credit in the State of Georgia, inasmuch as a judgment of any court that lacks jurisdiction is void. Capital Bank v. Levy, 151 Ga. App. 819 , 261 S.E.2d 722 (1979).

The Mississippi rule that a surety is bound to a judgment against its principal is entitled to no extraterritorial effect in a suit against the surety in Georgia, where the surety was not a party or privy to the Mississippi litigation involving the principal. Rouse Constr., Inc. v. Transamerica Ins. Co., 750 F.2d 1492 (11th Cir. 1985).

Sole basis for precluding collateral attack on jurisdiction of foreign court. - A collateral attack upon a petition to domesticate a foreign (sister state) judgment that it was based on lack of personal jurisdiction is precluded in this state only if the defendant has appeared in the foreign court and has thus had an opportunity to litigate the issue. Maxwell v. Columbia Realty Venture, 155 Ga. App. 289 , 270 S.E.2d 704 (1980).

In a suit brought to domesticate a Pennsylvania judgment for back taxes where the record showed that the defendant appeared, by and through counsel, and contested the Pennsylvania suit on its merits, an attack on the jurisdiction of the Pennsylvania court was without merit. Hopkins v. City of Philadelphia, 155 Ga. App. 534 , 271 S.E.2d 672 (1980).

Personal jurisdiction in revival action. - Because a defendant had the requisite minimum contacts with the forum state for that state to exercise personal jurisdiction over the defendant during the original litigation, those same contacts were sufficient to provide personal jurisdiction to the trial court for any revival action concerning the judgment entered in the course of the original litigation. Kaylor v. Turner, 210 Ga. App. 2 , 435 S.E.2d 233 (1993).

2. Choice of Law

In general. - A class of cases in which recognition of the law of the situs of the contract has been required comprises cases in which a right validly acquired under the law of the other state is set up by way of defense to an action in the forum, the law of which is opposed or contrary to the defensive matter. In such cases the requirement of the full faith and credit provisions is aided by the due process and contract provisions of the Constitution, to bring about recognition of foreign law, since enforcing the contract or other right stripped of the defensive provision valid under the applicable law would be making a new and different contract or creating a new right, and this would amount to a taking of property without due process of law, or in violation of the contract. Terry v. Mays, 161 Ga. App. 328 , 291 S.E.2d 44 (1982).

Validity, form, and effect of contracts are to be determined generally by law of place where made. John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 57 S. Ct. 129 , 81 L. Ed. 106 (1936).

Effect on section of prosecution for possession of whiskey bearing revenue stamps from sister state only. - The offense of possessing whiskey in Georgia not bearing the required revenue stamps is not mitigated, nor is the prosecution defeated, by the fact that the whiskey bears the revenue stamps of another state; such prosecution is not a violation of the interstate commerce clause of the Constitution of the United States or of U.S. Const., art. IV, sec. I. Herbert v. State, 60 Ga. App. 633 , 4 S.E.2d 843 (1939).

Rights of contractual parties governed by statutes and decisions of state where contract made. - The rights of the parties to a contract made and to be performed in another state are controlled not only by that state's pertinent statutes but by the decisions of its appellate courts construing and applying those statutes. Motz v. Alropa Corp., 192 Ga. 176 , 15 S.E.2d 237 (1941).

Nonresident policyholder subject to liabilities imposed by laws of insurance corporation's domicile. - If a resident of this state accepts a policy of insurance issued by a mutual insurance corporation of another state, by the terms of which the insured becomes a member of the corporation, the insured thereby is subject to the liabilities imposed upon its members by the laws of the domiciliary state. Gaston v. Keehn, 69 Ga. App. 500 , 26 S.E.2d 107 (1943).

Giving effect to foreign statute absent compliance by plaintiff with domestic statute. - Because plaintiff knew at time of sale of automobiles to Georgia dealer that they were to be brought into Georgia, and failed to have executed either a title retention contract or a bill of sale to secure debt and to record such an instrument, either of which, under Georgia law, would have been an appropriate step to protect his interest in the automobiles, the full faith and credit clause of the United States Constitution did not require, under the circumstances, that Georgia courts give extraterritorial effect to the Florida automobile title registration law. Cook Motor Co. v. Richardson, 103 Ga. App. 129 , 118 S.E.2d 502 (1961).

Extraterritorial effect of state's exclusive statutory remedy for injuries to its residents outside state. - A state can fix one exclusive remedy for personal injuries involving its residents wherever the accident happens and the full faith and credit clause requires the other states to refuse to enforce any inconsistent remedy. Crider v. Zurich Ins. Co., 380 U.S. 39, 85 S. Ct. 769 , 13 L. Ed. 2 d 641 (1965).

Burden of showing superiority of foreign state's interest over that of forum on party so asserting. - Every state is prima facie entitled to enforce in its own courts its own statutes, lawfully enacted. One who challenges that right, because of the force given to a conflicting statute of another state by the full faith and credit clause or for any other reason, assumes the burden of showing, upon some rational basis, that of the conflicting interests involved those of the foreign state are superior to those of the forum. Security Ins. Group v. Plank, 133 Ga. App. 815 , 212 S.E.2d 471 (1975).

Application of forum's statute absent proof of foreign statute. - In a case in which the plaintiffs sought to domesticate action in Maryland for debt against a partnership in which a Georgia resident was served by allegedly mailing to the Georgia resident a copy of the pleadings in the State of Georgia, the law of Georgia as to validity of service would apply in the absence of any proof of the Maryland statute. Maxwell v. Columbia Realty Venture, 155 Ga. App. 289 , 270 S.E.2d 704 (1980).

3. Judgments Generally

Effect given to judgments of sister state to same extent as given in sister state. - Action on a foreign judgment, being properly authenticated and rendered by a court of a sister state, is to be given the same full faith and credit in the courts of this state as it would have in the courts of the state where it was rendered. Albert v. Albert, 86 Ga. App. 560 , 71 S.E.2d 904 (1952).

Full faith and credit clause requires that judgment in one state must be given such full effect in another state as it is given by the law and usage of the state of its origin. Peeples v. Peeples, 103 Ga. App. 462 , 119 S.E.2d 710 (1961).

Foreign judgments given such effect as accorded in rendering state. - It is fundamental that under the full faith and credit clause the courts of this state are required to give only such effect to a judgment of a sister state as it would have in that state. Jackson v. Jackson, 231 Ga. 751 , 204 S.E.2d 297 (1974).

Judgments of courts of one state must be given the same faith and credit in another state as they have by law or usage in the courts of the state rendering them. Fidelity Std. Life Ins. Co. v. First Nat'l Bank & Trust Co., 382 F. Supp. 956 (S.D. Ga. 1974), aff 'd, 510 F.2d 272 (5th Cir.), cert. denied, 423 U.S. 864, 96 S. Ct. 125 , 46 L. Ed. 2 d 94 (1975).

Full faith and credit accorded judgments based on constitutional laws of sister states. - Full faith and credit will be accorded by Georgia to judgments rendered in sister states based upon the constitutional laws of those states. Allied Fin. Co. v. Prosser, 103 Ga. App. 538 , 119 S.E.2d 813 (1961).

Recognition of foreign judgment under review by supreme court of state rendering judgment. - This section requires courts of Georgia to give full faith and credit to a judgment of another state's court even where it is shown that the supreme court of that state has such judgment under review. Ferster v. Ferster, 220 Ga. 319 , 138 S.E.2d 674 (1964).

Under U.S. Const., art. IV, sec. I, judgment of foreign court will be enforced by courts of this state. That judgment, however, may be collaterally attacked where the foreign court lacked jurisdiction of the person or subject matter or where the judgment was procured by fraud. Gordon v. Gordon, 237 Ga. 171 , 227 S.E.2d 53 (1976).

Foreign judgments entitled to full faith and credit. - Under the full faith and credit clause, a judgment of a foreign court will be enforced by the courts of this state unless it is shown that the foreign court lacked jurisdiction of the person or subject matter or that the judgment was procured by fraud. Dropkin v. Dropkin, 237 Ga. 768 , 229 S.E.2d 621 (1976); Veazey v. Veazey, 246 Ga. 376 , 271 S.E.2d 449 (1980); Paris v. Cooper, 158 Ga. App. 212 , 279 S.E.2d 507 (1981).

Courts of Georgia are required by U.S. Const., art. IV, sec. I to give full faith and credit to judgments of sister states. A judgment in one state is conclusive upon the merits in every other state, but only if the court of the first state had jurisdiction. Haire v. Eide, 150 Ga. App. 52 , 256 S.E.2d 658 (1979).

Proper foreign judgments entitled to full faith and credit. - The judgment of a court of one state, when sued on, pleaded, or introduced in evidence in another state, is entitled to receive the same full faith, credit, and respect that is accorded to it in the state where rendered. If it is valid and conclusive there, it is so in all other states. Masters v. ESR Corp., 150 Ga. App. 658 , 258 S.E.2d 224 (1979).

Foreign judgment properly proved entitled to full faith and credit. - The full faith and credit clause of the United States Constitution requires the courts of this state to give effect to a judgment granted in a sister state when the same is properly proved in a proceeding in which it may be relevant. Melnick v. Bank of Highwood, 151 Ga. App. 261 , 259 S.E.2d 667 (1979).

Judgment rendered by competent court of another state is conclusive on merits in courts of this state when made the basis of an action or defense, and the merits cannot be reinvestigated. A foreign judgment is conclusive as to all matters which were decided or could have been heard at the time of the obtaining of the foreign judgment. Melnick v. Bank of Highwood, 151 Ga. App. 261 , 259 S.E.2d 667 (1979).

Foreign judgments given same effect as accorded in rendering state. - Under the full faith and credit clause, the Georgia courts are required to give only such effect to a foreign judgment as it would have in the foreign state. Capital Bank v. Levy, 151 Ga. App. 819 , 261 S.E.2d 722 (1979).

Foreign judgments entitled to full faith and credit conclusive on merits in forum. - Lawfully obtained judgments of the court of one state, when sued on or pleaded or introduced in evidence in another state, are entitled to receive the same full faith, credit, and respect that they are accorded in the state where rendered, and the foreign judgment is conclusive as to all matters which were decided or could have been heard at the time of the obtaining of the foreign judgment. Trammell v. Burke, 154 Ga. App. 366 , 268 S.E.2d 417 (1980).

Prerequisites of foreign judgments entitled to full faith and credit. - If a judgment sued on is complete and regular upon its face and contains recitals as to the jurisdictional facts, it is entitled to full faith and credit. Lowther v. Mathers, 147 Ga. App. 82 , 248 S.E.2d 161 (1978).

U.S. Const., art. IV, sec. I makes the valid in personam judgment of one state enforceable in all other states. Williamson v. Williamson, 247 Ga. 260 , 275 S.E.2d 42 , cert. denied, 454 U.S. 1097, 102 S. Ct. 669 , 70 L. Ed. 2 d 638 (1981).

Recognition of judgment based on fraud. - There is no obligation on the part of one state to recognize a judgment rendered in another that originated in a fraudulent intention maintained and carried out on the same basis. Cochran v. Cochran, 173 Ga. 856 , 162 S.E. 99 (1931).

Decree in court of domicile of corporation is evidence in every other state that corporation is insolvent, and that a proper case exists in that state for the appointment of a receiver, and it is to be respected accordingly in obedience to the full faith and credit provision of the United States Constitution; but it is for the court to which an application for appointment of a receiver is made to decide whether the proper administration of the assets requires the appointment of a receiver. Ordinarily, in comity to the proceeding of another court of coordinate jurisdiction, it will appoint an ancillary receiver and assume administration in aid of the primary receiver. Isaac Silver & Bros. Co. v. Kalmon, 175 Ga. 244 , 165 S.E. 434 (1932).

Satisfied judgment against garnishee recognized as payment of original debt in action by original creditor. - A judgment against a garnishee, properly obtained according to the law of the state and paid, must, under the full faith and credit clause of the federal Constitution, be recognized as a payment of the original debt by the courts of another state in an action brought against the garnishee by the original creditor. H.J. Heinz Co. v. Fortson, 61 Ga. App. 52 , 6 S.E.2d 594 (1939).

Foreign judgment having effect of former adjudication in matters pending in forum state. - Under the full faith and credit clause of the Constitution, a judgment of a court of competent jurisdiction in Tennessee, if properly proved, may have the effect of former adjudication in matters pending in the courts of this state. Roadway Express, Inc. v. McBroom, 61 Ga. App. 223 , 6 S.E.2d 460 (1939).

Proper foreign judgments regarding contracts of fraternal societies binding on nonresident members. - Decisions of the United States Supreme Court affecting fraternal benefit societies have universally held that a decision by a court having jurisdiction in the state where the society or company is incorporated respecting matters of interpretation of its charter or contracts is binding on members similarly situated in other states. Eminent Household of Columbian Woodmen v. Bryant, 62 Ga. App. 167 , 8 S.E.2d 438 (1940).

Effect of judgment assessing corporation members on nonresident policyholder. - If a court of the domiciliary state of an insolvent mutual corporation having jurisdiction thereof proceeds according to the applicable statutes to determine the necessity for and the amount of an assessment against its members, such proceedings are conclusive as to the necessity for and the amount of the assessment, when asserted against a nonresident policyholder who by the express terms of his policy became a member of the corporation, although he was not made a party to said proceedings. An assessment levied by court order upon members of such a corporation, in conformity with the statutes of the state of its organization, against a nonresident member who is not a party to the proceedings, involves no want of due process and is entitled to full faith and credit so far as the necessity and amount of the assessment are concerned. Gaston v. Keehn, 69 Ga. App. 500 , 26 S.E.2d 107 (1943).

Validity of a judgment when collaterally attacked must be tried by an inspection of the judgment roll alone, and no other or further evidence on the subject is admissible, not even evidence that no notice had been given. Creaden v. Krogh, 75 Ga. App. 675 , 44 S.E.2d 136 (1947).

Validity of foreign judgment by confession of attorney in court. - Full faith and credit is given by Georgia courts to valid judgments from other states, where such judgments do not contravene Georgia laws. A valid judgment by confession of an attorney in a court is not such a judgment as would contravene Code 1933, Ch. 110-6. Cocke v. Truslow, 91 Ga. App. 645 , 86 S.E.2d 686 (1955).

Recitation in final order that service was perfected imports absolute verity until properly controverted in the Georgia court by pleadings raising the issue that such service was not legal service and that the judgment rendered on such service would not be entitled to credit according to the law or usage of Florida. Peeples v. Peeples, 103 Ga. App. 462 , 119 S.E.2d 710 (1961).

Effect of foreign decree on one not party to original proceeding where evidence shows it to be nullity. - If the evidence of one relying upon a foreign decree conclusively shows that such decree is a nullity, the courts of this state are not required to give it full faith and credit and a person not a party to such divorce proceeding whose rights are materially and adversely affected by it may collaterally attack its validity in the courts of this state. Cole v. Cole, 221 Ga. 171 , 143 S.E.2d 637 (1965).

Proper foreign judgment conclusive on its merits in forum. - A litigant in the courts of this state relying on the judgment of a sister state in support of or in defense to an action is in general entitled to have such a judgment accorded the same full faith and credit, and no more, as it would receive in the state where rendered, and such a judgment by a court of competent jurisdiction of another state is to this extent conclusive on its merits in the courts of this state. Kelly v. Kelly, 115 Ga. App. 700 , 155 S.E.2d 732 (1967).

Collateral attack of judgment of foreign court having jurisdiction on ground of fraud. - A judgment of a court of a foreign state having jurisdiction of the subject matter and the parties cannot be collaterally attacked in the courts of this state on the ground of fraud. Johnson v. Johnson, 115 Ga. App. 749 , 156 S.E.2d 186 (1967).

Valid judgment cannot be attacked collaterally until set aside or reversed. Costello v. Costello, 230 Ga. 40 , 195 S.E.2d 408 (1973).

Proper foreign judgment offered as evidence in forum court unimpeachable for fraud. - A judgment rendered by a court having jurisdiction of the subject matter, and apparently legal on its face, when offered as evidence in a cause pending in this state, cannot be collaterally impeached for fraud. Logan v. Nunnelly, 128 Ga. App. 43 , 195 S.E.2d 659 (1973).

Nonfinal foreign judgments not entitled to full faith and credit. - If an action is based upon a foreign judgment which is not final in the state where rendered, such judgment is not entitled to recognition under the full faith and credit doctrine. Ryle v. Ryle, 130 Ga. App. 680 , 204 S.E.2d 339 (1974).

Only final judgments accorded full faith and credit. - A judgment of a state court, in order to be given full faith and credit in another jurisdiction, must be a final judgment adjudicating the litigation in a conclusive manner. Fidelity Std. Life Ins. Co. v. First Nat'l Bank & Trust Co., 382 F. Supp. 956 (S.D. Ga. 1974), aff'd, 510 F.2d 272 (5th Cir.), cert. denied, 423 U.S. 864, 96 S. Ct. 125 , 46 L. Ed. 2 d 94 (1975).

Recognition of foreign judgments subject to appeal. - The fact that a foreign judgment is subject to an appeal does not render it interlocutory within the meaning of the rule denying full faith and credit to interlocutory judgments; the full faith and credit clause of the United States Constitution applies as soon as a judgment is enforceable, and not merely after the time to appeal has elapsed. Fidelity Std. Life Ins. Co. v. First Nat'l Bank & Trust Co., 382 F. Supp. 956 (S.D. Ga. 1974), aff'd, 510 F.2d 272 (5th Cir.), cert. denied, 423 U.S. 864, 96 S. Ct. 125 , 46 L. Ed. 2 d 94 (1975).

Judgment from which appeal has been taken without supersedeas is final judgment entitled to be accorded full faith and credit, even though the appeal is still pending in the court of the original jurisdiction. Fidelity Std. Life Ins. Co. v. First Nat'l Bank & Trust Co., 382 F. Supp. 956 (S.D. Ga. 1974), aff'd, 510 F.2d 272 (5th Cir.), cert. denied, 423 U.S. 864, 96 S. Ct. 125 , 46 L. Ed. 2 d 94 (1975).

Effect of collateral attack for fraud on recognition of foreign judgment. - Full faith and credit does not have to be accorded a judgment where the collateral attack is based on its procurement through fraud. Fidelity Std. Life Ins. Co. v. First Nat'l Bank & Trust Co., 382 F. Supp. 956 (S.D. Ga. 1974), aff'd, 510 F.2d 272 (5th Cir.), cert. denied, 423 U.S. 864, 96 S. Ct. 125 , 46 L. Ed. 2 d 94 (1975).

Impeachment of a foreign judgment is limited to existence of fraud that is extrinsic in its nature, that is, fraud preventing one from having a real contest of the action based on conduct or activities outside of the court proceedings themselves. Fraudulent acts that pertain to an issue involved in the original action which was litigated or could have been litigated therein may not be relitigated in another state's courts. Fidelity Std. Life Ins. Co. v. First Nat'l Bank & Trust Co., 382 F. Supp. 956 (S.D. Ga. 1974), aff'd, 510 F.2d 272 (5th Cir.), cert. denied, 423 U.S. 864, 96 S. Ct. 125 , 46 L. Ed. 2 d 94 (1975).

Foreign judgment entitled to full faith and credit where issues fully and fairly litigated in original court. - A judgment is entitled to full faith and credit, even as to questions of jurisdiction, when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment. Fidelity Std. Life Ins. Co. v. First Nat'l Bank & Trust Co., 382 F. Supp. 956 (S.D. Ga. 1974), aff'd, 510 F.2d 272 (5th Cir.), cert. denied, 423 U.S. 864, 96 S. Ct. 125 , 46 L. Ed. 2 d 94 (1975); Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816 , 219 S.E.2d 39 (1975).

When party appears and defends, judgment of court, regular upon its face, may not be attacked in the courts of this state. Green Acres Disct., Inc. v. Freid & Appell, Inc., 135 Ga. App. 816 , 219 S.E.2d 39 (1975).

Effect of conflict of laws on according full faith and credit to foreign judgment. - Even if the statutory law of this state is different from that of the sister state, and even if this would prevent recovery (conceding arguendo that there is such a difference), the forum state (Georgia) must give full faith and credit to that judgment rendered by the sister state. Colodny v. Krause, 136 Ga. App. 379 , 221 S.E.2d 239 (1975).

Judgment in corporate liquidation proceedings. - Because the Delaware Chancery Court, pursuant to applicable statute, had power to wind up the affairs of a corporation that is a creature of the laws of that state, and, as part of that winding up, state court disposed of property of such company although majority stockholder was not named as party in the liquidation proceeding but was merely notified, the United States District Court properly gave full faith and credit to the state court proceeding by granting summary judgment in favor of the state court's holding, thus, effectively causing such proceeding to be enforceable against the majority stockholder. CMS Indus., Inc. v. L.P.S. Int'l, Ltd., 643 F.2d 289 (5th Cir. 1981).

Judgment rendered by court of another state is conclusive on merits in courts of this state when made the basis of an action and the merits cannot be reinvestigated. Flagship Bldrs., Inc. v. Sentinel Star Co., 143 Ga. App. 624 , 239 S.E.2d 235 (1977).

Foreign judgment conclusive on merits only if rendering court had jurisdiction. - A judgment in one state is conclusive upon the merits in every other state, but only if the court of the first state had power to pass on the merits - had jurisdiction, that is, to render the judgment. Benefield v. Harris, 143 Ga. App. 709 , 240 S.E.2d 119 (1977).

Enforcement of foreign judgments subject to collateral attack. - A judgment of a foreign court will be enforced by the courts of Georgia. That judgment, however, may be collaterally attacked where the foreign court lacked jurisdiction of the person or subject matter. Collins v. Peacock, 147 Ga. App. 424 , 249 S.E.2d 142 (1978).

Proper foreign judgment not subject to collateral attack. - A judgment rendered by a court of competent jurisdiction of a sister state, properly authenticated, is conclusive on the merits in the courts of this state when made the basis of action and the merits cannot be reinvestigated, i.e., such a judgment is not subject to collateral attack. Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70 , 270 S.E.2d 293 (1980).

Georgia is not required by the full faith and credit clause to recognize nonfinal decrees. Blue v. Blue, 243 Ga. 22 , 252 S.E.2d 452 (1979).

Only final foreign judgments entitled to full faith and credit. - To entitle the judgment of the court of a sister state to full faith and credit and to endow it with conclusive effect, the judgment must be final. Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70 , 270 S.E.2d 293 (1980).

Law of state of rendition determines whether judgment is final and, if not, what issues remain subject to further determination. Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70 , 270 S.E.2d 293 (1980).

Nature of final judgments. - Final judgments are such as at once put an end to the action, by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70 , 270 S.E.2d 293 (1980).

Allowing actions based on unsatisfied final foreign judgments. - Under the full faith and credit clause, Georgia must recognize the final and unmodifiable judgments of sister states, and permit actions for amounts due and unpaid thereunder up until the time of action. Williamson v. Williamson, 247 Ga. 260 , 275 S.E.2d 42 , cert. denied, 454 U.S. 1097, 102 S. Ct. 669 , 70 L. Ed. 2 d 638 (1981).

Modification of foreign decree modifiable by rendering state. - Modification of a sister state decree does not offend the full faith and credit clause so long as the decree is modifiable by the rendering state, because the forum state has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the state where it was rendered. Blue v. Blue, 243 Ga. 22 , 252 S.E.2d 452 (1979).

Foreign judgment void as against public policy of forum entitled to full faith and credit. - That the North Carolina consent judgment contains a clause making it void as against the public policy of this state does not change the rule that local policy considerations must give way to this constitutional provision. Cannon v. Cannon, 244 Ga. 299 , 260 S.E.2d 19 (1979).

Foreign order void as violating Georgia public policy. - Michigan order, by facially prohibiting consultant from testifying as to matters outside the scope of any privilege, violated Georgia public policy; therefore, the full faith and credit clause did not require the federal district court in Georgia to give full effect to the Michigan court order. Williams v. GMC, 147 F.R.D. 270 (S.D. Ga. 1993).

Interpretation of foreign decree by forum enforcing it. - While a foreign decree may not be altered or modified by the courts of this state, it may be interpreted and effect given to its legal intendment by a court of this state in which an action is brought to enforce such decree. Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70 , 270 S.E.2d 293 (1980).

Domestication of foreign judgment separate issue from enforcement of judgment. - Domestication in this state of a foreign judgment is a separate issue from the extent to which enforcement of that domesticable judgment will be authorized. Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70 , 270 S.E.2d 293 (1980).

Foreign judgments must be domesticated. - Because a foreign judgment cannot be enforced until it is domesticated, a Georgia judgment had priority over an earlier obtained, but later domesticated, foreign judgment against the same debtor. NationsBank v. Gibbons, 226 Ga. App. 610 , 487 S.E.2d 417 (1997).

Payment is complete defense to enforcement of foreign judgment entitled to full faith and credit and domestication in this state, and the defendant may plead partial satisfaction or any other affirmative defense to the enforcement sought in an action on the domesticable judgment. Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70 , 270 S.E.2d 293 (1980).

Workers' compensation award decision. - The full faith and credit clause does not require that the decision in another state that a person is no longer entitled to benefits is a bar to an award under Georgia law when jurisdiction is invoked under O.C.G.A. § 34-9-242 . Roadway Express, Inc. v. Warren, 163 Ga. App. 759 , 295 S.E.2d 743 (1982), cert. dismissed as improvidently granted, 464 U.S. 988, 104 S. Ct. 476 , 78 L. Ed. 2 d 675 (1983).

Discharge or payment of judgment is defense to execution of a foreign judgment. Armstrong v. Strand, 167 Ga. App. 723 , 307 S.E.2d 528 (1983).

4. Divorce and Alimony

Foreign divorce decree unentitled to recognition absent personal service on wife. - A Nevada decree, rendered without personal service of process on a spouse and therefore without personal jurisdiction over the spouse, was not entitled to enforcement in this state by virtue of the full faith and credit clause of the federal Constitution. Cochran v. Cochran, 173 Ga. 856 , 162 S.E. 99 (1931).

Foreign alimony decree enforceable as to unpaid payments. - A decree for alimony from a sister state, providing for future monthly payments, is such a decree as is enforceable in this state under the full faith and credit clause of the Constitution of the United States as to such payments as have become due and remain unpaid at the time of the rendition of the judgment in this state, although the foreign court retains jurisdiction for the purpose of modifying the judgment. Roberts v. Roberts, 174 Ga. 645 , 163 S.E. 735 (1932); Lawrence v. Lawrence, 196 Ga. 204 , 26 S.E.2d 283 (1943); McLendon v. McLendon, 66 Ga. App. 156 , 17 S.E.2d 252 (1941), later appeal, 70 Ga. App. 664 , 29 S.E.2d 97 (1944); Johnson v. Johnson, 115 Ga. App. 749 , 156 S.E.2d 186 (1967).

On facts, foreign divorce decree collaterally attackable for fraud. - A decree of divorce rendered in the State of Alabama on a bill of complaint by the husband alleging himself to be a bona fide resident of that state and the respondent to be a nonresident of the state, which was based upon appearance and pleading alone by the respondent as waiver of service and submission to the jurisdiction, may be collaterally attacked for fraud in its procurement. Durden v. Durden, 184 Ga. 421 , 191 S.E. 455 (1937).

Foreign decree obtained on service by publication not entitled to full faith and credit. - Where a decree of divorce is obtained in another state on service by publication and there is no appearance or response by the defendant, such decree is not binding on the courts of this state under the full faith and credit clause of the United States Constitution. Barnett v. Barnett, 191 Ga. 501 , 13 S.E.2d 19 (1941).

On facts, foreign decree obtained on service by publication collaterally attackable for want of jurisdiction. - Because only service upon the wife in the husband's suit for divorce in foreign state was by publication, and the wife made no appearance and contested none of the allegations of that suit, the wife had a right to collaterally attack the foreign decree upon the grounds that the court was without jurisdiction because the husband had not been a bona fide resident of the foreign state for a period of one year as required by the laws of that state to give the court jurisdiction and that the husband's representation to the court that the husband had been such a bona fide resident was false and fraudulent. Marchman v. Marchman, 198 Ga. 739 , 32 S.E.2d 790 (1945).

Foreign decree obtained without personal service on nonresident subject to collateral attack. - The full faith and credit clause of the Constitution of the United States has no application to a decree of divorce where the defendant in the divorce action was a nonresident, made no appearance, and the only service had was by publication; such a divorce decree is subject to a collateral attack showing that the court rendering the same was without jurisdiction or that the decree was procured by the perpetration of a fraud upon the court. Marchman v. Marchman, 198 Ga. 739 , 32 S.E.2d 790 (1945).

Procedure for enforcement of foreign alimony decree. - An order and decree for alimony from another state, providing for future weekly payments, is such a decree as is enforceable in Georgia under the full faith and credit clause of the Constitution of the United States as to such payments as have become due and remain unpaid, when an action is brought in a court of competent jurisdiction in Georgia on a judgment entered in another state for the total of the unpaid payments which have accrued to the date of the judgment rendered in such other state. Creaden v. Krogh, 75 Ga. App. 675 , 44 S.E.2d 136 (1947).

Jurisdiction of foreign court rendering decree prima facie presumed valid. - Because the record of the proceedings and decree in the Nevada court, which the defendant offered in evidence, shows on its face that the court had jurisdiction of the plaintiff and the defendant had his residence in Nevada, under the full faith and credit clause of the federal Constitution, the trial court was under a duty to accord prima facie validity to the Nevada decree; and, upon the admission of the judgment and record in that case, the burden was upon the plaintiff, if the plaintiff would escape the operation of the decree, to show that it was not binding upon the plaintiff, and such jurisdiction of the Nevada court over the cause of action and the parties is to be presumed until disproved by evidence or by the record itself. Patterson v. Patterson, 208 Ga. 7 , 64 S.E.2d 441 (1951).

Presumption rebuttable by evidence showing domicile outside foreign decree forum. - The presumption of validity of a foreign divorce decree is rebuttable by evidence of the attacking party showing a lack of domicile of the plaintiff in the foreign divorce forum; and, if the evidence shows that the plaintiff was not a bona fide resident of the foreign state at the time the divorce action was instituted, the court may decline to give full faith and credit to the decree, notwithstanding the finding of the foreign decree that he was such a resident. Patterson v. Patterson, 208 Ga. 7 , 64 S.E.2d 441 (1951).

Foreign divorce decree showing jurisdiction entitled to recognition in in-state divorce action. - An amendment to the husband's answer, in an in-state divorce action by the wife, setting up a final divorce decree from a court of foreign state, which decree showed on its face that such court had jurisdiction over the parties and the cause of action for a divorce, is prima facie entitled to respect by the courts of this state under the full faith and credit clause of the federal Constitution. Cherry v. Cherry, 208 Ga. 213 , 65 S.E.2d 805 (1951).

Full faith and credit clause places Georgia courts under duty to accord prima facia validity to Texas divorce decree. Meeks v. Meeks, 209 Ga. 588 , 74 S.E.2d 861 (1953).

Effect of foreign divorce decree on temporary alimony order. - Full faith and credit under the Constitution of the United States does not demand that support and maintenance due the wife under a temporary alimony order of the courts of Georgia cease when a valid divorce is granted between the parties in another state. Meeks v. Meeks, 209 Ga. 588 , 74 S.E.2d 861 (1953).

Effect of pending divorce action on divorce decree procured in sister state. - The mere fact that spouse had a divorce action pending in a court in Georgia at the time he procured a Texas divorce is not sufficient to rebut the prima facia validity of the Texas decree, since whether or not there was an action pending in Georgia for the same cause was not a jurisdictional fact in the cause in Texas. Meeks v. Meeks, 209 Ga. 588 , 74 S.E.2d 861 (1953).

Mere production of copy of foreign divorce decree without more insufficient to invalidate it. - Although it is true that a Texas divorce decree may be collaterally attacked in the courts of Georgia on the grounds of lack of jurisdiction in the Texas court or fraud in the procurement of the decree, and that the Georgia courts may determine those questions for themselves, where the only evidence produced in proceeding by wife to have husband adjudged in contempt for failure to pay temporary alimony was a copy of the husband's Texas divorce decree, and no question regarding the jurisdiction of the Texas court or of fraud in the procurement of the decree is presented, the Constitution of the United States demands that the Texas decree be given full faith and credit. Meeks v. Meeks, 209 Ga. 588 , 74 S.E.2d 861 (1953).

Foreign decree obtained on personal service or by appearance of both parties valid. - If there has been personal service or if the parties both actually appear and participate in the trial by pleading and personal appearance, this court holds that a divorce decree rendered by the courts of another state, under these circumstances, is not subject to collateral attack. Smith v. Smith, 211 Ga. 615 , 87 S.E.2d 320 (1955).

Full faith and credit not accorded foreign decree subject to collateral attack. - If the only service obtained in a divorce action is by publication, when the defendant is a nonresident and does not appear and defend the action and has no actual notice of the pendency of the action, the decree is subject to attack on the ground that the court rendering the decree had no jurisdiction of the parties, or that the decree was obtained by the perpetration of a fraud upon the court rendering the decree, and the full faith and credit clause of the Constitution of the United States and the Act of Congress enacted pursuant thereto, 28 U.S.C. § 1738, have no application under these circumstances. Smith v. Smith, 211 Ga. 615 , 87 S.E.2d 320 (1955).

Decree unattackable in rendering state is unattackable in any state. - If a divorce cannot be attacked for lack of jurisdiction by parties actually before the court or by strangers in the rendering state, the full faith and credit clause forbids an attack by them anywhere in the United States. A state by virtue of U.S. Const., art. IV, sec. I must give full faith and credit to a foreign divorce decree by barring either party to that divorce who has been personally served or who has entered a personal appearance from collaterally attacking the decree, where the decree is not susceptible to such collateral attack in the courts of the state which rendered it. Woody v. Woody, 91 Ga. App. 806 , 87 S.E.2d 222 (1955).

Elements essential to foreign divorce decree for full faith and credit. - The decisions of this court up to this time have uniformly held that the full faith and credit clause of the Constitution of the United States and the Act of Congress enacted in pursuance thereof, 28 U.S.C. § 1738, have no application to a decree of divorce if the defendant in the divorce action was a nonresident, made no appearance, and the only service had was by publication, and that such a divorce decree is subject to a collateral attack showing that the court rendering the same was without jurisdiction or that the petitioner therein procured the decree by the perpetration of a fraud upon the court rendering the same. But if there has been personal service or the defendant appears and defends, a decree of divorce rendered by a court of another state and regular upon its face is not subject to attack in the courts of this state. Wade v. Wade, 213 Ga. 886 , 102 S.E.2d 557 (1958).

Foreign alimony decree subject to revocation or modification unenforceable. - A decree for alimony of a sister state, providing for future monthly payments, which by its own terms is subject to be revoked or modified as to the amount to be paid thereunder by the court rendering such decree, is not enforceable in this state under U.S. Const., art. IV, sec. I or upon principles of comity. Ferster v. Ferster, 219 Ga. 543 , 134 S.E.2d 600 (1964).

Effect of foreign divorce on support and maintenance order. - Full faith and credit under the Constitution of the United States does not demand that support and maintenance due the spouse under an order of the courts of Georgia cease when a valid divorce is granted between the parties in another state. Spadea v. Spadea, 225 Ga. 80 , 165 S.E.2d 836 (1969).

Foreign divorce properly proved entitled to full faith and credit. - U.S. Const., art. IV, sec. I requires the courts of this state to give effect to a divorce granted in a sister state when the same is properly proved in a proceeding in which it may be relevant in this state. Spadea v. Spadea, 225 Ga. 80 , 165 S.E.2d 836 (1969).

Foreign divorce decree properly rendered not subject to collateral attack. - Under U.S. Const., art. IV, sec. I, a divorce decree of a sister state rendered after personal service on the defendant and after the defendant has appeared in person or by attorney and defended the same on the merits, which decree is regular upon its face, is not subject to collateral attack in the courts of this state but must be given full force and effect as if rendered by a court of this state. Joyner v. Joyner, 227 Ga. 545 , 181 S.E.2d 842 (1971).

Foreign divorce decree attacked for fraud as bar to alimony action. - The rule prevailing in this state is that a decree of divorce, obtained by a husband in another state, wherein service is perfected on the wife, a resident of this state, by publication, and in which the plaintiff in such foreign judgment is not in fact a bona fide resident of the state in which the judgment is rendered, can be attacked collaterally for fraud when offered in the courts of this state, as a bar to the wife's action for alimony. Logan v. Nunnelly, 128 Ga. App. 43 , 195 S.E.2d 659 (1973).

Ex parte divorce decree valid in other states if one spouse domiciled in forum. - An ex parte judgment that only grants a divorce is entitled to full faith and credit in other states if one of the spouses was domiciled in the forum that granted the divorce judgment. Whitaker v. Whitaker, 237 Ga. 895 , 230 S.E.2d 486 (1976).

Foreign divorce decree unimpeachable in rendering state is unimpeachable in any state. - If a decree of divorce cannot be attacked on jurisdictional grounds by parties who were actually before the court, or by their privies, or by strangers, in the courts of the state in which the decree was rendered, the full faith and credit clause precludes their attacking it in the courts of a sister state. Kingdon v. Foster, 238 Ga. 37 , 230 S.E.2d 855 (1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2179 , 53 L. Ed. 2 d 226 (1977).

U.S. Const., art. IV, sec. I requires courts of this state to give effect to divorce decree of sister state when properly proved. Benefield v. Harris, 143 Ga. App. 709 , 240 S.E.2d 119 (1977).

Foreign divorce decree obtained by domiciliary of rendering state by constructive service valid. - A divorce decree granted by a state to one of its domiciliaries is entitled to full faith and credit in another state even though the other spouse is given notice only through constructive service. Benefield v. Harris, 143 Ga. App. 709 , 240 S.E.2d 119 (1977).

Foreign divorce decree invalid as to nonresident on issue of alimony absent personal service. - Even though a divorce decree is entitled to full faith and credit insofar as it affects marital status, it is ineffective as to a nonresident on the issue of alimony (an in personam judgment) unless there was personal service. Benefield v. Harris, 143 Ga. App. 709 , 240 S.E.2d 119 (1977).

Actions on unsatisfied and unmodifiable foreign alimony decrees permitted. - If a decree for installment payments of alimony or child support is given in a sister state, and the decree constitutes a final and unmodifiable judgment as to amounts due and unpaid under it, the full faith and credit clause requires that Georgia permit actions for the amount due and unpaid up until the time the action is brought. Blue v. Blue, 243 Ga. 22 , 252 S.E.2d 452 (1979).

Foreign modified alimony order rendered without personal service unenforceable. - As a personal judgment for alimony cannot be rendered against a nonresident defendant upon service by publication, and accordingly, an action for modification of alimony cannot be maintained against a nonresident defendant who has not been personally served or has not waived personal service, nor can Mississippi statute which purports to grant court rendering divorce continuing jurisdiction to modify alimony award confer personal jurisdiction over a nonresident defendant who has not consented or subjected herself to the jurisdiction of the Mississippi courts, Mississippi modification order against resident of Georgia who was served by publication and who did not waive personal service was not entitled to full faith and credit in the courts of this state. Veazey v. Veazey, 246 Ga. 376 , 271 S.E.2d 449 (1980).

Vested right to due alimony installments entitled to full faith and credit. - Generally speaking, if a decree is rendered for alimony and is made payable in future installments, the right to such installments becomes absolute and vested upon becoming due and is protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments. Alimony decreed to a spouse in a divorce is as much a debt of record, until the decree has been recalled, as any other judgment for money is. Williamson v. Williamson, 247 Ga. 260 , 275 S.E.2d 42 , cert. denied, 454 U.S. 1097, 102 S. Ct. 669 , 70 L. Ed. 2 d 638 (1981).

Modifiable alimony decree unenforceable. - If the law of the state in which a judgment for future alimony is rendered makes the right to demand and receive such alimony discretionary with the court that rendered the decree, to the extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even though no application to annul or modify the decree in respect of alimony has been made prior to installments falling due, the decree is not protected by the full faith and credit clause. Williamson v. Williamson, 247 Ga. 260 , 275 S.E.2d 42 , cert. denied, 454 U.S. 1097, 102 S. Ct. 669 , 70 L. Ed. 2 d 638 (1981).

Decrees subject to further order of court. - Georgia law distinguishes between an action to enforce an award for support rendered in connection with a divorce decree, although such award is subject to modification, and an action to enforce such award if it is not rendered in connection with a divorce decree and is made subject to "further order of the court," and will not enforce the latter judgment of a sister state. Jagiella v. Jagiella, 647 F.2d 561 (5th Cir. 1981).

Foreign modification of Georgia child support award requires in personam jurisdiction. - A Kentucky court would be required to have in personam jurisdiction over defendant in order to modify a Georgia award of child support. Earley v. Earley, 165 Ga. App. 483 , 300 S.E.2d 814 (1983).

When foreign divorce decree given effect. - U.S. Const., art. IV, sec. I requires the courts of this state to give effect to a divorce decree of a sister state when properly proved. Tallman v. Tallman, 161 Ga. App. 447 , 287 S.E.2d 703 (1982).

Nature of action to enforce alimony decree. - The action to enforce a decree for alimony of a sister state does not make such action an alimony case; rather it is an action on a debt of record. Tallman v. Tallman, 161 Ga. App. 447 , 287 S.E.2d 703 (1982).

Judgments subject to retroactive modification lack requisite finality. - Final divorce decrees of other states are recognized under the full faith and credit clause. Even those which may be prospectively modified are properly domesticated and enforced in Georgia under principles of comity. Nevertheless, judgments of other states which may be modified retroactively lack the requisite finality to be entitled to full faith and credit. Apple v. Apple, 186 Ga. App. 325 , 367 S.E.2d 109 (1988).

Contempt action held unenforceable. - Although it was not error to domesticate 1975 and 1978 New York divorce and alimony decrees, there was no basis to enforce an action for contempt based on unpaid sums allegedly owed under those decrees, because a reduction of the sums owed to judgment, they were not enforceable in New York. Apple v. Apple, 186 Ga. App. 325 , 367 S.E.2d 109 (1988).

5. Custody and Support of Children

Foreign decree awarding custody void for lack of jurisdiction. - A father's leaving his wife and minor child in Georgia to obtain employment for himself in Michigan, and failing to provide for them, except sending them about $12.00 in two years, held to authorize a finding that the father had voluntarily relinquished parental authority over the child to the mother, thereby rendering the domicile of the child that of its mother, so that a Michigan divorce decree awarding custody of the child to the father was void for lack of jurisdiction, even though the mother filed an answer in the divorce proceeding, asking to be awarded the child; and the court was authorized to determine the habeas corpus case filed by father to regain custody without regard to the foreign judgment, and solely in view of the welfare of the child as an original proposition. Elliott v. Elliott, 181 Ga. 545 , 182 S.E. 845 (1935).

Custody decree void for lack of jurisdiction of child. - On habeas corpus by a father to recover the custody of a minor child living with the mother in Georgia, predicated upon a decree of a Michigan court dissolving the marriage and awarding the child to the father, the full faith and credit clause of the federal Constitution did not preclude the Georgia court from declaring the Michigan decree void for lack of jurisdiction of the child. Elliott v. Elliott, 181 Ga. 545 , 182 S.E. 845 (1935).

Foreign custody decree subject to modification in other state for welfare of child. - A decree of divorce awarding the custody of the children of the parties, rendered by the court of another state having jurisdiction of the subject matter and of the parties, shall be given full effect in this state; but such decree cannot anticipate changes which may occur in the condition of the parents, or in their character and fitness for the care of their children. Accordingly, if, in a proceeding in this state involving the custody of a child, a change is shown in the circumstances of the parties materially affecting the welfare of the child since the foreign decree, the court in the exercise of a sound discretion may protect such welfare accordingly, the same as if there has been such a change since a decree rendered in this state. If the mother and child now reside in this state, and if the father filed his petition in a superior court of this state for injunction against the mother, the court would be authorized, if there was competent evidence of a change in the condition of the parties since the decree materially affecting the child's welfare, to make a new award of custody. Kniepkamp v. Richards, 192 Ga. 509 , 16 S.E.2d 24 (1941).

Custody decree rendered without jurisdiction of mother collaterally attackable. - Although a decree in another state awarding the custody of a child to the father is conclusive as between the parties to the decree and as to the right and fitness for such custody at that time, such a judgment rendered without jurisdiction of the mother may be collaterally attacked without offending the full faith and credit clause of the Constitution of the United States. Carter v. Carter, 201 Ga. 850 , 41 S.E.2d 532 (1947).

Divorce decree awarding custody and properly rendered entitled to full faith and credit. - If the defendant appears and defends, a decree of divorce rendered by a court of another state and regular upon its face is not subject to attack in the courts of this state, and such a decree awarding custody of the children of the parties, rendered by the court of another state having jurisdiction of the subject matter and of the parties, shall be given full effect in this state. Beggs v. Beggs, 208 Ga. 415 , 67 S.E.2d 135 (1951).

Valid jurisdiction over parents confers same over minors' custody and support. - A divorce suit embraces within its scope the care and disposition of minor children, and jurisdiction over the parents confers eo ipso jurisdiction over the minors' custody and support; and if in a foreign court jurisdiction is not claimed by virtue of service by publication on a nonresident, but rests upon an answer and cross-bill filed therein by the nonresident, wherein the custody of the children and alimony for their support is put in issue, such court acquires complete jurisdiction of the marriage status and the custody of the children. Beggs v. Beggs, 208 Ga. 415 , 67 S.E.2d 135 (1951).

Foreign custody decree properly obtained entitled to full faith and credit. - A judgment of a court of competent jurisdiction in another state, awarding the custody of a child to a named person, which judgment is regular on its face and unimpeached for fraud, is conclusive of the status at the time of its rendition, and will be accorded full faith and credit if introduced in proceedings in Georgia for the custody of the child. Peeples v. Newman, 209 Ga. 53 , 70 S.E.2d 749 (1952).

Any custody decree subject to modification if welfare of child at issue. - A judgment awarding the custody of a child, whether rendered by the courts of a sister state or by the courts of Georgia, may be modified upon application if it is shown that there is such a change of conditions since the rendition of the decree as will affect the welfare of the child. Peeples v. Newman, 209 Ga. 53 , 70 S.E.2d 749 (1952).

Foreign custody decree unimpeached for fraud entitled to full faith and credit. - The judgment of a court of competent jurisdiction of a sister state, awarding the custody of a minor child, which is regular on its face and unimpeached for fraud, is entitled to full faith and credit in proceedings for the custody of the child in this state. Belden v. Strickland, 218 Ga. 105 , 126 S.E.2d 670 (1962).

Original foreign custody award not res judicata in proceeding for custody where child's welfare at issue. - An original custody award in a foreign court, under U.S. Const., art. IV, sec. I, is not res judicata as to a subsequent claim of custody based on changes of conditions affecting the child's welfare. Oliver v. Oliver, 225 Ga. 61 , 165 S.E.2d 863 (1969).

Duty of courts to modify foreign custody decree if change in conditions adversely affect child. - Although a decree of a court of a sister state granting custody of a child temporarily for a period of one year must be given effect by the courts of this state under the full faith and credit clause of the United States Constitution, it is nevertheless the duty of the trial courts of this state, if the issues are presented to it, to determine whether there has been a change in conditions subsequent to the entry of the previous decree which adversely affects the welfare of the child, and to determine, based on the present conditions as shown by the evidence, whether the best interests of the child dictate a change in custody. Glover v. Sink, 230 Ga. 81 , 195 S.E.2d 443 (1973).

Allowance of evidence of effect of foreign custody decree in rendering state. - In order to determine the effect of a Maryland decree in regard to child support and custody sought to be enforced by the husband in a divorce action, evidence of the effect of such decree in Maryland should be allowed and the refusal to permit the wife to introduce such evidence is error. Jackson v. Jackson, 231 Ga. 751 , 204 S.E.2d 297 (1974).

Foreign custody judgment not incident to divorce decree and without jurisdiction invalid. - If a foreign court changes or fixes custody of a child, not incident to a divorce decree, without personal jurisdiction over the parties to the action, the judgment so issued need not be recognized under the full faith and credit clause of the Constitution. Schowe v. Amster, 236 Ga. 720 , 225 S.E.2d 289 (1976).

Child custody judgment may be entitled to recognition under former Code 1933, Ch. 5, T. 74 (see O.C.G.A. Ch. 9, T. 19) even though such judgment would not be entitled to full faith and credit. Youmans v. Youmans, 247 Ga. 529 , 276 S.E.2d 837 (1981).

Prosecution for abandonment. - Because a North Carolina divorce decree making the divorced wife responsible for the total maintenance of the children would not have barred a North Carolina prosecution of the father for abandonment, the full faith and credit clause did not have the effect of barring a criminal prosecution for abandonment in Georgia. Chapman v. State, 177 Ga. App. 580 , 340 S.E.2d 237 (1986).

Supreme Court without jurisdiction where full faith issue not raised in state court. - Because petitioner failed, in the state proceedings, to raise question of whether the United States Constitution demanded that Georgia give full faith and credit to a Florida custody decree and, the Georgia Supreme Court failed to rule on a federal issue, the United States Supreme Court was without jurisdiction on the petition for certiorari. Webb v. Webb, 451 U.S. 493, 101 S. Ct. 1889 , 68 L. Ed. 2 d 392 (1981).

Citizens' Privileges and Immunities

Former Code 1933, § 57-117 (see O.C.G.A. § 7-4-18 ) was not violative of United States Constitution on ground that it was in deprivation of defendant's rights. Atterberry v. State, 212 Ga. 778 , 95 S.E.2d 787 (1956).

Prohibition of application of doctrine of forum non conveniens to nonresidents in FELA actions. - The privileges and immunities clause of the United States Constitution prohibits Georgia courts from applying the doctrine of forum non conveniens to citizens of other states who are nonresidents of Georgia in Federal Employers' Liability Act cases and declining to exercise jurisdiction of such actions brought by them. Brown v. Seaboard Coast Line R.R., 229 Ga. 481 , 192 S.E.2d 382 , answer conformed to, 127 Ga. App. 342 , 193 S.E.2d 192 (1972).

Validity of statute denying medical care to nonresidents. - Absent some relationship to the availability of post-procedure medical care for an aborted patient, the constitutionality of a residence requirement could not be upheld. The privileges and immunities clause protects persons who enter Georgia seeking the medical services that are available there. Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739 , 35 L. Ed. 2 d 201 (1973).

Cited in Jollie v. Hughes, 184 Ga. 860 , 193 S.E. 769 (1937); Southern Ry. v. Parker, 194 Ga. 94 , 21 S.E.2d 94 (1942); Coates v. Lawrence, 46 F. Supp. 414 (S.D. Ga. 1942); Mainer v. Plunkett, 216 Ga. 820 , 120 S.E.2d 175 (1961); Pahno v. Mathews, 226 Ga. 216 , 173 S.E.2d 704 (1970); Johnstone v. Deyton, 233 Ga. 146 , 210 S.E.2d 692 (1974); High Ol' Times, Inc. v. Busbee, 449 F. Supp. 364 (N.D. Ga. 1978).

Extradition

1. In General

Duty to honor demand of sister state for extradition of fugitive. - The Constitution imposes a duty upon the executive authority of each state of this Union to honor the demand of another state for the extradition of a fugitive from the demanding state. Hart v. Mount, 196 Ga. 452 , 26 S.E.2d 453 (1943).

It is not by virtue of mere comity that extradition warrant is issued, but in obedience to constitutional mandate. Hart v. Mount, 196 Ga. 452 , 26 S.E.2d 453 (1943).

Extradition based on constitutional mandate, not merely comity. - The matter of rendering one from an asylum state to another state by extradition proceedings is not founded merely on comity between the states, but is in response to a requirement under U.S. Const., art. IV, sec. II, cl. 2. House v. Grimes, 214 Ga. 572 , 105 S.E.2d 745 (1958).

Law governing extradition proceedings. - The primary law governing extradition proceedings is found in the Constitution of the United States, and the acts of Congress in pursuance thereof. McFarlin v. Shirley, 209 Ga. 794 , 76 S.E.2d 1 (1953).

Elements necessary to authorize extradition. - If a request for extradition is premised on the constitutional provision, one arrested and held on the governor's warrant issued in response to the request is entitled to habeas corpus relief upon establishing that he is not a fugitive from justice. Jenkins v. Garrison, 265 Ga. 42 , 453 S.E.2d 698 (1995).

In order to authorize an extradition under the Constitution and laws of the United States, the alleged criminal act must have been committed by an individual who was at the time of its commission personally within the state which demands the individual's surrender, and that such person must have fled from the demanding state to the state where the individual is found, either directly or indirectly. Such a person is defined as a fugitive from justice. Jackson v. Pittard, 211 Ga. 427 , 86 S.E.2d 295 (1955).

Convicted felon leaving state before serving full term is fugitive from justice. - Where a person is convicted of felony committed by the person in one state, and that person goes into another state, whether voluntarily or involuntarily, before serving the full term for which that person was sentenced, that person thereby becomes a fugitive from justice. Brown v. Lowry, 185 Ga. 539 , 195 S.E. 759 (1937); King v. Mount, 196 Ga. 461 , 26 S.E.2d 419 (1943); Broyles v. Mount, 197 Ga. 659 , 30 S.E.2d 48 (1944); Taylor v. Foster, 205 Ga. 36 , 52 S.E.2d 314 (1949); House v. Grimes, 214 Ga. 572 , 105 S.E.2d 745 (1958); Frazier v. Grimes, 221 Ga. 375 , 145 S.E.2d 39 (1965); Ingram v. Dodd, 243 Ga. 788 , 256 S.E.2d 778 (1979).

Parole violator subject to extradition. - A person who has been convicted of a felony in another state and released on parole by the authorities of that state with permission to go into this state, upon the violation of the terms of parole by the commission of a felony in this state, becomes a fugitive from justice within the meaning of U.S. Const., art. IV, sec. II, cl. 2 and the Act of Congress enacted pursuant thereto, 18 U.S.C. § 662, and subject to extradition by the state where the person was convicted, although that person has committed no crime in that state subsequent to parole. Beavers v. Lowry, 186 Ga. 557 , 198 S.E. 692 (1938).

A paroled convict who violates the terms of parole may be extradited from one state to another on the ground that the person is a convict whose term has not expired, and therefore is charged with crime under the provision of United States Constitution relating to interstate extradition. Broyles v. Mount, 197 Ga. 659 , 30 S.E.2d 48 (1944); Mathews v. Foster, 209 Ga. 699 , 75 S.E.2d 427 (1953); Soviero v. State, 220 Ga. 119 , 137 S.E.2d 471 (1964); Frazier v. Grimes, 221 Ga. 375 , 145 S.E.2d 39 (1965).

Parole violator committing another felony is fugitive from justice. - If a person who has been convicted of a felony or other crime in another state, and released on parole by the authorities of that state with permission to go into another state, violates the terms of his parole by the commission of another felony, or a federal offense amounting to a felony, that person becomes a fugitive from justice within the meaning of U.S. Const., art. IV, sec. II, cl. 2. Mathews v. Foster, 209 Ga. 699 , 75 S.E.2d 427 (1953).

Convicted felon involuntarily brought into state from convicting jurisdiction to serve sentence fugitive from justice. - Petitioner, brought into Georgia after conviction in the state of Massachusetts for the purpose of serving the sentence imposed by the federal court, and consequently not coming into Georgia from Massachusetts voluntarily, was nevertheless a fugitive from justice. Scheinfain v. Aldredge, 191 Ga. 479 , 12 S.E.2d 868 (1940).

Violator of conditional pardon still charged with crime. - A person who is out on a conditional pardon which has been revoked, is nevertheless still a person who is charged with crime within the meaning of U.S. Const., art. IV, sec. II, cl. 2. Deering v. Mount, 194 Ga. 833 , 22 S.E.2d 828 (1942).

Felon serving only part of sentence subject to later extradition. - Where an individual who had been convicted and sentenced for the offense of embezzlement in the state of Louisiana was taken into custody by federal authorities and convicted and sentenced for a federal offense, was then returned to the authorities of Louisiana, and after serving a part of the sentence imposed upon the individual by the court of that state, was reprieved to the United States authorities to permit the individual to serve a federal sentence and after said sentence was served, was then arrested on a warrant issued by the Governor of Georgia on a requisition from the Governor of Louisiana, in order that the individual might be extradited and required to serve out an incomplete sentence in that state, in the circumstances the individual was a fugitive from the justice of Louisiana within the purview of the Constitution and laws of the United States, and was subject to extradition to that state. King v. Mount, 196 Ga. 461 , 26 S.E.2d 419 (1943).

Extradition not violative of right to fair trial. - One accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that. He should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial, and he may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it. House v. Grimes, 214 Ga. 572 , 105 S.E.2d 745 (1958).

On facts, conditional pardon violator subject to extradition. - Petitioner, who was granted a conditional pardon on 10-year sentence imposed in Florida, provided that the petitioner leave the state of Florida immediately, and thereafter remain outside the state and lead a sober, peaceable, and law-abiding life, and was later arrested and tried in the federal courts and sentenced to serve ten years, was a fugitive from justice subject to extradition to Florida, when that state revoked the conditional pardon and placed a detainer with the federal authorities. House v. Grimes, 214 Ga. 572 , 105 S.E.2d 745 (1958).

2. Procedure

Precedence of extradition warrant over bill of exceptions in habeas corpus. - The filing of a bill of exceptions to the decision of the judge in the hearing of a habeas corpus case, if the petitioner is being detained under an extradition warrant, does not operate as a supersedeas, and, pending the decision on appeal, the petitioner must remain in the condition in which the petitioner is placed by the judgment; in such a case there is no provision in the law of this state for bail. Hames v. Sturdivant, 181 Ga. 472 , 182 S.E. 601 (1935).

Laws of demanding state control as to sufficiency of indictment. - The question as to whether or not the alleged fugitive from the justice of another state is charged with a crime is one of law, and is always open upon the face of the papers to judicial inquiry, but if the indictment which forms the basis of the extradition proceedings substantially charges a crime in conformity to the laws of the demanding state, the prisoner should not be released, however defective such indictment might be either at common law or under the well-known rules of criminal procedure. Scheinfain v. Aldredge, 191 Ga. 479 , 12 S.E.2d 868 (1940).

When requisition papers make a case under the Constitution, the Governor without more should honor demand and issue the warrant for extradition. Hart v. Mount, 196 Ga. 452 , 26 S.E.2d 453 (1943).

Evidence insufficient to show petitioner not person named in extradition proceeding. - In habeas corpus proceedings against sheriff who was holding petitioner in custody under warrant of Governor, evidence that at a hearing held by a secretary of the Governor proof was offered showing that the petitioner was not the person named in the extradition proceeding, afforded no ground for discharging the petitioner from custody; and there being no evidence on the habeas corpus trial showing that the petitioner was not in fact the person described in the extradition proceeding, and there being an identity of names, it was not error to remand the petitioner to the custody of the sheriff. Hart v. Mount, 196 Ga. 452 , 26 S.E.2d 453 (1943).

Authority of state to postpone service of remainder of term pending service of federal sentence. - After convict had served a part of the sentence imposed by the court of Louisiana, the authorities of the state could waive immediate service of the remainder and postpone such service until after service of a federal sentence, and in so doing they did not waive or release jurisdiction of Louisiana to demand the extradition of such convict. King v. Mount, 196 Ga. 461 , 26 S.E.2d 419 (1943).

Burden on petitioner to show insufficiency of executive extradition warrant. - If, in the trial of a habeas corpus case, it appears that the respondent holds the petitioner in custody under an executive warrant based upon an extradition proceeding and the warrant is regular on its face, the burden is cast upon the petitioner to show some valid and sufficient reason why the warrant should not be executed. The presumption is that the Governor has complied with the Constitution and the law, and this presumption continues until the contrary appears. King v. Mount, 196 Ga. 461 , 26 S.E.2d 419 (1943); Ellis v. Grimes, 198 Ga. 51 , 30 S.E.2d 921 (1944); Mathews v. Foster, 209 Ga. 699 , 75 S.E.2d 427 (1953); McFarlin v. Shirley, 209 Ga. 794 , 76 S.E.2d 1 (1953); Baldwin v. Grimes, 216 Ga. 390 , 116 S.E.2d 207 (1960).

Refusal to discharge alleged parole violator not error. - Refusal on the hearing of a writ of habeas corpus to discharge applicant, held under an extradition warrant as a fugitive from justice for allegedly violating parole, was not error. Broyles v. Mount, 197 Ga. 659 , 30 S.E.2d 48 (1944).

Question of law as to substantiality of crime charged against person goes to indictment. - In cases involving extradition, it is a question of law open to judicial inquiry on habeas corpus as to whether the person demanded is substantially charged with a crime against the laws of the demanding state; but this rule applies to the sufficiency of the indictment or affidavit as a pleading, and not to extraneous evidence as to actual guilt. Ellis v. Grimes, 198 Ga. 51 , 30 S.E.2d 921 (1944).

Courts of asylum state cannot, upon writ of habeas corpus, inquire into guilt or innocence of accused. Ellis v. Grimes, 198 Ga. 51 , 30 S.E.2d 921 (1944).

Evidence insufficient to show applicant not in state at time of offense. - Although in a habeas proceeding the applicant, being held under an executive warrant based on an extradition proceeding, could urge, as a ground for release, that as a matter of fact the applicant was not within the state in question at the time of the commission of the alleged offense, the evidence authorized, even if it did not demand, the finding against the applicant upon such issue. Ellis v. Grimes, 198 Ga. 51 , 30 S.E.2d 921 (1944).

Question of law as to sufficiency of indictment or affidavit charging crime. - Whether or not alleged fugitive from the justice of another state is charged with a crime, is a question of law, which is always open upon the face of the papers to judicial inquiry; but as to this question, the law requires only that the crime be substantially charged in an indictment found or in an affidavit made before a magistrate, as a matter of pleading. Ellis v. Grimes, 198 Ga. 51 , 30 S.E.2d 921 (1944).

Closer scrutiny of sufficiency of charge of crime by affidavit rather than indictment. - Although in passing upon the legal question as to whether a crime against the laws of the demanding state is sufficiently charged, there may be need for closer scrutiny if the requisition is based upon an affidavit instead of an indictment, yet if the charge as pleaded is in law sufficient for the purpose of extradition, the same presumptions and incidents will follow, upon grant by the Governor of the extradition, as if the demand had been based upon an indictment. Ellis v. Grimes, 198 Ga. 51 , 30 S.E.2d 921 (1944).

Courts of asylum state cannot, upon writ of habeas corpus, inquire into guilt or innocence of accused. No such jurisdiction is given them by law, and it would be a manifestly unwise provision if authority to investigate such a question was conferred on a tribunal that had no power to compel the attendance of witnesses who resided in another state, and whose testimony would be necessary to throw light on the issue. Mathews v. Foster, 209 Ga. 699 , 75 S.E.2d 427 (1953).

Petitioner illegally restrained if extradition warrant not based on valid requisition. - In habeas corpus proceedings, although the evidence offered by the petitioner could not be held, as a matter of law, to be sufficient to overcome the presumption that the Governor had complied with the Constitution and the laws, because the respondent tendered in evidence, over proper objections of the petitioner, the requisition of the Governor of the state of South Carolina without a copy of an indictment found or an affidavit made before a magistrate pursuant to 18 U.S.C. § 3182 the respondent in effect contradicted the prima facie showing made by the warrant alone and thus showed that the petitioner was being illegally restrained, in that the warrant was not based on a valid requisition, and the trial court erred in remanding the petitioner to the respondent. McFarlin v. Shirley, 209 Ga. 794 , 76 S.E.2d 1 (1953).

Probation violator subject to extradition without proof of commission of additional crime. - A probationer whose probation has been revoked because of a violation of its conditions may be extradited from one state to another on the ground that the probationer is a convict whose sentence has not expired, and who is charged with crime within the meaning of the United States Constitution; there is no constitutional requirement that a fugitive be shown to have committed an additional crime while a fugitive; a showing of the probationer's status as a fugitive is sufficient to support extradition proceedings. Ingram v. Dodd, 243 Ga. 788 , 256 S.E.2d 778 (1979).

Extradition proceedings are of summary nature only. - Once a habeas corpus court has found the extradition papers to be legally sufficient, a further inquiry into a petitioner's statutory and constitutional defenses violates the clear intention that an extradition proceeding be of a summary nature. Defenses that the statute of limitations has run on the offense for which the petitioner is being extradited, that the petitioner has been denied a speedy trial, and all other due process questions are issues to be properly decided by courts in the demanding state, not by courts in any asylum state. Hutson v. Stoner, 244 Ga. 52 , 257 S.E.2d 539 , cert. denied, 444 U.S. 967, 100 S. Ct. 455 , 62 L. Ed. 2 d 379 (1979).

Lack of presence in demanding state at time of commission of alleged crime is no longer a defense that is cognizable in an extradition proceeding. Once the Governor has granted extradition, a court considering release on habeas corpus can do no more than decide (1) whether the extradition documents on their face are in order; (2) whether the petitioner has been charged with a crime in the demanding state; (3) whether the petitioner is the person named in the request for extradition; and (4) whether the petitioner is a fugitive. Hutson v. Stoner, 244 Ga. 52 , 257 S.E.2d 539 , cert. denied, 444 U.S. 967, 100 S. Ct. 455 , 62 L. Ed. 2 d 379 (1979).

General Consideration

Where plaintiff alleges statutory and constitutional predicates, federal court must assume jurisdiction. - Where a plaintiff alleges 28 U.S.C. § 1343(3), in conjunction with 42 U.S.C. § 1983, as the jurisdictional predicate, and alleges federal constitutional predicates, such as fourteenth amendment property rights, first amendment rights to free speech and association, and fifth amendment just compensation or "taking" clause, a federal court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief, as well as to determine issues of fact arising in the controversy. Stone Mt. Game Ranch, Inc. v. Hunt, 570 F. Supp. 238 (N.D. Ga. 1983), aff'd, 746 F.2d 761 (11th Cir. 1984).

Conspiracy claims may be asserted against federal officials. - Conspiracy claims based on alleged violations of U.S. Const., amend. 1 may be asserted against federal officials as well as against those acting under color of state law. McDowell v. Cheney, 718 F. Supp. 1531 (M.D. Ga. 1989), aff'd, 9 F.3d 1559 (11th Cir. 1993).

Statute of limitations. - Where plaintiff's original complaint, based on 42 U.S.C. § 1983 violations, was filed within two years after the injury, and plaintiff asserted a first amendment claim in an amendment, even though the first amendment expression arose out of the plaintiff's prior activities, the plaintiff's claim for violation of such right arose out of defendant's acts which were the basis of the § 1983 claim and related back to the date of the original complaint. Blue Ridge Mt. Fisheries, Inc. v. Department of Natural Resources, 217 Ga. App. 89 , 456 S.E.2d 651 (1995).

Cited in RD-DR Corp. v. Smith, 183 F.2d 562 (5th Cir. 1950); McGill v. State, 209 Ga. 282 , 71 S.E.2d 548 (1952); Atlanta Newspapers, Inc. v. State, 101 Ga. App. 105 , 113 S.E.2d 148 (1960); Wolfe v. City of Albany, 189 F. Supp. 217 (M.D. Ga. 1960); Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 219 F. Supp. 770 (M.D. Ga. 1960); Wilkinson v. United States, 365 U.S. 399, 81 S. Ct. 567 , 5 L. Ed. 2 d 633 (1961); Braden v. United States, 365 U.S. 431, 81 S. Ct. 584 , 5 L. Ed. 2 d 653 (1961); International Ass'n of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784 , 6 L. Ed. 2 d 1141 (1961); Williams v. State, 217 Ga. 312 , 122 S.E.2d 229 (1961); City of Atlanta v. Lopert Pictures Corp., 217 Ga. 432 , 122 S.E.2d 916 (1961); International Longshoremen's Ass'n v. Georgia Ports Auth., 217 Ga. 712 , 124 S.E.2d 733 (1962); City of Atlanta v. Columbia Pictures Corp., 218 Ga. 714 , 130 S.E.2d 490 (1963); Anderson v. City of Albany, 321 F.2d 649 (5th Cir. 1963); Rogers v. Mayor of Atlanta, 219 Ga. 799 , 136 S.E.2d 342 (1964); Walker v. State, 220 Ga. 415 , 139 S.E.2d 278 (1964); Mack v. Connor, 220 Ga. 450 , 139 S.E.2d 286 (1964); Willis v. Pickrick Restaurant, 231 F. Supp. 396 (N.D. Ga. 1964); Curtis Publishing Co. v. Butts, 351 F.2d 702 (5th Cir. 1965); Barnum v. Chambliss, 247 F. Supp. 794 (M.D. Ga. 1965); Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783 , 1 6 L. Ed. 2 d 925 (1966); Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966); Wilson v. State, 223 Ga. 531 , 156 S.E.2d 446 (1967); Southwire Co. v. NLRB, 383 F.2d 235 (5th Cir. 1967); Epstein v. Maddox, 277 F. Supp. 613 (N.D. Ga. 1967); Troutman v. Southern Ry., 296 F. Supp. 963 (N.D. Ga. 1968); Sams v. Olah, 225 Ga. 497 , 169 S.E.2d 790 (1969); Graves v. Walton County Bd. of Educ., 410 F.2d 1153 (5th Cir. 1969); Walker v. Blackwell, 411 F.2d 23 (5th Cir. 1969); Wesley v. City of Savannah, 294 F. Supp. 698 (S.D. Ga. 1969); Bon Air Hotel, Inc. v. Time, Inc., 295 F. Supp. 704 (S.D. Ga. 1969); Great Speckled Bird v. Stynchcombe, 298 F. Supp. 1291 (N.D. Ga. 1969); Cato v. Georgia, 302 F. Supp. 1143 (N.D. Ga. 1969); Wilson v. Gooding, 431 F.2d 855 (5th Cir. 1970); Porter v. Kimzey, 309 F. Supp. 993 (N.D. Ga. 1970); United States v. Bob Lawrence Realty, Inc., 313 F. Supp. 870 (N.D. Ga. 1970); Georgia Socialist Workers Party v. Fortson, 315 F. Supp. 1035 (N.D. Ga. 1970); Jenness v. Fortson, 403 U.S. 431, 91 S. Ct. 1970 , 29 L. Ed. 2 d 554 (1971); 1024 Peachtree Corp. v. Slaton, 228 Ga. 102 , 184 S.E.2d 144 (1971); Edwards v. Sammons, 437 F.2d 1240 (5th Cir. 1971); United States ex rel. Huguley v. Martin, 325 F. Supp. 489 (N.D. Ga. 1971); United States v. Mitchell, 327 F. Supp. 476 (N.D. Ga. 1971); Cooley v. Endictor, 340 F. Supp. 15 (N.D. Ga. 1971); Dudley v. State, 228 Ga. 551 , 186 S.E.2d 875 (1972); Breaux v. State, 230 Ga. 506 , 197 S.E.2d 695 (1973); Fishman v. State, 128 Ga. App. 505 , 197 S.E.2d 467 (1973); Sonesta Int'l Hotels Corp. v. Colony Square Co., 482 F.2d 281 (5th Cir. 1973); Goodman v. Ault, 358 F. Supp. 743 (N.D. Ga. 1973); United States v. Best, 363 F. Supp. 11 (S.D. Ga. 1973); Hipple v. Warner, 368 F. Supp. 301 (N.D. Ga. 1973); Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750 , 41 L. Ed. 2 d 642 (1974); Granese v. State, 232 Ga. 193 , 206 S.E.2d 26 (1974); Dyke v. State, 232 Ga. 817 , 209 S.E.2d 166 (1974); Jones v. Ault, 67 F.R.D. 124 (S.D. Ga. 1974); State v. Young, 234 Ga. 488 , 216 S.E.2d 586 (1975); Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975); Board of Educ. v. AFSCME, 401 F. Supp. 687 (N.D. Ga. 1975); Davis v. Griffin-Spalding County Bd. of Educ., 445 F. Supp. 1048 (N.D. Ga. 1975); United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619 , 48 L. Ed. 2 d 71 (1976); Ballew v. State, 138 Ga. App. 530 , 227 S.E.2d 65 (1976); Hall v. State, 139 Ga. App. 488 , 229 S.E.2d 12 (1976); Thomas v. State, 237 Ga. 690 , 229 S.E.2d 458 (1976); Watts v. Six Flags Over Ga., Inc., 140 Ga. App. 106 , 230 S.E.2d 34 (1976); United States v. King, 532 F.2d 505 (5th Cir. 1976); Nelson v. Rosenthal, 539 F.2d 1034 (5th Cir. 1976); Ashworth v. Fortson, 424 F. Supp. 1178 (N.D. Ga. 1976); Scott v. McDonald, 70 F.R.D. 568 (N.D. Ga. 1976); Pittman v. Cohn Communities, Inc., 240 Ga. 106 , 239 S.E.2d 526 (1977); Cargal v. State, 144 Ga. App. 238 , 241 S.E.2d 8 (1977); Roberts v. Cameron-Brown Co., 556 F.2d 356 (5th Cir. 1977); United States v. Southern Motor Carriers Rate Conference, 439 F. Supp. 29 (N.D. Ga. 1977); Simpson v. State, 144 Ga. App. 657 , 242 S.E.2d 265 (1978); Underwood v. State, 144 Ga. App. 684 , 242 S.E.2d 339 (1978); Pierce v. State, 145 Ga. App. 680 , 244 S.E.2d 589 (1978); Farmer v. Holton, 146 Ga. App. 102 , 245 S.E.2d 457 (1978); Hess v. State, 146 Ga. App. 874 , 247 S.E.2d 546 (1978); Beall v. Department of Revenue, 148 Ga. App. 5 , 251 S.E.2d 4 (1978); Speight v. State, 148 Ga. App. 87 , 251 S.E.2d 36 (1978); Paperback Book Mart, Inc. v. State, 148 Ga. App. 377 , 251 S.E.2d 396 (1978); Love v. Sessions, 568 F.2d 357 (5th Cir. 1978); Rosanova v. Playboy Enters., Inc., 580 F.2d 859 (5th Cir. 1978); Willingham v. Carter, 447 F. Supp. 301 (S.D. Ga. 1978); United States v. Brown Transp. Corp., 448 F. Supp. 773 (N.D. Ga. 1978); High Ol' Times, Inc. v. Busbee, 449 F. Supp. 364 (N.D. Ga. 1978); Evans v. Just Open Gov't, 242 Ga. 834 , 251 S.E.2d 546 (1979); Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979); Doe v. Busbee, 471 F. Supp. 1326 (N.D. Ga. 1979); Playmate Cinema, Inc. v. State, 154 Ga. App. 871 , 269 S.E.2d 883 (1980); Hodges v. Tomberlin, 510 F. Supp. 1280 (S.D. Ga. 1980); Gateway Books, Inc. v. State, 247 Ga. 16 , 276 S.E.2d 1 (1981); Williams v. Church's Fried Chicken, Inc., 158 Ga. App. 26 , 279 S.E.2d 465 (1981); McCrary v. Poythress, 638 F.2d 1308 (5th Cir. 1981); Thomasville Branch of NAACP v. Thomas County, 639 F.2d 1384 (5th Cir. 1981); Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir. 1981); Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981); Bailey v. Vining, 514 F. Supp. 452 (M.D. Ga. 1981); Dunten v. Kibler, 518 F. Supp. 1146 (N.D. Ga. 1981); Windfaire, Inc. v. Busbee, 523 F. Supp. 868 (N.D. Ga. 1981); Dills v. City of Marietta, 674 F.2d 1377 (11th Cir. 1982); Ambassador College v. Geotzke, 675 F.2d 662 (5th Cir. 1982); Kyle v. Hanberry, 677 F.2d 1386 (11th Cir. 1982); Lamar v. Banks, 684 F.2d 714 (11th Cir. 1982); Clemons v. Dougherty County, 684 F.2d 1365 (11th Cir. 1982); Pierson v. News Group Publications, Inc., 549 F. Supp. 635 (S.D. Ga. 1982); Rhodes v. Gwinnett County, 557 F. Supp. 30 (N.D. Ga. 1982); Ray v. Edwards, 557 F. Supp. 664 (N.D. Ga. 1982); Hill Aircraft & Leasing Corp. v. Fulton County, 561 F. Supp. 667 (N.D. Ga. 1982); Penthouse Int'l, Ltd. v. McAuliffe, 702 F.2d 925 (11th Cir. 1983); Fiske v. Lockheed-Georgia Co., 568 F. Supp. 590 (N.D. Ga. 1983); Kleiner v. First Nat'l Bank, 102 F.R.D. 754 (N.D. Ga. 1983); Caldwell v. Bateman, 252 Ga. 144 , 312 S.E.2d 320 (1984); Ray v. Edwards, 725 F.2d 655 (11th Cir. 1984); Stone Mt. Game Ranch, Inc. v. Hunt, 746 F.2d 761 (11th Cir. 1984); Cotton States Mut. Ins. Co. v. Anderson, 749 F.2d 663 (11th Cir. 1984); American Booksellers Ass'n v. Webb, 590 F. Supp. 677 (N.D. Ga. 1984); Watkins v. State, 254 Ga. 267 , 328 S.E.2d 537 (1985); Holley v. Seminole County Sch. Dist., 763 F.2d 399 (11th Cir. 1985); Kelly v. Macon-Bibb County Bd. of Elections, 608 F. Supp. 1036 (M.D. Ga. 1985); Jersawitz v. Hanberry, 610 F. Supp. 535 (N.D. Ga. 1985); Stevens v. Gay, 792 F.2d 1000 (11th Cir. 1986); Speedway Grading Corp. v. Gardner, 206 Ga. App. 439 , 425 S.E.2d 676 (1992); Top Shelf, Inc. v. Mayor & Alderman ex rel. City of Savannah, 832 F. Supp. 361 (S.D. Ga. 1993); Ford v. City of Oakwood, 905 F. Supp. 1063 (N.D. Ga. 1995); Anderson v. State, 231 Ga. App. 807 , 499 S.E.2d 717 (1998); Cox v. Barber, 275 Ga. 415 , 568 S.E.2d 478 (2002).

Scope and Purpose

1. In General

Right to receive information and ideas, regardless of their social worth, is fundamental to free society. Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243 , 22 L. Ed. 2 d 542 (1969).

U.S. Const., amend. 1 gives freedom of mind the same security as freedom of conscience. Stoner v. Thompson, 377 F. Supp. 585 (M.D. Ga. 1974).

Clear and present danger required for restricting rights. - No public official, absent a showing of clear and present danger, can restrict rights under U.S. Const., amend. 1. Stoner v. Thompson, 377 F. Supp. 585 (M.D. Ga. 1974).

Great secular causes, with small ones, are guarded. - The grievances for redress of which the right of petition was ensured, and with it the right of assembly, are not solely religious or political ones; the rights of free speech and free press are not confined to any field of human interest. Stoner v. Thompson, 377 F. Supp. 585 (M.D. Ga. 1974).

Guarantees in U.S. Const., amend. 1 are protected by U.S. Const., amend. 14. Westberry v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975).

First amendment rights take priority over national policy promoting racial integration. - Rights guaranteed under U.S. Const., amend. 1 are rights more compelling than any national policy promoting racial integration. Daugherty v. City of E. Point, 447 F. Supp. 290 (N.D. Ga. 1978).

Constitutional protection is presumed. - Constitutional protection under U.S. Const., amend. 1 is presumed, and exceptions to protection are few in number. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff'd, 621 F.2d 141 (5th Cir. 1980).

Under U.S. Const., amend. 1 there is no such thing as a false idea. Lindsey v. Board of Regents, 607 F.2d 672 (5th Cir. 1979).

Independent review of constitutional claims. - The first amendment values applicable to states are protected by powers vested in appellate courts to make an independent review of constitutional claims. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

The first amendment values applicable to states through U.S. Const., amend. 14 are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

First amendment, in conjunction with fourteenth, prohibits governments from "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." These expressly guaranteed freedoms share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

When rights subject to regulation. - First amendment rights are not immunized from regulation when they are used as an integral part of conduct which violates a valid statute. United States v. Southern Motor Carriers Rate Conference, Inc., 672 F.2d 469 (5th Cir. 1982), on rehearing, 702 F.2d 532 (5th Cir. 1984), rev'd on other grounds, 471 U.S. 48, 105 S. Ct. 1721 , 85 L. Ed. 2 d 36 (1985).

Collection of records implicating rights. - Even where records implicating an individual's first amendment rights are involved, the prohibition against collection of such records is not absolute. Clarkson v. IRS, 678 F.2d 1368 (11th Cir. 1982), cert. denied, 481 U.S. 1031, 107 S. Ct. 1961 , 95 L. Ed. 2 d 533 (1987).

No first amendment right to accident reports. - Private investigator seeking information for commercial solicitation has no first amendment constitutional right of special access to motor vehicle accident reports. Spottsville v. Barnes, 135 F. Supp. 2d 1316 (N.D. Ga. 2001).

Motorcycle helmet law. - There is no first amendment right to ride a motorcycle wearing a baseball cap, a bandanna, or bareheaded. ABATE of Ga., Inc. v. Georgia, 137 F. Supp. 2d 1349 (N.D. Ga. 2001), aff'd, 264 F.3d 1315 (11th Cir. 2001).

2. Balancing Interests of Citizen and State

Limitation upon individual liberty must have appropriate relation to the safety of the state. - Legislation which goes beyond this need violates the principle of the Constitution. Wolfe v. City of Albany, 104 Ga. App. 264 , 121 S.E.2d 331 (1961).

Rights protected by U.S. Const., amend. 1, though fundamental, are not absolute, and must be tempered to a degree by the concepts of order and a healthy respect for the rights of other citizens. Alonso v. State, 231 Ga. 444 , 202 S.E.2d 37 (1973), appeal dismissed, 417 U.S. 938, 94 S. Ct. 3062 , 41 L. Ed. 2 d 661 (1974).

Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. Community Action Group v. City of Columbus, 473 F.2d 966 (5th Cir. 1973).

Two-tier test is utilized to determine whether an infringement of first amendment's rights is permissible. - First, there must be shown to exist a significant or compelling state interest served by the statute in question. Second, it must be determined whether there is a substantial relationship between the statute and the stated purpose, or compelling interest, of the state. Stoner v. Fortson, 379 F. Supp. 704 (N.D. Ga. 1974).

Ordinance regulating sale and consumption of alcohol on adult premises. - The constitutionality of the ordinance was upheld and the County Board of Commissioners committed no error in employing a "reasonable belief" standard in scrutinizing the studies the county relied upon in enacting the ordinance that prohibited the sale and consumption of alcohol at adult entertainment establishments. Cafe Erotica, Inc. v. Peach County, 272 Ga. 7 , 524 S.E.2d 728 (2000).

First amendment freedoms are not absolute. - They are properly restricted when sufficiently important governmental interest appears. Theriault v. Carlson, 495 F.2d 390 (5th Cir.), cert. denied, 419 U.S. 1003, 95 S. Ct. 323 , 42 L. Ed. 2 d 279 (1974), later appeal, 547 F.2d 1279 (5th Cir.), cert. denied, 434 U.S. 871, 98 S. Ct. 216 , 54 L. Ed. 2 d 150 (1977).

Conflict between legislative power and individual rights must be accommodated by legislation drawn more narrowly to avoid the conflict. A statute touching protected rights under U.S. Const., amend. 1 must be narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the state. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

States bear the burden of proving exceptions to constitutional protection. - States bear the burden of proving that a particular exception to the protection of U.S. Const., amend. 1 is applicable. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff'd, 621 F.2d 141 (5th Cir. 1980).

Ultimate balancing of interests of citizen and state with regard to first amendment protection remains in sphere of court. Williams v. Board of Regents, 629 F.2d 993 (5th Cir. 1980), cert. denied, 452 U.S. 926, 101 S. Ct. 3063 , 69 L. Ed. 2 d 428 (1981).

U.S. Const., amend. 1 is a restraint on government, not on private persons. Belluso v. Turner Communications Corp., 633 F.2d 393 (5th Cir. 1980).

Failure to balance rights. - Trial court erred by enjoining the parties and counsel from discussing the case with the media or placing information about the case on social media as the court failed to balance the danger with the parties' and counsels' First Amendment rights. Baskin v. Hale, 337 Ga. App. 420 , 787 S.E.2d 785 (2016), cert. denied, No. S16C1762, 2017 Ga. LEXIS 12 (Ga. 2017).

3. Overbroad Legislation

Standards of permissible statutory vagueness are strict in the area of free expression. Because U.S. Const., amend. 1's freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Wilson v. Gooding, 303 F. Supp. 952 (N.D. Ga.), appeal dismissed, 396 U.S. 112, 90 S. Ct. 397 , 24 L. Ed. 2 d 306 (1969), aff'd, 431 F.2d 855 (5th Cir. 1970), 405 U.S. 518, 92 S. Ct. 1103 , 31 L. Ed. 2 d 408 (1972).

First amendment rights have assumed a protected place in the jurisprudence. Great care must be taken to assure that vague or overbroad laws do not infringe upon constitutional rights under U.S. Const., amend. 1. Wilson v. Gooding, 303 F. Supp. 952 (N.D. Ga.), appeal dismissed, 396 U.S. 112, 90 S. Ct. 397 , 24 L. Ed. 2 d 306 (1969), aff'd, 431 F.2d 855 (5th Cir. 1970), 405 U.S. 518, 92 S. Ct. 1103 , 31 L. Ed. 2 d 408 (1972).

O.C.G.A. § 16-10-20 was not void for vagueness. - O.C.G.A. § 16-10-20 was not unconstitutionally vague under Ga. Const. 1983, Art. I, Sec. I, Para. I, as: (1) the statute gave a defendant ample notice that the prohibited conduct; (2) the statute also provided sufficient objective standards to those who were charged with enforcing it; and (3) a defendant's act was made criminal when a false statement was made, without regard to the result of that act, and the fact that application of the statute's standards sometimes required an assessment of the surrounding circumstances to determine if the statute was violated, did not render it unconstitutional. Banta v. State, 281 Ga. 615 , 642 S.E.2d 51 (2007).

Broad prophylactic rules in the area of free expression are suspect. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

Improper restrictive pretrial publicity order. - Ga. St. Bar R. 4-102(d):3.6 required a finding that extrajudicial statements to media members would have had a substantial likelihood of materially prejudicing the trial; where, in restricting the extrajudicial statements to the media members by the non-lawyers, the parties, experts, witnesses, and investigators involved in a criminal trial, a trial court failed to find, based on evidence in the record, that the extrajudicial statements would have had a substantial likelihood of materially prejudicing the trial, and to the extent the order contravened Ga. St. Bar R. 4-102(d):3.6, it was overbroad, and was reversed. Atlanta Journal-Constitution v. State, 266 Ga. App. 168 , 596 S.E.2d 694 (2004).

Purpose of striking down overbroad or vague statutes. - Overbreadth doctrine condemns those means to that legitimate end whereby first amendment rights may justifiably be infringed, which comprehend too broad an incursion upon the realm of first amendment activity. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

One of the purposes of striking down statutes which are "overbroad" is to assure the public that the dissemination of materials protected by the first amendment will not be suppressed. American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981).

The purpose of striking down statutes which are "vague" is to prevent the arbitrary enforcement of laws that fail to give officials or the public any notice of what is prohibited. American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981).

Abstention by federal courts inappropriate. - Abstention by federal courts, remitting controversy to state courts, is particularly inappropriate in an overbreadth or vagueness case grounded upon U.S. Const., amend. 1. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

No showing of appropriateness of narrower statute required. - Attacks on overly broad statutes are allowed with no requirement that the person making the attack demonstrate that the person's own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

Standing requirement relaxed for one attacking overly broad statute. - The Supreme Court has altered its traditional rules of standing to permit - in the area of U.S. Const., amend. 1 - attacks on overly broad statutes with no requirement that the person making the attack demonstrate that the person's own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Federal Election Comm'n v. Lance, 635 F.2d 1132 (5th Cir. 1981), appeal dismissed and cert denied, 453 U.S. 917, 101 S. Ct. 3151 , 69 L. Ed. 2 d 999 (1981) '.

Judicial remedy where no rehabilitative construction possible. - Where a law is substantially overbroad, in that it sweeps within its scope a wide range of both protected and nonprotected expressive activity, and where no readily apparent construction suggests itself as a vehicle for rehabilitating the statute in a single proceeding, the courts may reject simple interest balancing and require the legislature to achieve its ends by less drastic means. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971); Smith v. Price, 446 F. Supp. 828 (M.D. Ga. 1977), rev'd on other grounds, 616 F.2d 1371 (5th Cir. 1980).

Invalidation of statute to prevent "chilling" of protected conduct. - Rather than await case-by-case excision of a statute's overbreadth or vagueness through review of its application to particular conduct, which would be needlessly time-consuming and ineffective, courts, under the rubric of the overbreadth doctrine, may invalidate such a statute facially so as to end its deterrence of constitutionally protected activity, since otherwise the overbroad law would remain as a deterrent to others who, because of fear of statutory reprisals, might forego protected activity rather than test their privileges under U.S. Const., amend. 1 administratively or judicially. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

Governmental purposes should be narrowly achieved. - Even though a governmental purpose may be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can more narrowly be achieved. A governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Melton v. City of Atlanta, 324 F. Supp. 315 (N.D. Ga. 1971); Smith v. Price, 446 F. Supp. 828 (M.D. Ga. 1977), rev'd on other grounds, 616 F.2d 1371 (5th Cir. 1980).

Indecent or obscene speech statute overbroad. - Defendant's conviction for violating O.C.G.A. § 46-5-21(a)(1) was reversed as the statute was an overbroad infringement on defendant's first amendment and Ga. Const. 1983, Art. I, Sec. I, Para. V rights to free speech; the statute does not contain the necessary language setting out the least restrictive means to further a compelling state interest as it applies to indecent or obscene speech, whether heard by children or adults, and whether unwelcomed by listeners or spoken with intent to please. McKenzie v. State, 279 Ga. 265 , 626 S.E.2d 77 (2005).

Vague statutes violate due process. - The test that has been enunciated is whether the terms of a statute are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. DeKalb Real Estate Bd., Inc. v. Chairman & Bd. of Comm'rs of Rds. & Revenues, 372 F. Supp. 748 (N.D. Ga. 1973).

Vague statutes requiring people of common intelligence to guess at meaning are unconstitutional. - A statute concerning rights under U.S. Const., amend. 1 must not forbid or require the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application, because lack of a fair warning to actors or lack of adequate standards to guide enforcers also may lead to a "chill" on privileged activity. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

Absent some qualification on "bias or prejudice", O.C.G.A. § 17-10-17 is left so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application; thus, § 17-10-17 is too vague to justify the imposition of enhanced criminal punishment for its violation. Furthermore, § 17-10-17 may not be upheld because it impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications; therefore, the sentence enhancement that defendants selected their victims because of racial bias and prejudice violated defendants' due process rights under U.S. Const., amend. 1, 5, 8, and 14 and the corresponding state constitutional provisions and the sentence enhancements were reversed. Botts v. State, 278 Ga. 538 , 604 S.E.2d 512 (2004).

Vagueness finding reversed where party lacked standing to challenge constitutionality of county zoning provision. - Because a lessor and a lessee did not preserve an "as applied" challenge to two county zoning code provisions, did not seek a special use permit, and lacked standing to make a constitutional challenge, the trial court erred in finding the provisions unconstitutionally vague, regardless of whether they had an otherwise viable facial challenge. Catoosa County v. R.N. Talley Props., LLC, 282 Ga. 373 , 651 S.E.2d 7 (2007).

United States Supreme Court has the duty to say where individual's freedom ends and state's power begins. - Choice on that border, always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by U.S. Const., amend. 1. Stoner v. Thompson, 377 F. Supp. 585 (M.D. Ga. 1974).

Terroristic threats statute not overly broad. - Georgia's Terroristic Threats statute, O.C.G.A. § 16-11-37(a) , did not violate the defendant's First Amendment's right to free speech because the statute's reckless scienter was not overly broad as recklessness clearly required an analysis of the accused's state of mind at the time of the crime, and communicating a threat of violence in a reckless manner did meet the definition of a true threat as recklessness required a knowing act such as conscious disregard of a substantial risk. Major v. State, 301 Ga. 147 , 800 S.E.2d 348 (2017).

4. Intervention and Injunctive Relief

Loss of first amendment freedoms, for even minimal periods, unquestionably constitutes irreparable injury. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

Injunctive relief where irreparable harm to first amendment rights probable. - The United States Supreme Court recognized that mere prosecution under a statute which regulates expression and which is unconstitutional on its face, or under a statute which is being applied in bad faith for purposes of discouraging the exercise of protected rights under U.S. Const., amend. 1, gives rise to the irreparable harm which is a prerequisite to injunctive relief; but injunctive relief is not appropriate to interfere with the enforcement of state criminal laws which do not affect these rights, for in such cases mere prosecution will not produce irreparable harm. Eberhart v. Massell, 311 F. Supp. 654 (N.D. Ga. 1970).

Enjoining of state or military prosecution by federal court. - Only within narrow limits and where first amendment rights are involved will federal courts enjoin state or military prosecution. Torres v. Connor, 329 F. Supp. 1025 (N.D. Ga. 1970).

Ex parte temporary restraining orders without notice in area of first amendment freedoms. - There is a place in jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by U.S. Const., amend. 1 for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate. Sumbry v. Land, 127 Ga. App. 786 , 195 S.E.2d 228 (1972), cert. denied, 414 U.S. 1079, 94 S. Ct. 598 , 38 L. Ed. 2 d 486 (1973); Anderson v. Dean, 354 F. Supp. 639 (N.D. Ga. 1973).

Order involving first amendment must be narrowly couched. - Order issued in area of rights of U.S. Const., amend. 1 must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order. Anderson v. Dean, 354 F. Supp. 639 (N.D. Ga. 1973).

Circumstances necessary for federal court intervention in ongoing state proceeding. - Even in the area of first amendment rights, special circumstances such as bad faith and harassment must be present before a federal court may intervene in an ongoing state proceeding. Sanders v. McAuliffe, 364 F. Supp. 654 (N.D. Ga. 1973).

Elements indicating injunction not illegal prior restraint. - If prior to the issuance of the injunction an adequate determination is made that certain communication is unprotected by U.S. Const., amend. 1; that the order is based on a continuing course of repetitive conduct; and that the order is clear and sweeps no more broadly than necessary, then the injunction is not invalid as an illegal prior restraint. Retail Credit Co. v. Russell, 234 Ga. 765 , 218 S.E.2d 54 (1975).

Freedom of Religion

1. Scope of Free Exercise

Scope of establishment clause. - See American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

Religious belief not justification for criminal act. - A party's religious belief cannot be accepted as justification for committing an overt act made criminal by the law of the land. Coleman v. City of Griffin, 55 Ga. App. 123 , 189 S.E. 427 (1936), appeal dismissed, 302 U.S. 636, 58 S. Ct. 23 , 82 L. Ed. 495 (1937).

Personal beliefs are not to be considered religious for purposes of U.S. Const., amend. 1. Sapp v. Renfroe, 511 F.2d 172 (5th Cir. 1975).

Restraints upon free exercise of religion unlawful. - Restraints upon the free exercise of religion according to the dictates of conscience are unlawful under the state and federal constitutions. Coleman v. City of Griffin, 55 Ga. App. 123 , 189 S.E. 427 (1936), appeal dismissed, 302 U.S. 636, 58 S. Ct. 23 , 82 L. Ed. 495 (1937).

Limits to free exercise of religion. - No external authority is to place itself between the finite being and the infinite when the former is seeking to render the homage that is due, and in a mode which commends itself to the finite being's conscience and judgment as being suitable for the finite being to render, and acceptable to its object; but religious liberty does not include the right to introduce and carry out every scheme or purpose which individuals see fit to claim as a part of their religious system. Coleman v. City of Griffin, 55 Ga. App. 123 , 189 S.E. 427 (1936), appeal dismissed, 302 U.S. 636, 58 S. Ct. 23 , 82 L. Ed. 495 (1937).

Only gravest abuses permit limitation on free exercise of religion. - Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation of the free exercise of religion. Restrictions on the free exercise of religion are allowed only when it is necessary to prevent grave and immediate danger to interests which the state may lawfully protect. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

First amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. The state must be steadfastly neutral in all matters of faith, and neither favor nor inhibit religion. Polakoff v. Henderson, 370 F. Supp. 690 (N.D. Ga. 1973), aff'd, 488 F.2d 977, (5th Cir. 1974).

Validity of ordinance prohibiting distribution of literature impacting Jehovah's Witness. - Ordinance prohibiting the distributing of literature within the city limits without prior written permission from the city manager did not deprive the defendant, a Jehovah's Witness, of the constitutional right of free exercise and enjoyment of religious profession and worship, even though it prohibited the defendant from introducing and carrying out a scheme or purpose which the defendant saw fit to claim as a part of the defendant's religious system. Coleman v. City of Griffin, 55 Ga. App. 123 , 189 S.E. 427 (1936), appeal dismissed, 302 U.S. 636, 58 S. Ct. 23 , 82 L. Ed. 495 (1937).

Municipal ordinance restricting distribution of magazines valid for public safety. - A municipal ordinance providing that it shall be illegal "for any person, firm, or corporation to sell or offer for sale any goods, wares, merchandise, pamphlets, magazines, maps, or other article of value, on any Saturday between the hours of 12 noon and 9 P.M. on any of the following congested sidewalks of said city," designating certain sidewalks and providing a penalty therefore, is a valid and reasonable regulation for public safety and convenience, under the police power of the city; and where plaintiffs seek to enjoin enforcement against them of the ordinance, on the grounds that the magazines sold and offered for sale are devoted to religious subjects, and advocate the adoption of a particular form of religion, the distribution of which being a part of their religious belief, and urge that to prohibit the sale of the magazines would be in violation of their rights of religious freedom under the state and federal constitutions, it is not error to deny an injunction. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 (1943).

Ordinance forbidding sale of pamphlets for public safety invalid as applied to sale of religious literature. - Ordinance forbidding the sale of pamphlets between the hours of 10 A.M. and 9 P.M., on certain designated sidewalks, and providing a penalty therefore, is a valid reasonable regulation for public safety and convenience, but a proper interpretation excludes its application to the distribution of religious pamphlets or literature by selling or offering them for sale at the prohibited time and place, when such distribution does not interfere with the traffic, and the safety, comfort, or convenience of the public in the use of the street, as such an application would render the ordinance unconstitutional, as a violation of the defendant's constitutional guarantee of freedom of religion. Burns v. City of Carrollton, 72 Ga. App. 628 , 34 S.E.2d 621 (1945).

Exercise of religious freedom with due regard for others' rights. - A person's right to exercise religious freedom, which may be manifested by acts, ceases where it overlaps and transgresses the rights of others. Everyone's rights must be exercised with due regard for the rights of others. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 (1943).

Balancing of religious freedom with ordered liberty. - Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make their own standards on matters of conduct in which society as a whole has important interests. Theriault v. Carlson, 495 F.2d 390 (5th Cir.), cert. denied, 419 U.S. 1003, 95 S. Ct. 323 , 42 L. Ed. 2 d 279 (1974), later appeal, 547 F.2d 1279 (5th Cir.), cert. denied, 434 U.S. 871, 98 S. Ct. 216 , 54 L. Ed. 2 d 150 (1977).

Unlimited constitutional right to practice any religion. - Under the constitutional provisions, both state and federal, the right to adopt, profess, entertain, or advocate any religious views, or to fail or refuse to do so, is unlimited, and cannot be controlled by any law. There is no authority under the system of jurisprudence to alter, modify, or infringe upon this right. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 (1943).

Constitutional guarantee of religious freedom excludes objectionable acts. - While there is no power to control what a person may believe about religion or the type of religion a person may adopt or profess, yet there is a power under the law to limit the person's acts, even though to do such acts may be part of the person's religious belief. The constitutional guarantee of the exercise of religious freedom does not extend to acts which are inimical to the peace, good order, and morals of society. Jones v. City of Moultrie, 196 Ga. 526 , 27 S.E.2d 39 (1943).

Acts inimical to peace, good order, and morals not protected. - Constitutional guarantee of exercise of religious freedom does not extend to acts inimical to the peace, good order, and morals of society. A person's right to exercise religious freedom, which may be manifested by acts, ceases where it overlaps and transgresses the rights of others. Ferguson v. City of Moultrie, 71 Ga. App. 13 , 29 S.E.2d 786 (1944).

Balancing of freedoms of speech and religion. - The constitutional right of one to freedom of speech is counterbalanced by the right of the many to their constitutional freedom in the practice of their religion; neither occupies a preferred position in the constitution. Jones v. State, 219 Ga. 848 , 136 S.E.2d 358 , cert. denied, 379 U.S. 935, 85 S. Ct. 330 , 13 L. Ed. 2 d 345 (1964).

Zoning ordinance excluding church from residential area invalid. - Generally, any zoning ordinance that absolutely excludes churches from residential areas is invalid under constitutional guarantees. Churches are, however, subject to reasonable regulation both referring to property in the zone generally and to churches specifically, provided that the regulations are reasonable and contain some standards. Rogers v. Mayor of Atlanta, 110 Ga. App. 114 , 137 S.E.2d 668 (1964).

First amendment enjoins the employment of organs of government for essentially religious purposes. Presbyterian Church v. Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393 U.S. 440, 89 S. Ct. 601 , 21 L. Ed. 2 d 658 (1969).

Civil courts forbidden from deciding ecclesiastical issues. - U.S. Const., amend. 1 commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, states, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions. Presbyterian Church v. Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393 U.S. 440, 89 S. Ct. 601 , 21 L. Ed. 2 d 658 (1969).

Although civil courts are the proper forum for resolving property disputes, in the case of disputes over church properties, they are forbidden from determining ecclesiastical questions in the process. Presbyterian Church v. Eastern Heights Presbyterian Church, 225 Ga. 259 , 167 S.E.2d 658 (1969), cert. denied, 396 U.S. 1041, 90 S. Ct. 680 , 24 L. Ed. 2 d 685 (1970).

U.S. Const., amend. 1 prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice; as a corollary to this commandment, the amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization. Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020 , 61 L. Ed. 2 d 775 (1979).

A court could not, consistent with the first amendment, adjudicate a dispute concerning a parliamentary ruling at the 1985 Southern Baptist Convention. The first amendment bars civil court resolution of any controversy concerning a matter of ecclesiastical government. Crowder v. Southern Baptist Convention, 828 F.2d 718 (11th Cir. 1987), cert. denied, 484 U.S. 1066, 108 S. Ct. 1028 , 98 L. Ed. 2 d 992 (1988).

Courts can consider distribution of assets. - While it is true that the courts may not inquire into a controversy relating to religious matters such as internal church procedures and expulsion from church membership, the trial court does have jurisdiction to resolve issues that do not require an impermissible intrusion or excessive entanglement into ecclesiastical matters without intruding upon religious or doctrinal matters; thus, trial courts may legitimately consider matters such as the distribution or disposition of tangible church property such as bank accounts, realty, and other temporal assets. Members of Calvary Missionary Baptist Church v. Jackson, 259 Ga. App. 647 , 578 S.E.2d 275 (2003).

Trial court had jurisdiction to issue an interlocutory injunction against a minister from coming onto church property in order to protect the property rights of the property owner. Anderson v. Dowd, 268 Ga. 146 , 485 S.E.2d 764 (1997).

Principle of separation of church and state guaranteed by U.S. Const., amend. 1 cannot extend beyond the grave any punishment imposed by sentence of courts for whatever term of years, and any attempt to do so will not be effective beyond the limit of the defendant's earthly span of existence. Hill v. State, 119 Ga. App. 612 , 168 S.E.2d 327 (1969).

Prohibition of employment of government organs for religious purposes. - Because of the hazards to free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern, the first amendment enjoins the employment of organs of government for essentially religious purposes. Hickman v. Owens, 322 F. Supp. 1278 (N.D. Ga. 1971).

"Church" defined. - The term "church" is one of very comprehensive signification, and imports an organization for religious purposes, for the public worship of God. McClure v. Salvation Army, 323 F. Supp. 1100 (N.D. Ga. 1971), aff'd, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

Salvation Army is a religion regardless of its lack of traditional houses of worship. McClure v. Salvation Army, 323 F. Supp. 1100 (N.D. Ga. 1971), aff'd, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

Freedom of religious organizations from state interference. - U.S. Const., amend. 1 grants a spirit of freedom for religious organizations, an independence from secular control or manipulation, and, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

Compelling state interest required for regulation of religion. - Only in rare instances where a compelling state interest in the regulation of a subject within the state's constitutional power to regulate is shown can a court uphold state action which imposes even an incidental burden on the free exercise of religion. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

Congressional inhibition of religious acts for public welfare. - Congress may inhibit or prevent acts, as opposed to beliefs, even where those acts are in accord with religious convictions or beliefs, where the public interest concerns outweigh first amendment protections. McClure v. Salvation Army, 323 F. Supp. 1100 (N.D. Ga. 1971), aff'd, 460 F.2d 553, (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

Judiciary as well as legislature prohibited from interfering with religious freedom. - Constitutional principles prevent the judiciary, as well as the legislature, from interfering with the free exercise of religion. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

Decisions of church tribunals conclusive in secular courts. - In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise. Whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest church judicatories to which the matter has been carried, legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

Exclusion from church conclusive upon court. - The validity of the exclusion of individuals from membership in a church is conclusive upon the civil courts. Anderson v. Dowd, 268 Ga. 146 , 485 S.E.2d 764 (1997).

Blanket prohibition of religious solicitation in public areas overbroad. - The blanket prohibition on the use of the public streets, areas, and parks for solicitation or propagation of religious doctrine, regardless of any other circumstances, between the hours of 6:00 P.M. and 9:00 A.M. is overbroad. Westfall v. Board of Comm'rs, 477 F. Supp. 862 (N.D. Ga. 1979).

Court order requiring mother to undergo surgery to save her baby not violative of religious freedom. - Court order requiring a mother to undergo surgery against her religious convictions in order to preserve the life of her fully developed unborn child did not violate U.S. Const., amend. 1. Jefferson v. Griffin Spalding County Hosp. Auth., 247 Ga. 86 , 274 S.E.2d 457 (1981).

Tithing under Bankruptcy Code. - A constitutional challenge to a determination that tithing is an unreasonable expense, subjecting a Chapter 7 debtor to dismissal under 11 U.S.C. § 707(b), is not sustainable, as the free exercise clause does not require the Bankruptcy Code to yield to the debtor's desire to tithe. In re Lee, 162 Bankr. 31 (Bankr. N.D. Ga. 1993).

Private employment terminated due to religious beliefs. - U.S. Const., amend. 1 did not bar an action by an employee of a for-profit corporation who was terminated because of the employee's rejection of certain religious beliefs. Halverson v. Murzynski, 226 Ga. App. 276 , 487 S.E.2d 19 (1997).

Removal of board of directors of church was secular issue. - Trial court erred in entering summary judgment for the former board of directors of a church for want of jurisdiction as it could resolve the dispute between the church members and the church's former board of directors as to the removal of the former board of directors, under the Georgia Nonprofit Corporation Code, O.C.G.A. § 14-3-101 et seq., and as to the disposition of church property without considering ecclesiastical matters. Members of Calvary Missionary Baptist Church v. Jackson, 259 Ga. App. 647 , 578 S.E.2d 275 (2003).

2. State Actions Affecting Religion

Establishment clause of first amendment is applicable to state governments by virtue of the fourteenth amendment. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

Limitations on applicability to states. - The establishment clause only speaks to acts of the United States Congress, and, as applied to the states under the due process clause of the fourteenth amendment, it still is limited only to governmental action respecting an establishment of religion. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

Challenged state action must pass three-part test. - To pass muster under the establishment clause, the challenged state action must pass a three-part constitutional test: such action must have a secular as opposed to a religious purpose; the principal or primary effect of the state action must be one that neither advances nor inhibits religion; and, the challenged state action must not foster excessive government entanglement with religion. The third portion of the test actually raises two questions: it must not appear that the state is involved in the questioned action to an extent sufficient to justify the application of first amendment analysis; and the results of the action must not foster excessive entanglement between the state and religion. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

"Excessive entanglement" defined. - Excessive entanglement between state and religion for purposes of the establishment clause is defined as an impermissible merging or intermeddling of the proper spheres of religion and government. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

It is effect of state's acts which brings constitutional scrutiny to bear, not the manner of their implementation; state acts may be legislative, administrative, or judicial; so long as they use state resources in a manner offensive to the United States Constitution, federal courts may act. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

Religious accommodation provision of Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e(j), violates establishment clause of U.S. Const., amend. 1 where the true purpose of such provision was the advancement of religion, the provision's principal and primary effect was to directly benefit religions, and the enforcement of the provision would result in an impermissible entanglement of government with religion. Isaac v. Butler's Shoe Corp., 511 F. Supp. 108 (N.D. Ga. 1980).

There is no conflict between establishment and free exercise clause where a court strikes down the religious accommodation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(j), as unconstitutional because no free exercise problem arises, since no congressional action has taken place; the first amendment religious freedoms are not triggered by congressional inaction, but rather by the United States Congress' failure to adhere to the admonition that "Congress shall make no law". Isaac v. Butler's Shoe Corp., 511 F. Supp. 108 (N.D. Ga. 1980).

Standing to challenge government-sponsored religious statements. - City residents and taxpayers had standing to challenge the display of the city seal used both on city stationery and to emboss official documents, since a non-economic injury which results from a party's being subjected to unwelcome religious statements can support a standing claim. Saladin v. City of Milledgeville, 812 F.2d 687 (11th Cir. 1987).

Standing to sue under establishment clause. - Normally to have standing in order to bring a suit a party must allege that the challenged action has caused the party injury in fact, economic or otherwise, and the United States Supreme Court has limited citizen standing to bring suits challenging government action when plaintiffs have no interest in the suits other than that shared by all Americans; but, in the context of an establishment clause case, standing is more broadly permitted. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

For the ability to demonstrate Article III standing under the establishment clause, see American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

When establishment clause claim is raised, requirements for standing do not include proof that particular religious freedoms are infringed; rather, a spiritual stake in first amendment values will be sufficient to give standing to raise issues concerning the establishment clause. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

Standing of organization or association. - In order to have standing to sue under the establishment clause, a plaintiff that is not a natural person, such as an organization or an association, must have individual persons or members with a constitutionally protected interest that is being infringed upon. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on rehearing, 698 F.2d 1098 (11th Cir. 1983).

Standing adequately shown. - Where the individual plaintiffs in the instant case gave testimony on their concerns with the separation of church and state, this was sufficient to demonstrate standing to sue because they have alleged injury in fact to an interest protected by the establishment clause which each has a personal right to enforce. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff 'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

City residents and taxpayers had standing to challenge city's use of word "Christianity" on its official seal, since they unquestionably had a direct stake in the outcome of the litigation. Saladin v. City of Milledgeville, 628 F. Supp. 839 (M.D. Ga. 1986).

Roman Catholic priest's status as clergyman is sufficient to confer standing to sue under the establishment clause. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

Showing required by those seeking immunity from laws on religious grounds. - Those who seek immunity from requirements of law on religious grounds must, at the very least, demonstrate adherence to ethical standards and a spiritual discipline. McClure v. Salvation Army, 323 F. Supp. 1100 (N.D. Ga. 1971), aff'd, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

Religious groups not immune from property tax. - Religious groups do not enjoy a general immunity from the imposition of property taxes under U.S. Const., amend. 1. Leggett v. Macon Baptist Ass'n, 232 Ga. 27 , 205 S.E.2d 197 (1974).

Unorthodoxy will not serve to disqualify a religious group from tax exemption, as long as the group holds a sincere and meaningful belief in God occupying in the life of its possessors a place parallel to that occupied by God in traditional religions, and dedicates itself to the practice of that belief. Roberts v. Ravenwood Church of Wicca, 249 Ga. 348 , 292 S.E.2d 657 (1982).

Organizations affecting commerce may not escape the coverage of social legislation by showing that they were created for fraternal or religious purposes. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

Cult's claims dismissed. - Cult's claims against several denominations alleging spiritual fraud and financial extortion were dismissed as beyond the appropriate judicial exercise of constitutional powers in accordance with the first amendment's separation between church and state. U-John v. Composite Bible-Based Religious Body, 839 F. Supp. 861 (N.D. Ga. 1993).

Jurisdiction over church property dispute. - The first amendment did not prohibit appellate jurisdiction over an action by church members against a pastor and church seeking dissolution of the church, appointment of a receiver, an injunction against the defendant's disposing of corporate assets, and proper disposition of the assets since the dispute was capable of resolution by reference to neutral principles of law, i.e., applicable provisions of the Georgia Nonprofit Corporation Code, O.C.G.A. § 14-3-101 et seq., without infringing upon any first amendment values. Crocker v. Stevens, 210 Ga. App. 231 , 435 S.E.2d 690 (1993), cert. denied, 511 U.S. 1053, 114 S. Ct. 1613 , 128 L. Ed. 2 d 340 (1994).

Trial court was not prohibited by the first amendment from exercising judicial authority over competing claims of church groups for ownership of a certificate of deposit. Kidist Mariam Ethiopian Orthodox Tawahedo Church, Inc. v. Kidist Mariam Ethiopian Orthodox Tawahedo Church, Inc., 219 Ga. App. 470 , 465 S.E.2d 491 (1995).

Georgia trial court did not violate the principle of separation of church and state by exercising jurisdiction in a civil case brought by a church and the church's board of deacons against the pastor and others to have the pastor removed and to have the pastor relinquish control of the church's property because the trial court did not involve itself in ecclesiastical matters when it ordered that persons eligible to vote on whether to retain or discharge the pastor were limited to those in membership with the church under the church's existing bylaws. Further, because the petition in the case involved a dispute over the control of church property, it presented a civil matter over which the trial court had jurisdiction. Smith v. Mount Salem Missionary Baptist Church, 289 Ga. App. 578 , 657 S.E.2d 642 (2008).

Trial court's order that a church call for an annual meeting of its membership in accordance with the provisions of O.C.G.A. § 14-3-701 constituted an unconstitutional judicial interference in the government of the church. First Born Church of Living God, Inc. v. Hill, 267 Ga. 633 , 481 S.E.2d 221 (1997).

Dispute between parishioners and their bishop. - The first amendment barred the court from exercising judicial authority in a dispute between parishioners and their bishop concerning the bishop's order that icons and an iconscreen in the church be replaced because they were not compatible with the religious organization's practices and principles. Leopold v. St. Paul's Greek Orthodox Church, 235 Ga. App. 188 , 509 S.E.2d 121 (1998).

Presence of cross on state park land impermissibly enmeshes state and church by creating the appearance of official backing for Christianity. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on rehearing, 698 F.2d 1098 (11th Cir. 1983).

Use of religious grave markers in public cemetery permissible. - The erection and maintenance of religiously symbolic grave markers in a public graveyard in compliance with the religious sentiments of known descendants does not conflict with U.S. Const., amend. 1 or Ga. Const. 1983, Art. I, Sec. II, Para. VII. Birdine v. Moreland, 579 F. Supp. 412 (N.D. Ga. 1983).

Erection of statue of Jesus in public cemetery impermissible. - The proposed erection and maintenance of a statue of Jesus as a part of a public cemetery memorial has an impermissible religious purpose and, therefore, violates the establishment clause. Birdine v. Moreland, 579 F. Supp. 412 (N.D. Ga. 1983).

County courthouse display of the Ten Commandments. - Framed panel of the Ten Commandments and the Great Commandment displayed in a county courthouse violated the establishment clause, warranting court order requiring removal of panel unless remounted within a larger display of non-religious, historical items, to bring it within constitutional parameters. Harvey v. Cobb County, 811 F. Supp. 669 (N.D. Ga. 1993), aff'd, 15 F.3d 1097 (11th Cir.), cert. denied, 511 U.S. 1129, 114 S. Ct. 2138 , 128 L. Ed. 2 d 867 (1994).

Menorah allowed in public plaza. - Because the state would not contravene the dictates of the establishment clause by neutrally and nonpreferentially allowing a religious organization to display its menorah in a public plaza, the state's exclusion of the menorah was neither necessary, nor narrowly tailored to achieve a compelling state interest. Chabad-Lubavitch v. Miller, 5 F.3d 1383 (11th Cir. 1993).

Licensing of church-operated children's home. - A requirement that the Department of Human Resources license a church-operated children's home as a child caring institution pursuant to the Children and Youth Act and department regulations governing child caring institutions does not violate the free exercise clause of the first amendment, nor would it violate the establishment clause of the first amendment, since such a requirement in no way aids, furthers, or confers a special benefit on any religious group. Darrell Dorminey Children's Home v. Georgia Dep't of Human Resources, 260 Ga. 25 , 389 S.E.2d 211 (1990).

Appeal by state to single religious group in effort to promote tourism is in any case constitutionally questionable. American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 510 F. Supp. 886 (N.D. Ga. 1981), aff'd, 678 F.2d 1379 (11th Cir. 1982), aff'd on reh'g, 698 F.2d 1098 (11th Cir. 1983).

Jury's use of Christian Bible during sentencing phase after capital conviction. - No first amendment issue was presented when the court permitted the Christian Bible to go into the jury room at the request of the jurors apparently for consultation, although the possible use of the Bible by jurors cannot be reconciled with the eighth amendment's requirement that any decision to impose death must be the result of discretion which is carefully and narrowly channeled and circumscribed by the secular law of the jurisdiction. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

Violation of zoning ordinance by minister. - Zoning ordinance that allowed only single family residences in agricultural- residential areas did not violate a minister's right to free exercise of the minister's religion, where the minister rented a portion of the minister's home to a bankrupt family, and the minister was not acting on behalf of the minister's church by accepting rent. Lacey v. State, 270 Ga. 37 , 507 S.E.2d 441 (1998).

Right to control church property. - If the church government is hierarchical, then "neutral principles of law" are used to determine whether the local church or parent church has the right to control local property; "neutral principles" are state statutes, corporate charters, relevant deeds, and the organizational constitutions of the denomination. St. Mary of Egypt Orthodox Church, Inc. v. Townsend, 243 Ga. App. 188 , 532 S.E.2d 731 (2000).

Hierarchical religious organizations. - A hierarchical church is associated with other churches that share similar faith and doctrine and have a common ecclesiastical head and, as a matter of constitutional law, a hierarchical religious organization must be permitted to establish the rules and regulations by which it is governed. St. Mary of Egypt Orthodox Church, Inc. v. Townsend, 243 Ga. App. 188 , 532 S.E.2d 731 (2000).

3. Federal Actions Affecting Religion

IRS summons of religious organization members' records permissible. - An IRS summons to a bank requesting records relevant to the tax liability of an individual member of a religious organization did not violate U.S. Const., amend. 1, as the summons imposed no restriction on the religious organization's freedom to espouse doctrine or solicit support. United States v. Saunders, 621 F. Supp. 745 (N.D. Ga. 1985).

4. Clergy

Legislation regulating church administration violative of first amendment. - Legislation that regulates church administration, the operation of the churches, or the appointment of clergy, prohibits the free exercise of religion and violates U.S. Const., amend. 1. Regulation of the employment relationship between a minister and church by the state would result in an encroachment into an area of religious freedom which government is forbidden to enter and would violate the free exercise clause of the first amendment. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132 , 34 L. Ed. 2 d 153 (1972).

Matters involving clergy. - Civil court could not take jurisdiction of an ecclesiastical issue involving a clergyman's termination from the clergyman's capacity as minister of two mission churches, because U.S. Const., amend. 1 prohibits such action by the civil judicial system. McDonnell v. Episcopal Diocese, 191 Ga. App. 174 , 381 S.E.2d 126 , cert. denied, 493 U.S. 935, 110 S. Ct. 328 , 107 L. Ed. 2 d 318 (1989).

Superior court lacked jurisdiction to determine whether pastor was wrongfully terminated in violation of church's constitution and bylaws. Bledsoe v. Morningside Baptist Church, 232 Ga. App. 122 , 501 S.E.2d 292 (1998).

Courts of Georgia are prohibited from determining issues of expulsion of members, pastors, and the internal procedures of a religious entity. United Baptist Church, Inc. v. Holmes, 232 Ga. App. 253 , 500 S.E.2d 653 (1998).

Subject matter jurisdiction was lacking over plaintiff pastor's action alleging that the plaintiff's bishop transferred the plaintiff from one church to another without complying with church rules. Jay v. Christian Methodist Episcopal Church, 242 Ga. App. 833 , 531 S.E.2d 369 (2000).

5. Prisoners

Denial of a prisoner's petition for a name change for religious purposes did not violate the freedom of religion clause. In re Redding, 218 Ga. App. 376 , 461 S.E.2d 558 (1995).

Validity of prison regulations affecting religious and racial beliefs. - Arbitrary discrimination based upon the religious or racial beliefs of those concerned is constitutionally impermissible. But, rules and regulations are constitutionally valid when they are reasonable and justifiable in the administration of a large prison population, in light of the necessity to maintain prison discipline, and control any dangers and hazards presented. Bethea v. Daggett, 329 F. Supp. 796 (N.D. Ga. 1970), aff'd, 444 F.2d 112 (5th Cir. 1971).

Prisoner's right to exercise religion. - Under U.S. Const., amend. 1, a prisoner has the right to exercise the prisoner's religion, and refusal to permit a prisoner access to religious publications states a cause of action. Neal v. Georgia, 469 F.2d 446 (5th Cir. 1972).

Failure of prison authorities to provide Islamic meals minor infringement of religious freedom. - Failure of prison authorities to provide means strictly in compliance with Islamic dietary laws and to specially prepare foods under the strict instructions of their religious practice, where the prisoners were otherwise allowed substantial time to practice their religion, was a very minor inconvenience which impinged on the prisoner's full exercise of their religious preferences only in a very limited way. Elam v. Henderson, 472 F.2d 582 (5th Cir.), cert. denied, 414 U.S. 868, 94 S. Ct. 177 , 38 L. Ed. 2 d 117 (1973).

Prison grooming regulation. - Prison regulation, to the extent that it prohibited Sunni Muslim inmate at a maximum security prison from growing a beard in conformity with the inmate's religious beliefs, was not violative of the first amendment. Furqan v. Georgia State Bd. of Offender Rehabilitation, 554 F. Supp. 873 (N.D. Ga. 1982).

Prison visits by ministers. - Inmate's complaint that prison officials did not make reasonable arrangements for the visitation of ministers from the Nation of Islam Muslim sect stated a prima facie case for relief. Saleem v. Evans, 866 F.2d 1313 (11th Cir. 1989).

6. Schools and Education

Religious invocations at high school games. - Practice of having religious invocations delivered prior to public high school football games violates the establishment clause of the first amendment. Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir.), cert. denied, 490 U.S. 1090, 109 S. Ct. 2431 , 104 L. Ed. 2 d 988 (1989).

Announcement of "secular" activities sponsored by religious organizations. - A school district's policy and practice of announcing "secular" activities sponsored by religious organizations through the use of various schools' public address systems and bulletin boards creates excessive entanglement problems. Nartowicz v. Clayton County Sch. Dist., 736 F.2d 646 (11th Cir. 1984).

Use of school property by religious youth group. - A junior high school's practice of permitting a religious youth group to meet on school property under faculty supervision had the primary effect of advancing or promoting religion when the school district also supported religious assemblies, religious signs, and announcements of church-sponsored activities via bulletin boards and the public address system. Nartowicz v. Clayton County Sch. Dist., 736 F.2d 646 (11th Cir. 1984).

Georgia's Moment of Quiet Reflection in Schools Act is constitutional in its entirety, both facially and as applied and did not violate the establishment clause of the first amendment to the United States Constitution when the school principal announced over the intercom the quiet moment. Bown v. Gwinnett County Sch. Dist., 895 F. Supp. 1564 (N.D. Ga. 1995), aff'd, 112 F.3d 1464 (11th Cir. 1997).

The Georgia Moment of Quiet Reflection in Schools Act does not violate the establishment clause because it satisfies all three prongs of the Lemon test. The Act does not have the primary effect of advancing or inhibiting religion and does not create an excessive government entanglement with religion. Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464 (11th Cir. 1997).

Not subject to strict scrutiny standard of review. - Strict scrutiny review should not have been applied to plaintiff school board members' challenges under the First and Fourteenth Amendments to O.C.G.A. § 20-2-51(c)(2) because the statute's nepotism provision prohibited plaintiffs only from running for the school board in districts where certain family members were employed, but the statute did not otherwise impair plaintiffs' right to run for office or to vote; plaintiffs' injury was not so severe as to require strict scrutiny. Plaintiffs' claims that the statute was both too narrow and overbroad also failed; that the statute did not prevent nepotism in all its possible forms did not heighten the severity of the restriction to necessitate strict scrutiny. Grizzle v. Kemp, 634 F.3d 1314 (11th Cir. 2011).

A biology textbook which noted creationism was an explanation for the beginning of life in many cultures that could not be scientifically proved and that science could not resolve disputes about the origin of life did not sponsor religious actions or beliefs, so it did not violate the prohibition of a government establishment of religion, and it was unnecessary to analyze whether it: (1) had a secular purpose; (2) had a primary effect that advanced or inhibited religion; and (3) fostered excessive state entanglement with religion. Moeller v. Schrenko, 251 Ga. App. 151 , 554 S.E.2d 198 (2001).

Biology textbook which contained a neutral discussion of creationism did not impinge upon the free exercise of a student's religious beliefs. Moeller v. Schrenko, 251 Ga. App. 151 , 554 S.E.2d 198 (2001).

Freedom of Speech and Press

1. In General

Rights protected by first amendment. - Freedom of speech and of the press - which are protected by U.S. Const., amend. 1 from abridgment by Congress - are among the fundamental personal rights and liberties protected by the due process clause of the U.S. Const., amend. 14, from impairment by the states. Carr v. State, 176 Ga. 55 , 166 S.E. 827 (1932), later appeal, 176 Ga. 747 , 169 S.E. 201 (1933).

Statements can be without first amendment protection. Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970).

Freedoms of expression must be ringed about with adequate bulwarks. Anderson v. Dean, 354 F. Supp. 639 (N.D. Ga. 1973).

Purpose of amendment. - Purpose of U.S. Const., amend. 1 includes the need to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569 (1962).

Broad prohibitions prohibited. - Content-neutral restrictions on the exercise of first amendment rights in traditional public forums such as streets, are valid only when narrowly tailored to serve significant governmental interests and when the restrictions leave open ample alternative channels of communication. A broad prohibition of all picketing in all streets, alleys, roads, highways, and driveways predominantly dedicated to the use of vehicular traffic did not serve the city's interests in the narrow fashion demanded by the first amendment. United Food & Com. Workers Union Local 422 v. City of Valdosta, 861 F. Supp. 1570 (M.D. Ga. 1994).

Content neutral. - Principal inquiry in determining whether a legislative act is content-neutral is whether the government has adopted a regulation of speech because of disagreement with the message it conveys; the government's purpose is the controlling consideration. Thus, regulations that serve purposes unrelated to the content of expression are deemed neutral, even if they have an incidental effect on some speakers or messages but not others; an ordinance designed to combat the undesirable secondary effects of sexually explicit businesses is content-neutral. I.D.K., Inc. v. Ferdinand, 277 Ga. 548 , 592 S.E.2d 673 (2004).

Discussion and communication involving matters of public concern protected. - U.S. Const., amend. 1 grants constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous. Credit Bureau of Dalton, Inc. v. CBS News, 332 F. Supp. 1291 (N.D. Ga. 1971).

First amendment embraces publication, circulation and distribution of books and films. Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207 (N.D. Ga. 1981).

Gathering of news protected. - Freedom to publish news, without some protected ability to gather it, would render freedom of the press an unduly gossamer right. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

It is apparent that the first amendment right to publish must logically include to some degree a right to gather news fit for publication. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

Music as speech which incites imminent lawless activity. - Creators and disseminators of a song entitled "Suicide Solution" were protected by the first amendment after the parents of a teenage boy who committed suicide after repeatedly listening to the song were unable to demonstrate any manner in which the music could be categorized as speech which incited imminent lawless activity. Waller v. Osbourne, 763 F. Supp. 1144 (M.D. Ga. 1991), aff'd, 958 F.2d 1084 (11th Cir.), cert. denied, 506 U.S. 916, 113 S. Ct. 325 , 121 L. Ed. 2 d 245 (1992).

Access to information protected. - U.S. Const., amend. 1 protects the public and press from abridgment of their rights of access to information about the operation of their government. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

Access to information not available to public generally. - First amendment does not guarantee press constitutional right of special access to information not available to the public generally. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

Arbitrary interference with access to important information is abridgment of the freedoms of speech and press protected by U.S. Const., amend. 1. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

Highly protected status of even provocative speech. - A function of free speech under the system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech is protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Wilson v. Gooding, 303 F. Supp. 952 (N.D. Ga.), appeal dismissed, 396 U.S. 112, 90 S. Ct. 397 , 24 L. Ed. 2 d 306 (1969), aff'd, 431 F.2d 855 (5th Cir. 1970), 405 U.S. 518, 92 S. Ct. 1103 , 31 L. Ed. 2 d 408 (1972).

Narrow construction of statutes prohibiting speech. - To withstand constitutional attack, a statute or ordinance which prohibits speech must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. State v. Davis, 246 Ga. 761 , 272 S.E.2d 721 (1980).

One person's right to free speech must be balanced with another's right. - Freedom of speech or press does not mean that one can talk or distribute literature where, when, and how one chooses, but the right to do so must be adjusted to the rights of others. Durham v. State, 219 Ga. 830 , 136 S.E.2d 322 (1964).

Dissemination of individual's opinions on matters of public interest is an "unalienable right" that "governments are instituted among men to secure." The founders were not always convinced that unlimited discussion of public issues would be "for the benefit of all of us" but they firmly adhered to the proposition that the "true liberty of the press" permitted "every man to publish his opinion." Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975 , 18 L. Ed. 2 d 1094 (1967).

Freedom of expression by public officials. - Role that elected officials play in society makes it imperative that they be allowed freely to express themselves on matters of current public importance. Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569 (1962).

U.S. Const., amend. 1 in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. The central commitment of the first amendment is that debate on public issues should be uninhibited, robust, and wide-open. Bond v. Floyd, 385 U.S. 116, 87 S. Ct. 339 , 17 L. Ed. 2 d 235 (1966).

Proper construction of "speech" and "press". - When taken as it must be as a harmonious part of the entire Constitution, and in light of history, a construction is demanded that the first amendment, by the words "speech" and "press", means only speech and press outside of infringement of the rights of others. K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784 , 125 S.E.2d 207 (1962).

Guarantee of freedom from abridgment of rights by federal or state government. - Constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029 , 47 L. Ed. 2 d 196 (1976).

Rights protected from invasion by state action. - Freedom of speech and freedom of the press, which are protected by U.S. Const., amend. 1 from infringement by Congress, are among the fundamental personal rights and liberties which are protected by U.S. Const., amend. 14 from invasion by state action. Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666 , 82 L. Ed. 949 (1938); Staub v. City of Baxley, 355 U.S. 313, 78 S. Ct. 277 , 2 L. Ed. 2 d 302 (1958); Walter v. State, 131 Ga. App. 667 , 206 S.E.2d 662 , appeal dismissed, 233 Ga. 10 , 209 S.E.2d 605 (1974).

State burden on fundamental right requires strong justification. - When a state burdens the exercise of a fundamental right, its attempt to justify that burden as a rational means for the accomplishment of some significant state policy requires more than a bare assertion that the burden is connected to such a policy. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff 'd, 621 F.2d 141 (5th Cir. 1980).

Interference with rights by states and municipalities. - States and municipalities may no more interfere with the freedom of speech than may the national government. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Ultimate responsibility to define limits of state power regarding freedom of speech and expression rests with the Supreme Court. Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569 (1962).

Penalizing speech because of its nonspeech aspect. - Under U.S. Const., amend. 1 even activity which is itself communicative may nevertheless be penalized because of its nonspeech aspect. United States v. Southern Motor Carriers Rate Conference, Inc., 467 F. Supp. 471 (N.D. Ga. 1979), rev'd on other grounds, 471 U.S. 48, 105 S. Ct. 1721 , 85 L. Ed. 2 d 36 (1984).

Speech advocating use of force or violation of law. - Constitutional guarantees of free speech and press do not permit state to forbid or proscribe advocacy of use of force or of law violation except where such advocacy is directed to inciting or producing lawless action and is likely to incite or produce such action. However, the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action. Wilson v. Gooding, 303 F. Supp. 952 (N.D. Ga.), appeal dismissed, 396 U.S. 112, 90 S. Ct. 397 , 24 L. Ed. 2 d 306 (1969), aff'd, 431 F.2d 855 (5th Cir. 1970), 405 U.S. 518, 92 S. Ct. 1103 , 31 L. Ed. 2 d 408 (1972).

Speech causing clear and present danger. - In order for state to proscribe printed material, it must foment imminent lawless conduct, and the threat from such incitement must be seen as posing a clear and present danger. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff'd, 621 F.2d 141 (5th Cir. 1980).

Talk of clear and present danger arising out of criticism is idle unless the criticism makes it impossible in a very real sense for a court to carry on the administration of justice. Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569 (1962).

Curbing speech provoking others to action. - Since speech is normally intended to change the opinions or reinforce the opinions of others, problems arise as to the extent to which mere speech may be curbed when it provokes others into action. A speaker sometimes passes the bounds of arguments and persuasion and undertakes incitement to riot. Wilson v. Gooding, 303 F. Supp. 952 (N.D. Ga.), appeal dismissed, 396 U.S. 112, 90 S. Ct. 397 , 24 L. Ed. 2 d 306 (1969), aff'd, 431 F.2d 855 (5th Cir. 1970), 405 U.S. 518, 92 S. Ct. 1103 , 31 L. Ed. 2 d 408 (1972).

Aberrant, unpopular, and revolutionary speech protected. - The expanse of U.S. Const., amend. 1 by necessity includes speech which is aberrant, unpopular, and even revolutionary. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff 'd, 621 F.2d 141 (5th Cir. 1980).

Speech drawing adverse reaction from majority protected. - Speech cannot be stifled by the state merely because it might draw an adverse reaction from a majority of the people. Reineke v. Cobb County Sch. Dist., 484 F. Supp. 1252 (N.D. Ga. 1980).

Speech advocating illegal action in future. - Material merely advocating illegal action at some future time may not be criminally proscribed by the state. Printed matter either assailing the state's controlled substances laws or extolling the attractions of certain unlawful substances and glorifying the drug culture may not be generally restricted. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff 'd, 621 F.2d 141 (5th Cir. 1980).

Freedom of speech does not always prevail over property rights. Property rights do not always prevail over the right of free speech. Griffin v. Trustees of Atlanta Univ., 225 Ga. 859 , 171 S.E.2d 618 (1969).

Ordinary forms of taxation not violative of freedom of press. - Businesses which exercise freedom of press are not thereby immune from ordinary forms of taxation. Airport Bookstore, Inc. v. Jackson, 242 Ga. 214 , 248 S.E.2d 623 (1978), cert. denied, 441 U.S. 952, 99 S. Ct. 2182 , 60 L. Ed. 2 d 1057 (1979).

Private property becomes subject to protest or propaganda activity when both of the following are satisfied: (a) the protest is related to the use to which the property is put; and (b) there exists no reasonably effective alternative means of communication to reach the intended audience. Hudgens v. NLRB, 501 F.2d 161 (5th Cir. 1974), vacated on other grounds, 424 U.S. 507, 96 S. Ct. 1029 , 47 L. Ed. 2 d 196 (1976).

Public forum for expression must be available to all members of the public for the exercise of rights under U.S. Const., amend. 1. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Protection accorded ideas disapproved by some in area where advanced. - Under the constitutionally protected right of freedom of speech, an organization cannot be penalized for disseminating ideas which are not opposed to our system of government, even though such ideas may not meet with the approval of all of the people in the area in which they are advanced. Williamson v. Southern Regional Council, Inc., 223 Ga. 179 , 154 S.E.2d 21 (1967).

Purpose of liberty of press. - Liberty of the press was intended to prevent all previous restraints upon publications as had been practiced by other governments in early times to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but a person who used it was to be responsible in case of its abuse. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660 , 45 L. Ed. 2 d 696 (1975).

Liberty of press must be responsibly exercised. - Guarantees of freedom of speech and press are not designed to prevent censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975 , 18 L. Ed. 2 d 1094 (1967).

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free person has an undoubted right to lay what sentiments that person pleases before the public; to forbid this, is to destroy the freedom of the press; but if the person publishes what is improper, mischievous, or illegal, the person must take the consequence of the person's own temerity. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660 , 45 L. Ed. 2 d 696 (1975).

Pamphlets and leaflets protected. - The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666 , 82 L. Ed. 949 (1938).

Access by press to news. - Inherent in the right of freedom of the press is a limited right of reasonable access to certain kinds of news. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

The right of access of the news media representatives is no greater and no less than any other member of the general public. R.W. Page Corp. v. Lumpkin, 249 Ga. 576 , 292 S.E.2d 815 (1982).

News station with standing to object to gag order. - Two television stations had standing to challenge the modified gag order, notwithstanding that the order did not restrain the stations directly, because the First Amendment offered some protection to news gathering by journalists; federal courts had held in a number of cases that a news organization might have standing to challenge a restraint upon the speech of another when that restraint impaired the organization's own ability to effectively engage in news gathering; and neither the accused nor the state disputed that some persons to whom the modified gag order applied otherwise would be willing to speak with reporters. WXIA-TV v. State of Ga., 303 Ga. 428 , 811 S.E.2d 378 (2018).

Access to information concerning government activities. - Rights guaranteed and protected by the first amendment include the right of access to news or information concerning the operations and activities of government. This right is held by both the general public and the press, with the press acting as a representative or agent of the public as well as on its own behalf. Without such a right, the goals and purposes of the first amendment would be meaningless. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

Qualified right of access to information concerning government activities. - The right of access to news and information concerning activities of government is qualified, rather than absolute, and is subject to limiting considerations such as confidentiality, security, orderly process, spatial limitation, and doubtless many others. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

The first amendment's protection of a citizen's right to obtain information concerning "the way the country is being run" does not extend to every conceivable avenue a citizen may wish to employ in pursuing this right. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

There does exist a limited right of the public and the press, under the first amendment, to access to information concerning governmental activities. CNN, Inc. v. ABC, 518 F. Supp. 1238 (N.D. Ga. 1981).

Material printed by law publisher rating attorneys is protected by the first amendment. Bergen v. Martindale-Hubbell, Inc., 248 Ga. 599 , 285 S.E.2d 6 (1981).

Live theatre protected by U.S. Const., amend. 1. - Live theatrical productions, no less than novels or motion pictures, are media and organs for the expression of public opinion and the propagation of ideas and critical comments and are entitled to first amendment protection. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Theatrical productions are "speech" protected by U.S. Const., amend. 1. A musical play is a unitary form of constitutionally protected expression, and may not be separated into speech and nonspeech components. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Motion pictures protected. - Motion pictures are within the basic protection of U.S. Const., amends. 1 and 14, and are afforded the full protection constitutionally guaranteed to all speech or press. K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784 , 125 S.E.2d 207 (1962).

Expression by means of motion pictures included within free speech and press guaranty of U.S. Const., amends. 1 and 14. Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969).

Outdoor Advertising Control Act of 1971, O.C.G.A. § 32-6-70 , does not violate right of freedom of expression by restricting outdoor advertising in areas adjacent to the rights-of-way of interstate and primary systems of highways in this state. Department of Transp. v. Shiflett, 251 Ga. 873 , 310 S.E.2d 509 (1984).

O.C.G.A. §§ 50-16-14 and 50-16-16 , allowing removal of persons who cause disruptions in state buildings, do not violate the first amendment guarantees of freedom of speech, the right to assemble peaceably, and petition the government for redress of their grievances. State v. Storey, 181 Ga. App. 161 , 351 S.E.2d 502 (1986), cert. denied, 481 U.S. 1017, 107 S. Ct. 1895 , 95 L. Ed. 2 d 501 (1987).

Ordinance unconstitutional absent reasonable relationship between restraints imposed and public welfare. - Where there is no reasonable relationship between the restraints imposed on freedom of speech and the general welfare of the community, the ordinance is unconstitutional. Wolfe v. City of Albany, 104 Ga. App. 264 , 121 S.E.2d 331 (1961).

Burning of American flag. - Former Code 1933, § 26-2803, which prohibited misuse of the national flag, was unconstitutional as applied to an individual who burned a flag during a public demonstration protesting the United States' involvement in Iranian affairs since there was no likelihood of imminent public unrest. Monroe v. State Court, 739 F.2d 568 (11th Cir. 1984).

Display of the Georgia state flag did not violate African-American citizen's constitutional rights to equal protection and freedom of expression. Coleman v. Miller, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199 , 140 L. Ed. 2 d 328 (1998).

Withholding of promotion by state as sanction for free speech. - For state to withhold expected promotion or pay raise as a sanction for the exercise of the right to free speech is a restriction of that right in violation of U.S. Const., amends. 1 and 14. Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605 , 234 S.E.2d 165 (1977).

Claim on behalf of "talking cat" not entertained. - The Eleventh Circuit Court of Appeals will not hear a claim that a "talking cat's" right to free speech has been infringed by a business license ordinance since, although the talking cat arguably possesses a very unusual ability, a talking cat cannot be considered a "person" and is therefore not protected by the Bill of Rights, and even if the talking cat has such a right, there is no need for the cat's owners to assert the right jus tertii. A talking cat can clearly speak for on their own. Miles v. City Council, 710 F.2d 1542 (11th Cir. 1983).

Limiting hospital nurse's access to patients not unconstitutional. - Hospital which limited a nurse-midwife's access to certain patients had a primary interest in the safety and health of its patients which outweighed the nurse's right to speak freely on the issue of natural birth, and such limitation therefore did not offend the first amendment. Sweeney v. Athens Regional Medical Ctr., 705 F. Supp. 1556 (M.D. Ga. 1989).

Access to public places. - Streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of first amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely. Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029 , 47 L. Ed. 2 d 196 (1976).

No total ban on parades in residential areas. - Cities may place reasonable restrictions on the right to parade in residential areas, but the activity may not be banned in toto. United Food & Com. Workers Union Local 422 v. City of Valdosta, 861 F. Supp. 1570 (M.D. Ga. 1994).

Notice of class action on defendant's property. - Notice of a class action against airlines could be published in in-flight magazines that were carried on defendants' airplanes and posted in defendants' ticket offices without offending the first amendment. In re Domestic Air Transp. Antitrust Litig., 141 F.R.D. 534 (N.D. Ga. 1992).

City buses as public forum. - First amendment rights are not surrendered when one rides on or looks at a city bus. Buses operated daily by the city for the transportation of the public - like the city streets, city sidewalks, city auditorium, city coliseum, and city parks - are appropriate places and facilities for the exercise of first amendment rights. Stoner v. Thompson, 377 F. Supp. 585 (M.D. Ga. 1974).

Demonstration on sidewalk opposite courthouse. - Civil rights demonstration on sidewalk opposite courthouse is "speech plus," and is entitled to a lesser degree of protection than pure speech. United States v. Southern Motor Carriers Rate Conference, Inc., 467 F. Supp. 471 (N.D. Ga. 1979), rev'd on other grounds, 471 U.S. 48, 105 S. Ct. 1721 , 85 L. Ed. 2 d 36 (1984).

Military base is ordinarily not a public forum for first amendment purposes. M.N.C. of Hinesville, Inc. v. United States Dep't of Defense, 791 F.2d 1466 (11th Cir. 1986).

Air Force regulation prohibiting certain bumper stickers. - Air Force regulation prohibiting bumper stickers which embarrass or disparage the Commander in Chief was viewpoint neutral, and was reasonable since the military has an interest in promoting order and discipline and only prohibited display of disparaging bumper stickers on base. Ethredge v. Hail, 795 F. Supp. 1152 (M.D. Ga. 1992), order vacated and appeal dismissed, 996 F.2d 1173 (11th Cir. 1993), aff'd, 56 F.3d 1324 (11th Cir. 1995).

Seizure of materials. - When materials are seized in violation of U.S. Const., amend. 1, the appropriate remedy is the return of the seized property, but not its suppression as evidence at trial. United States v. Bush, 582 F.2d 1016 (5th Cir. 1978).

Seizure properly anchored in probable cause can offend constitutional constraints when media of expression, such as movie films, are implicated. Presumptive free speech materials are qualitatively different from other kinds of alleged contraband. United States v. Bush, 582 F.2d 1016 (5th Cir. 1978).

Publication of information in court records. - States may not impose sanctions on publication of truthful information contained in official court records open to public inspection. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029 , 43 L. Ed. 2 d 328 (1975).

Publication of information in court records. - The press may not be exposed to liability for truthfully publishing information released to the public in official court records. Munoz v. American Lawyer Media, 236 Ga. App. 462 , 512 S.E.2d 347 (1999).

State Bar Rules. - An argument that State Bar Rules 4-102 (Standard 4), 4-202, 4-203(a)(2), 4-221(d) and 4-225(d) were unconstitutional because they violated the due process and equal protection clauses of the fourteenth amendment and because they impinged upon the first amendment right of free speech and redress was meritless. Cohran v. State Bar, 790 F. Supp. 1568 (N.D. Ga. 1992).

Advisory decision on validity of statute attacked on first amendment ground not to be rendered. - Where a plaintiff contends that a local ordinance is unconstitutional by first amendment standards as denying the plaintiff's freedom of expression by preventing the plaintiff from performing a particular dance, and such dance may also be prohibited by a general statute, but no attack is made on the general statute, and the dance has not been performed, a decision as to the validity of the ordinance would be abstract or advisory only by its very nature, and it is proper to dismiss the plaintiff's complaint. Jenkins v. Thomas, 124 Ga. App. 286 , 183 S.E.2d 489 (1971).

Requirement of prior adversary hearing is not warranted to protect first amendment rights where, inter alia, a speedy trial is available in state court. Penthouse Int'l, Ltd. v. McAuliffe, 454 F. Supp. 289 (N.D. Ga. 1978).

Standing. - Rules of standing have been expanded in the area of first amendment rights and special considerations are granted to litigants seeking to preserve rights of free expression. American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981).

It is not necessary that a party first expose oneself to actual arrest or prosecution to be entitled to challenge a statute that the person claims deters the exercise of the person's constitutional rights. American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981).

Protection of Anti-SLAPP statute. - Anti-Strategic Lawsuits Against Public Participation statute, O.C.G.A. § 9-11-11.1(b) and (c), provides protection for acts that can reasonably be construed as acts in furtherance of one's right of free speech or right to petition the government for redress of grievances in connection with an issue of public concern; such acts include any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or such a statement or petition made in connection with an issue under consideration or review by such a governmental body, even including those that initiate a proceeding to address matters of public concern. Harkins v. Atlanta Humane Soc'y, 264 Ga. App. 356 , 590 S.E.2d 737 (2003).

Right to fair trial versus rights of public to gain access to hearings in criminal cases. - See R.W. Page Corp. v. Lumpkin, 249 Ga. 576 , 292 S.E.2d 815 (1982).

Punishment for contempt not proper means to expose errors in expression. - People are entitled to speak as they please on matters vital to them; errors in judgment, or unsubstantiated opinions may be exposed, but not through punishment for contempt for the expression. Under the system of government, counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech and assembly. Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569 (1962).

Contempt order based on true newspaper articles fatally defective. - Rule for contempt issued by superior court judge, based on a series of newspaper articles, is fatally defective where the publications complained of were true, they related to a matter in another court and in nowise referred to the court issuing the rule and where they could not have obstructed or impaired the administration of justice in the court. McGill v. State, 209 Ga. 500 , 74 S.E.2d 78 (1953).

Injunction restricting activities of abortion protesters. - Injunction issued pursuant to a city ordinance declaring the actions of abortion protesters to be a public nuisance was not unconstitutional since the protesters were permitted to exercise their right of free speech by engaging in social protest, limited only by reasonable time, place, and manner restrictions. Hirsh v. City of Atlanta, 261 Ga. 22 , 401 S.E.2d 530 , cert. denied, 501 U.S. 1221, 111 S. Ct. 2836 , 115 L. Ed. 2 d 1004 (1991).

Motorcycle helmet law. - The motorcycle helmet law, O.C.G.A. § 40-6-315 , does not require that the Georgia Board of Public Safety issue a list approving specific types of headgear and, therefore, the failure of the board to publish a list of approved headgear and eye-protective devices did not violate the plaintiff's rights under the first, fifth, and fourteenth amendments to the United States Constitution. ABATE of Ga., Inc. v. Georgia, 264 F.3d 1315 (11th Cir. 2001), cert. denied, 536 U.S. 924, 122 S. Ct. 2592 , 153 L. Ed. 2 d 781 (2002).

Assisted suicide. - O.C.G.A. § 16-5-5(b) is unconstitutional under the free speech provisions of the United States and Georgia Constitutions, U.S. Const., amend. I and Ga. Const. 1983, Art. I, Sec. I, Para. V, because it is not all assisted suicides that are criminalized but only those that include a public advertisement or offer to assist; because the state failed to provide any explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity was sufficiently problematic to justify an intrusion on protected speech rights, it could not, consistent with the United States and Georgia Constitutions, make the public advertisement or offer to assist in a suicide a criminal offense. Final Exit Network, Inc. v. State, 290 Ga. 508 , 722 S.E.2d 722 (2012).

2. Limitations

Freedom of speech and press not absolute. - It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Carr v. State, 176 Ga. 55 , 166 S.E. 827 (1932), later appeal, 176 Ga. 747 , 169 S.E. 201 (1933).

The right of free speech is not an unlimited right. It entitles an individual to advocate certain ideas regardless of their popularity, but it does not extend to the threatening of terror, inciting of riots, or placing another's life or property in danger. Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970).

All speech is not ultimately protected under U.S. Const., amend. 1. State v. Davis, 246 Ga. 761 , 272 S.E.2d 721 (1980).

State may punish those abusing freedom of speech and press. - That a state in the exercise of its police power may punish those who abuse the freedom of speech and press by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. Carr v. State, 176 Ga. 55 , 166 S.E. 827 (1932), later appeal, 176 Ga. 747 , 169 S.E. 201 (1933).

Speech advocating overthrow of government by unlawful means prohibited. - A state may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several states, by violence or other unlawful means. Carr v. State, 176 Ga. 55 , 166 S.E. 827 (1932), later appeal, 176 Ga. 747 , 169 S.E. 201 (1933).

Freedom of speech and press does not protect disturbances to public peace or the attempt to subvert the government. It does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties. Carr v. State, 176 Ga. 55 , 166 S.E. 827 (1932), later appeal, 176 Ga. 747 , 169 S.E. 201 (1933).

Freedom of speech and press does not protect publications prompting the overthrow of government by force, the punishment of those who publish articles which tend to destroy organized society being essential to the security of freedom and the stability of the state. Carr v. State, 176 Ga. 55 , 166 S.E. 827 (1932), later appeal, 176 Ga. 747 , 169 S.E. 201 (1933).

Question in every case is whether words used are used in such circumstances and of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Speech which advocates a violation of the law is protected except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. State v. Davis, 246 Ga. 761 , 272 S.E.2d 721 (1980).

"Fighting words" not protected speech. - "Fighting words" constitute one of those narrow speech areas not constitutionally protected. State v. Klinakis, 206 Ga. App. 318 , 425 S.E.2d 665 (1992).

Whether words are "fighting" words to be decided by jury. - Whether certain words were "fighting" words, tending to provoke violence, was a question of fact to be decided by the jury, not a question of law to be decided by the court. Wilson v. Attaway, 757 F.2d 1227 (11th Cir. 1985).

Violent threats unprotected. - The communication of terroristic threats to another person to commit a crime of violence upon that person clearly falls outside of those communications and expressions which are protected by U.S. Const., amend. 1. Lanthrip v. State, 235 Ga. 10 , 218 S.E.2d 771 (1975).

Certain utterances not within purview of first amendment. - Utterances which are not an essential part of any exposition of idea or which are not in any proper sense communication of information or opinion are not within the purview of U.S. Const., amend. 1. United States v. Irving, 509 F.2d 1325 (5th Cir.), cert. denied, 423 U.S. 931, 96 S. Ct. 281 , 46 L. Ed. 2 d 259 (1975).

Extortionate speech has no constitutional protection. United States v. Quinn, 514 F.2d 1250 (5th Cir. 1975), cert. denied, 424 U.S. 955, 96 S. Ct. 1430 , 47 L. Ed. 2 d 361 (1976).

Exceptions to free speech rights. - Recognized exceptions to constitutionally guaranteed speech include obscene material, fighting words, defamation, intolerable invasions of privacy, disruptions of the classroom, incitement to imminent lawless activity, and solicitation of illegal activity. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff 'd, 621 F.2d 141 (5th Cir. 1980).

There are various defined categories of speech or communicative conduct which are not entitled to constitutional protection. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Walt Disney Prods., Inc. v. Shannon, 247 Ga. 402 , 276 S.E.2d 580 (1981).

O.C.G.A. § 15-19-51(a)(7) did not limit defendant's right to free speech under U.S. Const., amend. 1 or Ga. Const. 1983, Art. I, Sec. 1, Para. V, as defendant had no right to engage in speech which was calculated to deceive or mislead people into thinking that the defendant was qualified to practice law. Marks v. State, 280 Ga. 70 , 623 S.E.2d 504 (2005).

Prohibiting clear and present danger speech. - Utterance can be suppressed or penalized on ground that it tends to incite immediate breach of peace, if the words used are such in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Walt Disney Prods., Inc. v. Shannon, 247 Ga. 402 , 276 S.E.2d 580 (1981).

The utterance is not protected if it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Walt Disney Prods., Inc. v. Shannon, 247 Ga. 402 , 276 S.E.2d 580 (1981).

Justifiable limitations on speech when combined with regulated "nonspeech". - When "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on first amendment freedoms. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

No one would have the hardihood to suggest that freedom of speech sanctions are an incitement to riot. There might exist special, limited circumstances in which speech is so interlaced with burgeoning violence that it is not protected by the broad guarantee of U.S. Const., amend. 1. Sumbry v. Land, 127 Ga. App. 786 , 195 S.E.2d 228 (1972), cert. denied, 414 U.S. 1079, 94 S. Ct. 598 , 38 L. Ed. 2 d 486 (1973).

Unprotected types of speech. - There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include lewd and obscene, the profane, the libelous, and the insulting or "fighting" words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Atlanta Coop. News Project v. United States Postal Serv., 350 F. Supp. 234 (N.D. Ga. 1972).

Motion pictures not entitled to protection afforded press. - Motion pictures are not to be regarded as a part of the press of the country or organs of public opinion and as such entitled to the protection afforded the press. RD-DR Corp. v. Smith, 89 F. Supp. 596 (N.D. Ga. 1950), aff'd, 183 F.2d 562 (5th Cir.), cert. denied, 340 U.S. 853, 1 S. Ct. 80 , 95 L. Ed. 625 (1950).

Motion pictures not to be regarded as part of press. - The exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded as part of the press of the country, or as organs of public opinion. Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969).

Contemptuous statements not protected. - Statements made in the presence of the court or outside of the presence of the court are protected by the guarantee of freedom of speech of the U.S. Const., amends. 1 and 14 and by the Georgia Constitution 1983, Art. I, Sec. I, Para. V, while contemptuous statements are not so protected. A statement is contemptuous and therefore not constitutionally protected when it poses a present danger to the orderly administration of justice but neither an inherent nor a reasonable tendency to do so is enough to justify a restriction of free expression. Garland v. State, 253 Ga. 789 , 325 S.E.2d 131 (1985).

Free speech limitations at trial. - Limitations on free speech assume different proportion when expression is directed toward trial as compared to grand jury investigation. Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569 (1962).

Publisher of newspaper has no special immunity from the application of general laws. A publisher has no special privilege to invade the rights and liberties of others. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975 , 18 L. Ed. 2 d 1094 (1967).

Acts of nonstudents on campus enjoined as trespass and nuisance. - Acts of nonstudents on the grounds of a private university performed in observance of a vigil in memory of a well-known public figure were enjoined where such acts constituted trespass and nuisance. Griffin v. Trustees of Atlanta Univ., 225 Ga. 859 , 171 S.E.2d 618 (1969).

Hair style may be distinguished from other forms of expression in that it is not a direct, primary right under U.S. Const., amend. 1. Even where the wearing of long hair is assumed to be symbolic expression, it falls within that type of expression which is manifested through conduct and is therefore subject to reasonable state regulation in furtherance of a legitimate state interest. Stevenson v. Wheeler County Bd. of Educ., 306 F. Supp. 97 (S.D. Ga. 1969), aff'd, 426 F.2d 1154 (5th Cir.), cert. denied, 400 U.S. 957, 91 S. Ct. 355 , 27 L. Ed. 2 d 265 (1970).

Hair length is not an absolute first amendment right. Howell v. Wolf, 331 F. Supp. 1342 (N.D. Ga. 1971).

Right to wear one's hair as one sees fit has not been found to be within the periphery of any of our specific constitutional rights. There is no constitutionally protected right - plainly expressed or within the penumbra, the shadow, of the U.S. Const., amends. 1, 8, 9, 10 or 14 - to wear one's hair in a public high school in the length and style that suits the wearer. Ashley v. City of Macon, 377 F. Supp. 540 (M.D. Ga. 1974), aff'd, 505 F.2d 868 (5th Cir. 1975).

People cannot claim to hold an unearned degree. - First amendment rights are not violated by the state's refusal to allow a person to hold oneself out to the public under a degree which the person has not earned. Oliver v. Morton, 361 F. Supp. 1262 (N.D. Ga. 1973).

Prohibiting unlawful picketing. - State may prohibit picketing directed at achieving a union shop in violation of state law. United States v. Southern Motor Carriers Rate Conference, Inc., 467 F. Supp. 471 (N.D. Ga. 1979), rev'd on other grounds, 471 U.S. 48, 105 S. Ct. 1721 , 85 L. Ed. 2 d 36 (1984).

Draft card burning is conduct not protected by U.S. Const., amend. 1. United States v. Southern Motor Carriers Rate Conference, Inc., 467 F. Supp. 471 (N.D. Ga. 1979), rev'd on other grounds, 471 U.S. 48, 105 S. Ct. 1721 , 85 L. Ed. 2 d 36 (1984).

State subdivision can constitutionally restrict facial hair of its male police officers because of its strong interest in having law enforcement personnel present a uniform appearance to the public. Nalley v. Douglas County, 498 F. Supp. 1228 (N.D. Ga. 1980).

Neither criminal nor civil law may be used to restrict free speech. - For purposes of U.S. Const., amend. 1, whether an utterance is suppressed under criminal law or penalized under tort law makes no difference. What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. Walt Disney Prods., Inc. v. Shannon, 247 Ga. 402 , 276 S.E.2d 580 (1981).

Uttered invitation to child did not present clear and present danger of injury. - Under first amendment jurisprudence, the adult should not be subjected to liability solely on the ground that statements uttered by the adult constituted an invitation to a child to do something causing the child injury, unless what the adult invited the child to do presented a clear and present danger that injury would in fact result. Although what the defendants allegedly invited the child to do during the course of a television broadcast posed a foreseeable risk of injury, it did not pose a clear and present danger of injury. Walt Disney Prods., Inc. v. Shannon, 247 Ga. 402 , 276 S.E.2d 580 (1981).

There is no absolute first amendment right to inspect judicial records. Instead, the media's access to judicial materials rests on a common-law right to inspect and copy judicial records. United States v. Eaves, 685 F. Supp. 1243 (N.D. Ga. 1988).

Ante litem notice not protected. - Plaintiff's ante litem notice under O.C.G.A. § 36-33-5 against the city did not constitute speech protected by U.S. Const., amend. 1. Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997).

3. Regulatory Powers

Ordinance prohibiting disorderly conduct. - City ordinances prohibiting disorderly conduct in the city have no connection whatever with infringement of the constitutional rights in U.S. Const., amend. 1. Bennett v. City of Dalton, 69 Ga. App. 438 , 25 S.E.2d 726 , appeal dismissed, 320 U.S. 712, 64 S. Ct. 197 , 88 L. Ed. 418 (1943).

Ordinance prohibiting loud speakers from vehicles valid. - An ordinance forbidding the operation upon the public streets, alleys, or thoroughfares by any person, firm, or corporation of a loud speaker or public address system from any vehicle is not an infringement upon the rights of the defendant granted to the defendant by the provisions of the Constitution of the State of Georgia or of the United States. The thoroughfares of cities are maintained by the public and to say that anyone has a constitutional right to use, on these streets, a loud speaker or public address system from any vehicle seems to overlap and interfere with the constitutional rights of other people. It makes no difference whether the violator is using the loud speaker to broadcast what the violater terms recorded sermons or using the loudspeaker for vending goods or promoting some political candidate or for some other purpose. Brinkman v. City of Gainesville, 83 Ga. App. 508 , 64 S.E.2d 344 (1951).

Ordinance requiring license for soliciting labor union members invalid. - Ordinance of City of Baxley shows on its face that it is repugnant to and violative of the first and fourteenth amendments to the Constitution of the United States in that it places a condition precedent upon, and otherwise unlawfully restricts, the defendant's freedom of speech as well as freedom of the press and freedom of lawful assembly by requiring, as conditions precedent to the exercise of those rights, the issuance of a license which the mayor and city council are authorized by the ordinance to grant or refuse in their discretion, and the payment of a license fee which is discriminatory and unreasonable in amount and constitutes a prohibitory flat tax upon the privilege of soliciting persons to join a labor union. Staub v. City of Baxley, 97 Ga. App. 221 , 102 S.E.2d 643 (1958).

Licensing fees. - Governments may enact ordinances for legitimate purposes requiring those who would exercise their freedom of speech to obtain a license in advance; fees intended for the purpose of reimbursement of the costs of administering a licensing scheme that impacts businesses exercising their first amendment rights have been held by the U.S. Supreme Court to withstand constitutional muster. I.D.K., Inc. v. Ferdinand, 277 Ga. 548 , 592 S.E.2d 673 (2004).

Placement of portable signs. - The portion of a county ordinance that required portable signs to be set back from the building setback line did not further the county's substantial governmental interests in either traffic safety or aesthetics and was, accordingly, unconstitutional. Dills v. Cobb County, 593 F. Supp. 170 (N.D. Ga. 1984), aff'd, 755 F.2d 1473 (11th Cir. 1985).

Olympic Sign Ordinance. - The Olympic Sign Ordinance, which creates a five-member committee charged with recommending "Concentrated Sign Districts" within the City of Atlanta and empowers the committee to grant permits to those desiring to erect signs pursuant to that ordinance and which permits only those signs which in some way promote an Olympic-related event, is unconstitutional in that it violates the first and fourteenth amendments of the U.S. Constitution. Outdoor Sys. v. City of Atlanta, 885 F. Supp. 1572 (N.D. Ga. 1995).

1994 Sign Ordinance. - The 1994 Sign Ordinance, a comprehensive regulatory framework for the posting of all signs within the City of Atlanta, does not violate equal protection or free speech guarantees. Outdoor Sys. v. City of Atlanta, 885 F. Supp. 1572 (N.D. Ga. 1995).

County ordinance's ban of off-premise, commercial billboards was an unconstitutional restraint on commercial speech, in the absence of any evidence that county officials considered esthetics and traffic safety before adopting the ordinance. Adams Outdoor Adv. of Atlanta, Inc. v. Fulton County, 738 F. Supp. 1431 (N.D. Ga. 1990).

Ban of off-premises signs in historic district. - Ordinance prohibiting off-premises signs in the city's historic district and in various specific locations was viewpoint neutral and did not favor commercial over non-commercial speech. Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992), cert. denied, 508 U.S. 930, 113 S. Ct. 2395 , 124 L. Ed. 2 d 296 (1993).

The government's interest in the aesthetics of a designated historic district were sufficiently significant to override the first amendment rights of a property owner to off-premise noncommercial signs. Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992), cert. denied, 508 U.S. 930, 113 S. Ct. 2395 , 124 L. Ed. 2 d 296 (1993).

Exemptions from ordinance permitting process. - System of exemptions from the sign-permitting process did not violate the first amendment since the ordinance exempted from permitting requirements and permit fees and not from a general ban of all off-premise billboards; and since the exemptions did not favor commercial over noncommercial messages or express a preference between different noncommercial messages. Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992), cert. denied, 508 U.S. 930, 113 S. Ct. 2395 , 124 L. Ed. 2 d 296 (1993).

Ordinance limiting the maximum number of portable display signs that can be issued to a business to one temporary permit for every six months, the permit to last for a maximum of 16 days, was constitutional. Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992), cert. denied, 508 U.S. 930, 113 S. Ct. 2395 , 124 L. Ed. 2 d 296 (1993).

Discretion to vary parade fees. - The free speech guarantees of the first and fourteenth amendments are violated by an assembly and parade ordinance that permits a government administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order since the decision how much to charge for police protection or administrative time - or even whether to charge at all - is left to the whim of the administrator, without any articulated standards either in the ordinance or in the county's established practice, and because the fee will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content. Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395 , 120 L. Ed. 2 d 101 (1992).

Neither the $1,000 cap on the fee charged, nor even some lower nominal cap, can save an unconstitutional assembly and parade ordinance because the level of the fee is irrelevant; a tax based on the content of the speech does not become more constitutional because it is a small tax. Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395 , 120 L. Ed. 2 d 101 (1992).

Municipal needs for protection of public overbalance inconvenience to paraders. - The needs of the municipal authorities for notice of the time at which a parade, march, demonstration, assembly, or picketing is to take place in order to protect the general public, including those participating in such an activity, overbalances the inconvenience to plaintiffs of foreseeing the activity and applying for a permit by 4:00 P.M. on the day before the activity. Jackson v. Dobbs, 329 F. Supp. 287 (N.D. Ga. 1970), aff'd, 442 F.2d 928 (5th Cir. 1971).

Municipal parade permit valid. - The requirement that a parade permit be secured in order to enable municipal authorities to limit the amount of interference with use of the sidewalks by other members of the public by regulating the time, place, and manner of the parade, is valid under the first amendment. Jackson v. Dobbs, 329 F. Supp. 287 (N.D. Ga. 1970), aff'd, 442 F.2d 928 (5th Cir. 1971).

Ordinance banning parades on Saturday mornings was a reasonable time, place, and manner restriction on speech. Nationalist Movement v. City of Cumming, 92 F.3d 1135 (11th Cir. 1996), cert. denied, 519 U.S. 1058, 117 S. Ct. 688 , 136 L. Ed. 2 d 612 (1997).

Regulation of "nonspeech". - There is a sufficiently important governmental interest in regulating "nonspeech" so as to justify incidental limitations on first amendment rights only if the governmental regulation is within the constitutional power of the government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged first amendment freedoms is no greater than is essential to the furtherance of that interest. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Municipality may not restrict access to auditorium. - Municipality may not empower its licensing officials to dispense or withhold permission to speak, assemble, picket, or parade, according to their own opinions regarding the potential effect of the activity in question on the "welfare," "decency," or "morals" of the community. Municipal officials do not, solely by reason of their authority to manage a municipal civic center and auditorium, have the unfettered right to censor and monitor the types of speech, and to prescribe the types of productions which may be performed in such a public auditorium. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

City officials have an obligation to make a municipal auditorium available to all for the exercise of first amendment rights despite the fact that the potential users might be able to go elsewhere or that they hope to make money. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Municipality may prevent monopolization of auditorium. - City may set up various procedural rules so that one person cannot monopolize a municipal auditorium or use it for a purpose for which it is not physically suited. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Level of scrutiny. - In a prior restraint of speech setting, to determine what level of scrutiny applies to an ordinance, a court must decide whether the regulation is related to the suppression of expression; if the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the "less stringent" O'Brien standard for evaluating restrictions on symbolic speech. I.D.K., Inc. v. Ferdinand, 277 Ga. 548 , 592 S.E.2d 673 (2004).

Statutes limiting speech must be narrowly drawn. - Constitutional guarantees of freedom of speech forbid states to punish use of words or language not within narrowly limited classes of speech. In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103 , 31 L. Ed. 2 d 408 (1972).

Regulation of speech containing "fighting" words. - State has power constitutionally to punish "fighting" words under carefully drawn statutes not also susceptible of application to protected expression. Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103 , 31 L. Ed. 2 d 408 (1972).

U.S. Air Force base order barring bumper stickers. - An administrative order barring from a U.S. Air Force base "bumper stickers or other paraphernalia" that "embarrass or disparage" the President was viewpoint neutral and reasonable; accordingly, the order did not violate the first amendment. Ethredge v. Hail, 56 F.3d 1324 (11th Cir. 1995).

Federal regulation of emergency care clinics. - Federal government regulations governing freestanding emergency care clinics violated first amendment rights of plaintiff physicians, where the regulations were more extensive than necessary to serve the governmental interest of prohibiting misleading advertising and were impermissibly vague in providing that facilities which used such terms as "emergency," "crisis," "sudden," "acute," or a similar meaning term fell within the regulatory ambit. Primary Care Physicians Group v. Ledbetter, 634 F. Supp. 78 (N.D. Ga. 1986).

Federal regulation of solicitors on postal property. - A federal regulation prohibiting solicitation of contributions on postal property did not violate U.S. Const., amend. 1. United States v. Belsky, 799 F.2d 1485 (11th Cir. 1986).

Internal Revenue Service regulations. - Institute which certifies those who offer tax service to the public failed in its attempt to enjoin the Internal Revenue Service from enforcement of a directive prohibiting the use of the term "certified" by an individual who practices as an "enrolled agent" for the Internal Revenue Service; the institute failed to establish that the directive placed an unconstitutional burden on its first amendment rights in that it did not show any instance of threatened enforcement action by the Internal Revenue Service and did not show a concrete factual situation sufficient to establish a case in controversy. Institute of Certified Practitioners, Inc. v. Bentsen, 874 F. Supp. 1370 (N.D. Ga. 1994).

Statute outlawing economic exploitation of racial bias valid although inhibiting of speech. - A statute which makes unlawful economic exploitation of racial bias and panic-selling is one regulating conduct, and any inhibiting effect it may have upon speech is justified by the government's interest in protecting its citizens from discriminatory housing practices and is not violative of the first amendment. United States v. Bob Lawrence Realty, Inc., 474 F.2d 115 (5th Cir.), cert. denied, 414 U.S. 826, 94 S. Ct. 131 , 38 L. Ed. 2 d 59 (1973).

Application of statute regarding refusal to disperse. - The application of O.C.G.A. § 16-10-30 (refusal to disperse) to members of the Revolutionary Communist Party involved in an angry public confrontation with residents of an apartment complex, in the absence of any violent acts or of efforts of the police to respond directly to any illegal conduct without focusing enforcement efforts on those engaged in speech, was unconstitutional. Sabel v. Stynchcombe, 746 F.2d 728 (11th Cir. 1984).

Enabling public official to govern which expressions of view will be heard unconstitutional. - Allowing a public official, through the exercise of a broad discretion, to determine which expression of views will be heard and which will be silenced permits the official to act as a censor. Inherent in any such censoring system is the danger that some individual will be denied equal protection of the laws in violation of the U.S. Const., amend. 14. Therefore, it is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups by use of a statute providing a system of broad discretional licensing power. Stoner v. Thompson, 377 F. Supp. 585 (M.D. Ga. 1974).

Regulatory statutes justified by valid state interests. - The freedom of expression guarantee under the Constitution has been consistently recognized as being narrower than an unlimited license to talk; and regulatory statutes not intended to control the content of speech but incidentally limiting its unfettered exercise are not regarded as violating the constitutional guarantee when justified by valid governmental interests. Aycock v. Police Comm., 133 Ga. App. 883 , 212 S.E.2d 456 (1975); Hodnett v. City of Atlanta, 145 Ga. App. 285 , 243 S.E.2d 605 (1978).

Content of expression not valid basis for regulation. - While a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for first amendment purposes, what a municipality may not do under the first and fourteenth amendments is to discriminate in the regulation of expression on the basis of the content of that expression. Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029 , 47 L. Ed. 2 d 196 (1976).

Licensing of bookstores and movie theaters. - Licensing of bookstores and movie theaters is not a per se violation of U.S. Const., amend. 1. A city may enact an ordinance, for legitimate purposes, requiring those who would exercise their freedom of speech to obtain a license in advance. Airport Bookstore, Inc. v. Jackson, 242 Ga. 214 , 248 S.E.2d 623 (1978), cert. denied, 441 U.S. 952, 99 S. Ct. 2182 , 60 L. Ed. 2 d 1057 (1979).

Adult films properly regulated. - A zoning ordinance, regulating the location of adult motion picture theaters and treating them differently from other motion picture theaters, does not violate the first or fourteenth amendments because even though a city may not suppress adult films, it may place them in a different classification from other films and regulate them. Airport Bookstore, Inc. v. Jackson, 242 Ga. 214 , 248 S.E.2d 623 (1978), cert. denied, 441 U.S. 952, 99 S. Ct. 2182 , 60 L. Ed. 2 d 1057 (1979).

Reasonable time, place, and manner regulations. - Reasonable time, place, and manner regulations concerning speech may be necessary to further significant governmental interests and are permitted. A city ordinance prohibiting the display of "For Sale" signs in an effort to promote racial integration and prevent "white flight" violates a property owners' first amendment rights and is unconstitutional. Daugherty v. City of E. Point, 447 F. Supp. 290 (N.D. Ga. 1978).

Restricting printed material. - If printed material is not protected by the first amendment, the state has nearly free rein to regulate and control its publication and distribution. If, however, even a portion of the material enjoys constitutional protections, the state as a rule may only limit its publication under the most compelling circumstances, and with the least restrictive interference. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff'd, 621 F.2d 141 (5th Cir. 1980).

Ordinance prohibiting the distribution of printed materials to homes violated the freedom of speech and press under the United States and Georgia Constitutions because it was not narrowly tailored to meet the city's interest in preventing litter and failed to provide for meaningful alternatives of communication. Statesboro Publ. Co. v. City of Sylvania, 271 Ga. 92 , 516 S.E.2d 926 (1999).

Blanket restriction as to minors' access to printed material struck down. - Where the state imposed a blanket restriction on printed material, not merely a regulation within the confines of a school during school hours, the restriction as to minors' access to the material must be struck down as it would be if it infringed the freedom of expression of adults as well. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff'd, 621 F.2d 141 (5th Cir. 1980).

Restricting distribution of literature in public park. - Ordinance prohibiting distribution of literature anywhere in public park except at one of two specified booths, limiting number of leafleteers to four at each booth, requiring acquisition of a permit seven days in advance, and extensive identifying information in application for permit went beyond the narrow regulation allowed by the Constitution. Stone Mt. Mem. Ass'n v. Zauber, 262 Ga. 661 , 424 S.E.2d 279 (1993).

O.C.G.A. § 34-9-31 of the Workers' Compensation Truth in Advertising Act of 1995, requiring advertisers of workers' compensation services to include a notice regarding criminal penalties for filing fraudulent claims, violated U.S. Const., amend. 1. Tillman v. Miller, 133 F.3d 1402 (11th Cir. 1998).

Protesting on premises of federal building. - Injunction restricting a protester's activities on a portico of and inside a federal building was valid, only insofar as it did not prohibit the protestor from engaging in any expressive conduct at all inside the building or on the portico, including such activity as wearing a political button, or talking with someone about the day's news events. United States v. Gilbert, 920 F.2d 878 (11th Cir. 1991).

Injunction preventing a protester from using an unenclosed plaza of a federal building as the protester's residence was valid, only insofar as it did not prohibit the protester from sleeping in the unenclosed plaza, if the protester did so as part of a protest. United States v. Gilbert, 920 F.2d 878 (11th Cir. 1991).

A prior injunction against defendant placing certain restrictions on the defendant's activities on federal property did not forever guarantee the defendant immunity from other reasonable restrictions on first amendment activity that the government placed on all persons seeking to use the property. United States v. Gilbert, 945 F. Supp. 1571 (N.D. Ga. 1996), aff'd, 130 F.3d 1458 (11th Cir. 1997), cert. denied, 523 U.S. 1088, 118 S. Ct. 1547 , 140 L. Ed. 2 d 695 (1998).

4. Prior Restraint

Discretionary requirement of permit for enjoyment of basic freedoms invalid as prior restraint. - An ordinance which makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official - as by requiring a permit or license which may be granted or withheld in the discretion of such official - is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms. Staub v. City of Baxley, 355 U.S. 313, 78 S. Ct. 277 , 2 L. Ed. 2 d 302 (1958).

Mass Gatherings Act. - Because the Mass Gatherings Act, O.C.G.A. T. 31, Ch. 27 fails to provide a time limit within which the Department of Human Resources (DHR) must act upon an application for a permit, it delegates overly broad discretion to the DHR and, therefore, constitutes an unconstitutional prior restraint on the exercise of first amendment rights. Bo Fancy Prods., Inc. v. Rabun County Bd. of Comm'rs, 267 Ga. 341 , 478 S.E.2d 373 (1996).

Ordinance requiring approval of films by censor not invalid. - A charter and ordinance which forbids the showing of any picture without its having been approved by a censor does not on its face offend the United States Constitution. K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784 , 125 S.E.2d 207 (1962).

Prior restraints presumed invalid. - While prior restraints are not per se indefensible, they bear a heavy presumption of invalidity. United States v. Book Bin, 306 F. Supp. 1023 (N.D. Ga. 1969), aff'd sub nom. Blount v. Rizzi, 400 U.S. 410, 91 S. Ct. 423 , 27 L. Ed. 2 d 498 (1971).

Any imposition of prior restraint upon expression bears a heavy presumption of constitutional invalidity. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Prior restraint upon expression bears a heavy presumption against its constitutional validity, but even where this presumption might otherwise be overcome the restraint must be the product of careful procedural provisions designed to assure the fullest consideration of the matter at hand which the circumstances permit. Anderson v. Dean, 354 F. Supp. 639 (N.D. Ga. 1973).

There is a strong presumption against the constitutional validity of a system of prior restraint. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Prerequisite showing for imposition of prior restraint. - No government may impose a prior restraint unless it has shown, at the very least, that the particular speech it is attempting to suppress is overwhelmingly likely to fall outside the protection of the first amendment. International Soc'y for Krishna Consciousness v. Eaves, 601 F.2d 809 (5th Cir. 1979).

There is a heavy burden on the defendants to justify their actions where they constitute a prior restraint. Reineke v. Cobb County Sch. Dist., 484 F. Supp. 1252 (N.D. Ga. 1980).

Prior restraint requires showing of "clear and present danger". - Public officials who attempt prior restraint on speech are able to justify it only by showing an overwhelming contrary state interest, such as a clear and present danger of great violence and severe injury. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Possibility of criminal violations does not justify prior restraints. - Mere raising of possibility of criminal violations does not justify imposition of prior restraint upon expression. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Prohibiting mailing of abortion procurement information. - Statute prohibiting mailing of printed matter containing information concerning procuring of abortions is unconstitutional because such matter is protected speech under the first amendment and is entitled to be transmitted without prior restraint. Atlanta Coop. News Project v. United States Postal Serv., 350 F. Supp. 234 (N.D. Ga. 1972).

Restraints on publishing. - A publisher cannot be restrained by a prior order from publishing what the publisher desires to publish, but this in no sense exonerates such publisher from liability for what the publisher has published. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660 , 45 L. Ed. 2 d 696 (1975).

Restraint on mailing letters. - Right to mail letters is first amendment right and prior restraint on that right, which bears heavy presumption of invalidity, must be carefully scrutinized. Anderson v. Dean, 354 F. Supp. 639 (N.D. Ga. 1973).

Injunction against publication of any information about person is prior restraint. - The power of a court of the United States to enjoin publication of information about a person, without regard to truth, falsity, or defamatory character of that information is a matter of concern. Such an injunction, enforceable through the contempt power, constitutes a prior restraint by the United States against the publication of facts which the community has a right to know and which any party has the right to publish. A court is without power to make such an order. Anderson v. Dean, 354 F. Supp. 639 (N.D. Ga. 1973).

Heavy restraints on adult cinemas invalid. - Local ordinance requiring numerous, extensive, and imprecise licensing standards and a high license fee from theaters showing "adult", but not obscene, films imposed invalid restraints on rights of U.S. Const., amend. 1. Coleman v. Bradford, 238 Ga. 505 , 233 S.E.2d 764 (1977).

Gag order as prior restraint on news media. - Modified gag order, which restrained the lawyers, court personnel, and current and retired law enforcement personnel from making extrajudicial, public statements on certain subjects related to a murder case, was vacated because the significant media interest in the case did not show any likelihood that the persons to whom the modified gag order was directed would make prejudicial statements; the record did not suggest that any lawyers, court personnel, or law enforcement personnel had disclosed sensitive or confidential information; and the accused and the state failed to identify a single statement attributed to anyone to whom the modified gag order applied that was likely to prejudice the accused's right to a trial by an impartial jury. WXIA-TV v. State of Ga., 303 Ga. 428 , 811 S.E.2d 378 (2018).

Limitation of communication between litigants not impermissible prior restraint. - Court orders limiting communications regarding ongoing litigation between a class and class opponents did not constitute unconstitutional prior restraint. Kleiner v. First Nat'l Bank, 751 F.2d 1193 (11th Cir. 1985).

Balancing of private and public policy interests by government. - Fundamental purpose of U.S. Const., amend. 1 is to foreclose governmental control or manipulation of sentiments uttered to the public; therefore, before presumptively protected material is involuntarily removed from the market place by governmental activity which arguably is not directed toward that end, competing private and public policy interests must be carefully balanced in light of all the circumstances. Penthouse Int'l, Ltd. v. McAuliffe, 436 F. Supp. 1241 (N.D. Ga. 1977), aff'd in part and rev'd in part on other grounds, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Judicial interference required where state intends to remove protected speech from public eye. - Before state officials may undertake a series of warrantless arrests which generate reasonably foreseeable effects in terms of removing presumptively protected speech from the public eye, judicial intervention of some dimension is constitutionally required. Penthouse Int'l, Ltd. v. McAuliffe, 436 F. Supp. 1241 (N.D. Ga. 1977), aff'd in part and rev'd in part on other grounds, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Courts must look through form to substance in determining whether system of informal censorship has been formulated; if a system of prior restraint is found, it comes before a federal district court bearing a heavy presumption against its constitutional validity. Penthouse Int'l, Ltd. v. McAuliffe, 436 F. Supp. 1241 (N.D. Ga. 1977), aff'd in part and rev'd in part on other grounds, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

5. Broadcasting

Right to broadcast depends on availability of allocable frequencies. - Although broadcasting is clearly a medium affected by first amendment interest, differences in characteristics of news media justify differences in the first amendment standards applied to them. Where there are substantially more individuals who want to broadcast than there are frequencies to allocate there is no unabridgeable right of U.S. Const., amend. 1 to broadcast comparable to the right of every individual to speak, write, or publish. United States v. WIYN Radio, Inc., 464 F. Supp. 101 (N.D. Ga. 1978), rev'd on other grounds, 614 F.2d 495 (5th Cir. 1980).

Natural monopoly argument inapplicable to cable television. - Cable television is entitled to the same first amendment protection as newspapers. The natural monopoly argument does not apply to cable television operators; granting an exclusive franchise does not serve an important or substantial governmental interest. Cox Cable Communications, Inc. v. United States, 774 F. Supp. 633 (M.D. Ga. 1991), rev'd on other grounds, 992 F.2d 1178 (11th Cir. 1993).

Personal attack rule promulgated by the Federal Communications Commission does not constitute an unlawful restraint upon the broadcast licensee's rights under U.S. Const., amend. 1 of freedom of speech and of the press. United States v. WIYN Radio, Inc., 464 F. Supp. 101 (N.D. Ga. 1978), rev'd on other grounds, 614 F.2d 495 (5th Cir. 1980).

Names and likeness of public figures in fictionalized dramatization. - Because racehorse trainer and jockey were public figures, federal district court construed their invasion of privacy claims against filmmakers who used actors to portray them in a movie about a racehorse's career as right of publicity claims and held that use of their names and likenesses in a fictionalized dramatization of past newsworthy events was protected by the First Amendment. Thoroughbred Legends, LLC v. Walt Disney Co., F. Supp. 2d (N.D. Ga. Feb. 12, 2008).

Statements not related to journalistic endeavor. - Where statements which defendant was charged with making and with encouraging others to make on the defendant's radio show were quite clearly unrelated to any legitimate form of journalistic endeavor, the defendant was not protected on ground of "journalistic privilege" in the defendant's refusal to divulge the identity of his news sources for the allegedly defamatory statements. Georgia Communications Corp. v. Horne, 164 Ga. App. 227 , 294 S.E.2d 725 (1982).

Broadcaster liability for newsworthy report. - Broadcaster may be liable even for newsworthy report if it contains a defamatory statement and the broadcaster failed to employ the procedures a reasonable broadcaster under the circumstances would have employed to assure the accuracy of the statement before broadcasting the report. Diamond v. American Family Corp., 186 Ga. App. 681 , 368 S.E.2d 350 , cert. denied, 186 Ga. App. 917 , 368 S.E.2d 350 (1988).

Broadcaster prohibited from removing defamatory statements from candidates' speeches. - The fact that a broadcaster may be constitutionally prohibited by statute from removing defamatory statements contained in speeches broadcast by legally qualified candidates for public office does not demonstrate any right under U.S. Const., amend. 1 of a candidate to access. Belluso v. Turner Communications Corp., 633 F.2d 393 (5th Cir. 1980).

No evidence FCC approved station refusal of plaintiff's commercial. - The fact that the Federal Communications Commission did not order the station to air plaintiff's message at the time an exemption from § 315(a) of the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq., was requested is no evidence that the commission would have or did approve of the station's decision to refuse the commercial. Belluso v. Turner Communications Corp., 633 F.2d 393 (5th Cir. 1980).

Determination of presence of governmental action. - Since broadcasters are not instrumentalities or agents of the government, but operate as private parties under government regulation, determination of whether there has been governmental action in any particular case turns on whether the government in fact was in some way involved in bringing about the alleged violation, either by requiring or urging the broadcaster to commit the challenged action. Belluso v. Turner Communications Corp., 633 F.2d 393 (5th Cir. 1980).

Broadcaster's acts were private and not governmental under first amendment. - Since broadcasters exercise wide discretion over the content and format of their programming, where a broadcast licensee acts in a manner inconsistent with the requirements of the Federal Communications Act, 47 U.S.C. § 151 et seq., and where those acts are in no way sanctioned by a governmental body such as the Federal Communications Commission, they are private and not governmental acts for purposes of first amendment analysis. Belluso v. Turner Communications Corp., 633 F.2d 393 (5th Cir. 1980).

Existence of regulations does not imply governmental entity. - Existence of regulations does not automatically transform regulated entity into government instrumentality for purposes of first amendment analysis. Belluso v. Turner Communications Corp., 633 F.2d 393 (5th Cir. 1980).

Public television station's rules and regulations requiring that producers be respectful of others at the production facility were reasonable and the station's action in barring a violator from the facility was reasonable under the circumstances and did not violate the producer's first amendment rights. Jersawitz v. People TV, 71 F. Supp. 2d 1330 (N.D. Ga. 1999).

Broadcaster's actions not imputable to government. - Once it is determined that a broadcaster acts as a private person subject to government regulations, a broadcaster's actions cannot be imputed to the government unless they are in some way approved or sanctioned by the government. Belluso v. Turner Communications Corp., 633 F.2d 393 (5th Cir. 1980).

FCC's silence not construable as governmental action. - Where plaintiff failed to seek compliance with the Federal Communications Act, 47 U.S.C. § 151 et seq., before the Federal Communications Commission, that body's silence cannot be turned into governmental action for first amendment purposes. Belluso v. Turner Communications Corp., 633 F.2d 393 (5th Cir. 1980).

Injunctive relief. - As a general rule, a plaintiff is entitled to a permanent injunction when copyright liability has been established and there is a threat of continuing infringement. However, the broadcast media present an unusual order of first amendment values due to the inherent difficulty in allocating a scarce number of broadcast frequencies among applicants. Under these circumstances, caution in fashioning a remedy is indicated and broad injunctive relief will not be granted to a broadcaster unless entitlement to and need for such relief is clear and convincing. Pacific & S. Co. v. Duncan, 572 F. Supp. 1186 (N.D. Ga. 1983), aff'd in part, rev'd in part, 744 F.2d 1490 (11th Cir. 1984), cert. denied, 471 U.S. 1004, 105 S. Ct. 1867 , 85 L. Ed. 2 d 161 (1985).

A federal court, in fashioning a permanent injunction against a "TV news clip" service, which violated a television station's copyright by copying and selling that station's newscasts, was not free to exempt portions of broadcasts on a subject/format basis, i.e., to exempt film footage of public events. Accordingly, the news service was permanently enjoined from copying and selling copies of the television station's newscasts, in whole or in part. Pacific & S. Co. v. Duncan, 618 F. Supp. 469 (N.D. Ga. 1985), aff'd, 792 F.2d 1013 (11th Cir. 1987).

Off-the-air video-taping of live television news broadcasts by television news monitoring service, followed by the marketing and sale of news tapes to interested members of the public, infringes the broadcaster's copyright under federal law. The first amendment does not prohibit interference with such activities. Pacific & S. Co. v. Duncan, 572 F. Supp. 1186 (N.D. Ga. 1983), aff'd in part, rev'd in part, 744 F.2d 1490 (11th Cir. 1984), cert. denied, 471 U.S. 1004, 105 S. Ct. 1867 , 85 L. Ed. 2 d 161 (1985).

U.S. Const., amend. 1 did not conflict with a television station's effort to enforce its copyright against a business which videotaped its news broadcasts and sold the tapes to the subjects of the news reports. Pacific & S. Co. v. Duncan, 744 F.2d 1490 (11th Cir. 1984), cert. denied, 471 U.S. 1004, 105 S. Ct. 1867 , 85 L. Ed. 2 d 161 (1985).

Right to copy cable network's newscasts. - Any injunction that would prevent the copying of a cable television network's newscasts "in any part" would be inconsistent with the federal Copyright Act, particularly its fair use provisions, and both the copyright clause and the first amendment to the Constitution. CNN, Inc. v. Video Monitoring Serv. of Am., Inc., 940 F.2d 1471 (11th Cir. 1991), appeal dismissed, 959 F.2d 188 (11th Cir. 1992).

Excluding candidate from political debate not unconstitutional. - Georgia Public Telecommunications Commission's decision to air a debate between Democrat and Republican candidates for Governor, while excluding a Libertarian candidate, was not viewpoint restrictive and did not violate the first amendment. Chandler v. Georgia Pub. Telecommunications Comm'n, 917 F.2d 486 (11th Cir. 1990), cert. denied, 502 U.S. 816, 112 S. Ct. 71 , 116 L. Ed. 2 d 45 (1991).

Press access to criminal trial proceedings. - The press has no first amendment right of access to communications between counsel and the court which take place at the bench or in chambers, particularly when those communications involve evidence which the court determines to be inadmissible and which, if disclosed, could deprive the defendant of the fair trial by an impartial jury that the Constitution guarantees. United States v. Moody, 746 F. Supp. 1090 (M.D. Ga. 1990).

6. Employer - Employee Relations

First amendment protects the right of public employees to associate, speak, and petition freely, as well as the right of associations to engage in advocacy on behalf of their members. The government may not retaliate against individuals or associations for their exercise of first amendment rights by imposing sanctions for the expression of particular views it opposes. Georgia Ass'n of Educators v. Gwinnett County Sch. Dist., 856 F.2d 142 (11th Cir. 1988).

Speech involving public employee's personal interests not protected. - Speech involving matters of public concern is protected by U.S. Const., amend. 1, whereas speech involving matters relating to a public employee's personal interest is not. Ballard v. Blount, 581 F. Supp. 160 (N.D. Ga. 1983), aff'd, 734 F.2d 1480 (11th Cir.), cert. denied, 469 U.S. 1086, 105 S. Ct. 590 , 83 L. Ed. 2 d 700 (1984).

Threshold inquiry surrounding a first amendment claim as to a "reprimand" in public employment is whether plaintiff's speech and speech-related conduct involved matters of "public concern," rather than matters relating to plaintiff 's personal interest. If plaintiff's speech cannot be characterized as constituting speech on a matter of public concern, it is unnecessary for the court to scrutinize the reasons for the alleged reprimand. Cook v. Ashmore, 579 F. Supp. 78 (N.D. Ga. 1984).

Factors. - A state employee's claim that the employee was demoted on the basis of the exercise of constitutionally protected speech failed where: (1) the employee's conduct was closely connected with, and actually classified as, insubordination; (2) the employee's speech substantially interfered with the working operation of the employee's supervisors, and to a lesser extent disrupted subordinates' working environment; and (3) the demotion would have occurred in spite of the exercise of the speech. Howkins v. Caldwell, 587 F. Supp. 98 (N.D. Ga. 1983), aff'd, 749 F.2d 731 (11th Cir. 1984), cert. denied, 471 U.S. 1117, 105 S. Ct. 2361 , 86 L. Ed. 2 d 261 (1985).

Test for determining occurrence of retaliation for protected speech. - In determining whether an employee has suffered retaliation for protected speech the court must employ a four-part test: First, the court must determine whether the employee's speech may be fairly characterized as constituting speech on a matter of public concern; second, the court must weigh the employee's first amendment interest against the interest of the state, as an employer; third, should the employee prevail on the balancing test, the fact-finder must determine whether the employee's speech played a substantial part in the government's decision to demote or discharge the employee; and finally, if the employee shows that the speech was a substantial motivating factor in the employment decision, the state must prove by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993), cert. denied, 512 U.S. 1221, 114 S. Ct. 2708 , 129 L. Ed. 2 d 836 (1994).

Balancing test completed before jury decision on facts. - The Pickering balancing test, and the remainder of the qualified immunity inquiry, must be done before a case is sent to a jury for its determination of whether a plaintiff was actually fired for the plaintiff's speech. To do otherwise deprives defendants of the benefit of their qualified immunity defense. The entitlement is an immunity from suit rather than a mere defense to liability, and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Vista Community Servs. v. Dean, 107 F.3d 840 (11th Cir. 1997).

Where a causal link between the employee's speech and the adverse employment decision is lacking, a claim of retaliatory discharge must fail and it is unnecessary to consider other elements of the test for retaliation. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739 (11th Cir. 1996).

Employee's private and informal complaints which focused primarily on how the employee's colleagues behaved toward the employee and how that conduct affected the employee's work did not rise to the level of public concern for purposes of the employee's first amendment retaliation claim. Watkins v. Bowden, 105 F.3d 1344 (11th Cir. 1997).

Public employee's statements must relate to matters of public concern. - To be protected by the first amendment, a public employee's statements must relate to a matter of public concern; that is, to a matter of political, social, or other concern to the community. Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736 (S.D. Ga. 1989).

Absent extraordinary circumstances, an employee's speech is beyond the protection of the first amendment when the employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest. Pearson v. Macon-Bibb County Hosp. Auth., 952 F.2d 1274 (11th Cir. 1992).

Municipal housing authority employee's complaints challenging the employee's termination from the employee's job could properly be characterized as constituting speech on "a matter of public concern" protected by the first amendment. Therefore, the lower court's granting of summary judgment in favor of the employer was inappropriate. Peterson v. Atlanta Hous. Auth., 998 F.2d 904 (11th Cir. 1993).

Where a corrections officer's comments during a private conversation with an inmate did not involve facts, but instead expressed the officer's personal opinion about another officer's job performance, the officer did not speak on a matter of public concern, and the officer's actions, having the potential for compromising the safety and security of the institution, justified the officer's discharge. Department of Cors. v. Derry, 235 Ga. App. 622 , 510 S.E.2d 832 (1998).

Alleged incidents of speech and association by plaintiff hospital employees were not afforded first amendment protection where the matter was best described as nothing more than private workplace grievances that took place at a public hospital. Nero v. Hospital Auth., 86 F. Supp. 2d 1214 (S.D. Ga. 1999).

Statement of assistant county clerk to the clerk's employer, in the employer's capacity as a county commissioner, that the county could not lawfully refuse to pay overtime wages did not relate to a matter of public concern. Chesser v. Sparks, 248 F.3d 1117 (11th Cir. 2001).

Unsuccessful attempts to prevent protected speech. - The speech retaliation cases do not dictate the conclusion that an unsuccessful attempt to prevent protected speech violates the first amendment. Suissa v. Fulton County, 74 F.3d 266 (11th Cir. 1996), overruled in part by Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508 , 153 L. Ed. 2 d 666 (2002), overruled on other grounds, Overruled in part, Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508 , 153 L. Ed. 2 d 666 (2002).

Sexual harassment complaint not protected speech. - Employee's speech, which was driven by the employee's own entirely rational self-interest in improving the conditions of employment towards an environment free of sexual harassment, concerned a private not public matter for which demotion or discharge were not constitutionally redressable. Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993), cert. denied, 512 U.S. 1221, 114 S. Ct. 2708 , 129 L. Ed. 2 d 836 (1994).

Personal disagreement not a matter of public concern. - Statements involving matters of personal disagreement between a school teacher and the teacher's school administration were not related to matters of public concern, and were, therefore, not protected under the first amendment. Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736 (S.D. Ga. 1989).

More protection granted whistle-blowers. - An employee's first amendment interest is entitled to more weight where the employee is acting as a whistle-blower exposing government corruption. Abernathy v. City of Cartersville, 642 F. Supp. 529 (N.D. Ga. 1986).

Sheriff who terminated a deputy's employment for cooperating with a law enforcement investigation into corruption at the sheriff's department violated the deputy's first amendment rights and the sheriff was not entitled to qualified immunity. Cooper v. Smith, 89 F.3d 761 (11th Cir. 1996).

Non-renewal of state teacher's contract non-retaliatory. - Non-renewal of state educational agency's employment contract with personal finance teacher was held not to be a retaliatory measure for the teacher's testimony in another discriminatory hearing where defendant's actions were justified ultimately by the declining enrollment in the course. Durrani v. Valdosta Tech. Inst., 810 F. Supp. 301 (M.D. Ga. 1992), aff'd, 3 F.3d 443 (11th Cir. 1993).

Defendants' picketing customers of their employer entitled to protection. - In a case where questions arising under the federal Constitution are properly invoked, the state Supreme Court is bound to follow the decisions of the Supreme Court of the United States as respects such questions. Accordingly, the court held, under those decisions, that the superior court did not err in refusing to enjoin the defendants from picketing customers of their employer, since to have done so would have denied them their right of free speech. Mason & Dixon Lines v. Odom, 193 Ga. 471 , 18 S.E.2d 841 (1942).

Violators of order prohibiting strike violence not entitled to protection. - Where an order of court forbidding the use of threats, violence, and intimidation for the purpose of preventing others from engaging in their employment during a labor strike is violated, the violator can find no protection under the constitutional guaranty of free speech. Lassiter v. Swift & Co., 204 Ga. 561 , 50 S.E.2d 359 (1948).

Picketing for purpose of aiding unlawful strike not protected. - The judicial theory that peaceful picketing is a form of free speech, which is protected by the federal and state Constitutions, cannot be stretched to shield malevolent picketing for the purpose of injuring the employer and aiding an unlawful strike. Ellis v. Parks, 212 Ga. 540 , 93 S.E.2d 708 (1956); NAACP v. Overstreet, 221 Ga. 16 , 142 S.E.2d 816 (1965), cert. dismissed, 384 U.S. 118, 86 S. Ct. 1306 , 16 L. Ed. 2 d 409 (1966).

Employee's seeking to enjoin enforcement of closed shop contract stated cause of action. - Where the United States Supreme Court has not held that an employee can by closed shop employment contracts be required as an alternative to losing the employee's job to join a union which will use contributions the employee makes to it to promote ideological and political issues and candidates the employee opposes, therefore, the state Supreme Court held that the petition of these employees seeking to enjoin the enforcement of the employment contract and decree it void because of such uses of their contributions alleged a cause of action and it was error to dismiss the cause of action. Looper v. Georgia, S. & Fla. Ry., 213 Ga. 279 , 99 S.E.2d 101 (1957).

Peaceful picketing with object of eliminating racial discrimination in department stores open to general public is a right embraced in free speech under the first amendment to the Constitution, and made applicable to the states by U.S. Const., amend. 14. Kelly v. Page, 335 F.2d 114 (5th Cir. 1964).

Picketing for purpose of hurting plaintiff's business not protected. - Where the sole purpose of the picketing of plaintiff's place of business was to injure and damage the plaintiff's business, as punishment for the alleged beating of a Negro boy who worked for the plaintiff, the picketing was unlawful and not protected under the free speech provisions of the federal and state Constitutions. NAACP v. Overstreet, 221 Ga. 16 , 142 S.E.2d 816 (1965), cert. dismissed, 384 U.S. 118, 86 S. Ct. 1306 , 16 L. Ed. 2 d 409 (1966).

Balancing rights of public employee and rights of state as employer. - Vital considerations to be weighed in balancing a public employee's rights under U.S. Const., amend. 1 and the rights of the state as an employer are whether the statements were directed toward a person with whom the speaker would normally be in daily contact, and whether such speech raised questions concerning either maintenance of discipline by immediate superiors or harmony among coworkers. Cotten v. Board of Regents of Univ. Sys., 395 F. Supp. 388 (S.D. Ga. 1974), aff'd, 515 F.2d 1098 (5th Cir. 1975).

In determining whether a public employee's speech is constitutionally protected, the court must balance the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Courts v. Economic Opportunity Auth. For Savannah - Chatham County Area, Inc., 451 F. Supp. 587 (S.D. Ga. 1978).

Balancing test is to be applied in determining whether public employer may inhibit its employee's rights of free speech. In striking this balance between interests of a governmental employee as a citizen and interests of the government in promoting efficiency of the services it performs through its employees, there are factual matters appropriate for determination by a jury. Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir. 1980).

In determining whether a government employee's speech is constitutionally protected, the interests of the employee, as a citizen, in commenting upon matters of public concern must be balanced against the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Press v. Board of Regents, 489 F. Supp. 150 (M.D. Ga. 1980).

Confidentiality and harmony relevant in determining balance of interests. - In weighing the interests of the state versus that of citizen employee, the importance of confidentiality and harmony is relevant. Williams v. Board of Regents, 629 F.2d 993 (5th Cir. 1980), cert. denied, 452 U.S. 926, 101 S. Ct. 3063 , 69 L. Ed. 2 d 428 (1981).

Rule prohibiting police officer from criticizing superior. - Police officer is not denied freedom of speech by rule which forbids the officer from publicly criticizing official actions of a superior officer because finding such a rule unconstitutional would enable a police officer to engage in the rankest form of insubordination, which would lead to the complete disruption and destruction of the relationship between the superior and subordinate with the concomitant impairment of an effective municipal police department. Aycock v. Police Comm., 133 Ga. App. 883 , 212 S.E.2d 456 (1975).

Under the Pickering balancing test for evaluating public employee speech restrictions, a county's questioning of officers about their off-duty union activities while conducting a disciplinary investigation of the local police union's president for "mutinous" comments the president made about replacing the incumbent police chief violated the First Amendment because it had a chilling effect on associational rights. Local 491 v. Gwinnett County, 510 F. Supp. 2d 1271 (N.D. Ga. 2007).

Government employee prohibited from criticizing superiors. - Government employee may be required to forfeit the employee's right to publicly and truthfully criticize the employee's superiors if the employee occupies a high ranking position which requires continued loyalty to them and if such criticism actually undermines their working relationship. Courts v. Economic Opportunity Auth. For Savannah - Chatham County Area, Inc., 451 F. Supp. 587 (S.D. Ga. 1978).

Retaliatory dismissal of federal employee for criticism of superiors not violation of right. - Where federal employee alleges that the employee's dismissal was due to a conspiracy of superiors who acted in retaliation to the employee's criticism, the employee may not claim a violation of the employee's right to free speech. Metz v. McKinley, 583 F. Supp. 683 (S.D. Ga.), aff'd, 747 F.2d 709 (11th Cir. 1984).

Police officer's claim of theft by high police officials was within the area of "public concern" in which public employees may exercise their right of free speech as plaintiff alleged that the plaintiff was terminated from employment as a result of the plaintiff's testimony before a grand jury regarding improper actions by superior officers. Abernathy v. City of Cartersville, 642 F. Supp. 529 (N.D. Ga. 1986).

Dispute between police captain and police chief. - Although a police captain could not have been lawfully demoted or terminated for expressing the captain's displeasure with the police chief under the proper circumstances, the captain's speech was not protected when it disrupted the efficient functioning of the police department. Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir. 1989).

Obscene comments concerning supervisors not protected. - A firefighter's obscene comments regarding superiors made in front of the firefighter's co-workers, in violation of an administrative rule stating that "An employee shall be civil, orderly, and courteous to ... supervisors, and shall not use coarse, insensitive, abusive, violent or profane language," was not constitutionally protected. Also, the rule itself, as limited to on-duty conduct and speech, was not unconstitutionally overbroad. Marshall v. City of Atlanta, 614 F. Supp. 581 (N.D. Ga. 1984), aff'd, 770 F.2d 174 (11th Cir. 1985).

Use of racial epithets not protected speech. - A public employee's use of racial epithets in reference to coworkers was not protected speech about matters of public concern and, thus, a first amendment analysis would not be used to examine the propriety of the employee's termination. Wright v. Glynn County Bd. of Comm'rs, 932 F. Supp. 1476 (S.D. Ga. 1996).

Police officer's speech was protected. - A police officer's disparaging remarks about the police chief were protected by the first amendment where the remarks were made while the officer was off-duty, out of uniform, out of the department's jurisdiction, and speaking to another off-duty officer that the officer considered a friend and where the police department made no showing of actual harm or a reasonable likelihood of harm to its efficiency, discipline, or harmony. Waters v. Chaffin, 684 F.2d 833 (11th Cir. 1982).

An employee's freedom of speech is protected under the first amendment when the interest of an employee in commenting on matters of public concern outweighs the interests of the employer in performing public services efficiently. Because of the case-by-case nature of the balancing test, qualified immunity will always protect an employer unless the employee's speech would definitely and necessarily pass the balancing test. Therefore, a police officer who supported the mayor's opponent was entitled to first amendment protection. Clark v. City of Zebulon, 156 F.R.D. 684 (N.D. Ga. 1993).

Police officers removal of flag patches from uniforms constituted protected speech. - Police officers were improperly dismissed for failing to obey a city resolution requiring a flag patch on police uniforms after they removed the patches in protest of police practices as the officers were exercising constitutionally protected rights. Leonard v. City of Columbus, 705 F.2d 1299 (11th Cir. 1983), cert. denied, 468 U.S. 1204, 104 S. Ct. 3571 , 82 L. Ed. 2 d 870 (1984).

Refusal to discuss internal investigation. - Undercover investigator who refused to discuss with supervisor an on-going investigation into alleged illegal actions of the supervisor did not have the investigator's free speech rights violated when the sheriff's office transferred and subsequently dismissed investigator. Although the investigator's speech was a matter of public concern, the investigator's first amendment interests did not obviously outweigh the interest of the sheriff's department in providing efficient service, and the investigator failed to establish that the investigator would not have been discharged but for the speech at issue. Smith v. Upson County, 859 F. Supp. 1504 (M.D. Ga. 1994), aff'd, 56 F.3d 1392 (11th Cir. 1995).

Public employees who strike not constitutionally protected from being fired. - Public employees, like all citizens, enjoy the right and privilege of freedom of speech as guaranteed by U.S. Const., amend. 1 which includes the freedom to associate for the advancement of beliefs and ideas. As such, public employees cannot be prohibited from participating in the activities of labor unions. Likewise, they cannot be penalized for advocating the right of public employees to strike or for joining unions which so contend. While they may so associate and advocate and not be retaliated against for doing so, they cannot go further and by striking compel their public employer to recognize or bargain with a union. When they do go further and by striking seek to force their public employer to recognize or bargain with a union they have gone beyond the outer limits of their constitutional protections of free expression and association, and they are not constitutionally insulated from being fired or otherwise penalized for refraining and continuing to refrain from working. Johnson v. City of Albany, 413 F. Supp. 782 (M.D. Ga. 1976).

Delegation of power by city to Director of Bureau of Corrections. - It is question of fact whether city delegated to Director of Bureau of Corrections the final or ultimate authority to make personnel decisions in the Bureau of Corrections with respect to work assignments, transfers, days off, discipline, hiring and firing of employees, and restrictions concerning employees' rights to engage in certain free speech activity. Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir. 1980).

City liable for official conduct of city official. - In a case by a former Bureau of Corrections employee claiming that the employee was constructively discharged for exercise of the employee's rights under U.S. Const., amend. 1, the Director of Correction's official conduct must be considered that of one whose edicts or acts may fairly be said to represent official policy for which the city may be held responsible where such conduct involves areas in which the director is the final authority or repository of power. Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir. 1980).

Burdens of proof. - Government employee has the burden of proving that the employee's speech was constitutionally protected and that its exercise was a substantial factor in the employee's discharge. Courts v. Economic Opportunity Auth. For Savannah - Chatham County Area, Inc., 451 F. Supp. 587 (S.D. Ga. 1978).

Where former correctional officer attempted to organize "sick out" among officers in protest of alleged improper treatment of prisoners and unsatisfactory working conditions and brought suit claiming constructive discharge for exercise of right of freedom of speech under U.S. Const., amend. 1, for the government to prevail it must show that the employee's conduct substantially interfered with the discharge of duties and responsibilities inherent in governmental employment, while for plaintiff to prevail, the plaintiff must demonstrate that the asserted retaliation by the governmental employer was motivated specifically by what has been determined to be protected speech. Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir. 1980).

Plaintiff bears burden of proving speech or conduct was reason for improper dismissal. - In an action claiming improper dismissal on the basis of an exercise of first amendment rights, the plaintiff bears the initial burden of proving that the plaintiff's speech or conduct was a substantial or motivating factor in the decision not to hire the plaintiff and that the speech or conduct was constitutionally protected. Leonard v. City of Columbus, 705 F.2d 1299 (11th Cir. 1983), cert. denied, 468 U.S. 1204, 104 S. Ct. 3571 , 82 L. Ed. 2 d 870 (1984).

Burden of city to show that firefighter not discharged for exercising free speech rights. - Where a firefighter demonstrated that the firefighter engaged in conduct protected by the first amendment and that this conduct was a substantial or motivating factor in a defendant city's decision to abolish the firefighter's position and to demote the firefighter, the burden shifted to the city to prove that it would have reached the same decisions as to the abolition and demotion even in the absence of the firefighter's protected conduct. Williams v. City of Valdosta, 689 F.2d 964 (11th Cir. 1982).

Question of law whether plaintiff's attempt to organize "sick out" was protected speech. - It was a question of law whether plaintiff's attempt to organize a "sick out" among the plaintiff's fellow employees was protected speech under U.S. Const., amend. 1 and the trial court erred in submitting this issue to the jury. Determining whether plaintiff's attempt to organize a "sick out" constituted protected speech is but a legal inference drawn from the basic facts in the case and is reviewable as any other legal ruling or conclusion. Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir. 1980).

Question of fact whether plaintiff was discharged because of protected speech. - If plaintiff's attempt to organize a "sick out" among the plaintiff's fellow employees is found to be protected speech under the first amendment, it is then a question of fact whether the plaintiff was constructively discharged because of it. Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir. 1980).

Bona fide factual dispute, precluding summary judgment, existed as to whether a county tax appraiser was terminated in retaliation for the appraiser's public speeches supporting a system of appraising personalty known as "trending." Lovell v. Floyd County, 710 F. Supp. 1364 (N.D. Ga. 1989).

Plaintiff's discharge question of law. - Whether plaintiff was constructively discharged for reasons that impermissibly abridged the plaintiff's rights under U.S. Const., amend. 1 was ultimately a question of law for the trial court. Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir. 1980).

Public's right to know official malfeasance and police officer's duty to make it known outweighed other interests. - In a case involving discharge of appellee, a police officer, for leaking information about falsification of records by one official for the protection of another official, although the working relationship of the parties was damaged, this exigency paled before the need of the public to know of the malfeasance involved, and the right of the appellee to make it known both for the appellee's own protection and as the appellee's duty as servant to the people. Williams v. Board of Regents, 629 F.2d 993 (5th Cir. 1980), cert. denied, 452 U.S. 926, 101 S. Ct. 3063 , 69 L. Ed. 2 d 428 (1981).

Nature of communication relevant to balancing interests of public employee and state. - Although protection under the first amendment is not dependent upon the "social worth" of ideas, the nature of the communication is relevant to the balancing of the interests of the employee as a citizen against the interest of the governmental unit. Williams v. Board of Regents, 629 F.2d 993 (5th Cir. 1980), cert. denied, 452 U.S. 926, 101 S. Ct. 3063 , 69 L. Ed. 2 d 428 (1981).

Analysis regarding discharge from employment for communication the same regardless of confidentiality. - The balancing analysis under U.S. Const., amend. 1 with regard to a discharge from employment for communication is the same regardless of the existence of a confidentiality policy. Williams v. Board of Regents, 629 F.2d 993 (5th Cir. 1980), cert. denied, 452 U.S. 926, 101 S. Ct. 3063 , 69 L. Ed. 2 d 428 (1981).

Interest of public accorded greatest weight. - Analysis under U.S. Const., amend. 1 requires that the quality and nature of the speech be balanced with the exigencies of the work place but with the far greater weight attached to the interest of the public. Williams v. Board of Regents, 629 F.2d 993 (5th Cir. 1980), cert. denied, 452 U.S. 926, 101 S. Ct. 3063 , 69 L. Ed. 2 d 428 (1981).

Freedom of speech of public employee talking privately with employer. - U.S. Const., amend. 1 forbids abridgment of freedom of speech. Neither the amendment itself nor the United States Supreme Court decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with an employer rather than to spread the employee's views before the public. Press v. Board of Regents, 489 F. Supp. 150 (M.D. Ga. 1980).

Employee's arranging meeting between co-employee and attorney not protected. - The conduct for which a union employee was disciplined - arranging for a meeting between an injured co-employee and an attorney for the purpose of filing a suit against the employer and personally taking the co-employee to meet with the attorney - was not protected by U.S. Const., amend. 1. Woodrum v. Southern Ry., 750 F.2d 876 (11th Cir.), cert. denied, 474 U.S. 821, 106 S. Ct. 71 , 88 L. Ed. 2 d 58 (1985).

City firefighter's conduct was protected. - A city firefighter who helped form a local firefighters union, spoke out on many issues affecting firefighters, and filed an affidavit in support of a challenge of the city's failure to validate promotion exams as required by the city personnel management policy engaged in conduct protected by the first amendment. Williams v. City of Valdosta, 689 F.2d 964 (11th Cir. 1982).

Valid governmental interest in prohibiting officials from coercing employees to contribute to their campaigns. - The government, as employer, has a legitimate interest in prohibiting public officials from using their authority to coerce their inferior employees into contributing to their campaigns. McCallum v. Hinson, 489 F. Supp. 627 (M.D. Ga. 1980).

Sheriff's authority as to appointment of deputies not limited by first amendment considerations. - Deputies who claimed that they were not rehired because of their failure to support a new sheriff when the sheriff was a candidate were not protected by the first amendment since their term of office ended with the term of the former sheriff and the newly elected sheriff had the right not to retain the deputies. Brett v. Jefferson County, 925 F. Supp. 786 (S.D. Ga. 1996), aff'd in part and vacated in part, 123 F.3d 1429 (11th Cir. 1997).

Court clerk's termination of a deputy clerk, who had advised the clerk that the deputy clerk planned to run against the clerk for the position of clerk in the upcoming election, did not violate the deputy clerk's free speech rights as guaranteed by the first amendment. Zellner v. Ham, 735 F. Supp. 1052 (M.D. Ga. 1990).

Dismissal of employee who wrote critical editorials in an employees' newsletter violated the employee's free speech rights, where there was no evidence that the employee's speech impeded the employee's ability to do work, disrupted the employee's working relationships, or affected the morale of fellow employees. Williams v. Roberts, 904 F.2d 634 (11th Cir. 1990).

7. Libel and Slander

Standard for recovery in libel by public figures. - Public officials are permitted to recover in libel only when they prove that the publication involved was deliberately falsified, or published recklessly despite the publisher's awareness of probable falsity. Investigatory failures alone are held insufficient to satisfy this standard. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975 , 18 L. Ed. 2 d 1094 (1967).

The first amendment mandates that a public figure plaintiff prove actual malice by clear and convincing evidence. Barber v. Perdue, 194 Ga. App. 287 , 390 S.E.2d 234 (1989), cert. denied, 498 U.S. 967, 111 S. Ct. 430 , 112 L. Ed. 2 d 414 (1990).

To survive a defendant's motion for summary judgment in an action for libel and slander, a plaintiff who is a public figure must produce evidence that the speaker knew the charge was false or at least had serious doubts concerning its truth. Smith v. Turner, 764 F. Supp. 632 (N.D. Ga. 1991).

Limitation on state's power to award libel damages to public officials. - U.S. Const., amend. 1 limits the state's power to award damages in a libel action brought by a public official against critics of the official's official conduct. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

Protection under the first amendment is conditioned on a lack of actual malice, i.e., knowledge on the part of the person claiming first amendment protection that a statement is false, or reckless disregard of whether or not it is false. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

Proof of actual malice. - Actual malice is not presumed, but is a matter of proof by the plaintiff. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

The constitutional standard demands that proof of actual malice be made with convincing clarity. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

No longer any need to prove actual malice. - Statements made by the press about a private individual which concern a matter of public interest are still granted a conditional privilege to the extent that such statements are not subject to "strict liability" which might otherwise be imposed at common law. However, there is no longer a constitutional requirement that the individual must prove actual malice in order to recover, and the Georgia Supreme Court adopted the standard of the majority of states, i.e., ordinary care. Diamond v. American Family Corp., 186 Ga. App. 681 , 368 S.E.2d 350 , cert. denied, 186 Ga. App. 917 , 368 S.E.2d 350 (1988).

Publications concerning matters of public interest are protected by the first amendment absent proof of actual malice. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

Misstatement of fact in discussing public figures. - Guarantees under U.S. Const., amend. 1 are applicable to misstatements of fact in discussing public figures. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

Scope of freedom of discussion. - Freedom of discussion must embrace all issues about which information is needed or appropriate to enable members of society to cope with the exigencies of their period. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

Innocently published false reports of matters of public interest entitled to protection. - The constitutional protections for speech and press preclude the application of statutes designed to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

Criminal defamation statute, O.C.G.A. § 16-11-40 , requiring a communication which "tends to provoke a breach of the peace" is vague and overbroad under U.S. Const., amends. 1 and 14. Williamson v. State, 249 Ga. 851 , 295 S.E.2d 305 (1982).

Magazine article of legitimate public interest entitled to protection. - An article in a Time, Inc., publication, focusing on Augusta, the Masters' Golf Tournament, and the public accommodations available for the many thousands of spectators, was of a legitimate public interest, and entitled to protection. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

Summary judgment for defendant absent pretrial proof of actual malice. - In an action for libel where the publisher is protected by U.S. Const., amend. 1, unless the trial court finds, on the basis of pretrial affidavits, depositions, or other documentary evidence, that the plaintiff can prove actual malice, i.e., actual knowledge of the statement's falsity or reckless disregard of the truth, it should grant summary judgment for the defendant. Summary judgment for publishers is proper where the record is devoid of genuine issues of fact as to whether the alleged defamatory statement was published with actual knowledge of its falsity or with a reckless disregard of whether it was true or false. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

Summary judgment not allowed where actual malice inferable. - A publisher's motion for summary judgment may not be allowed where facts were presented from which a jury could find that a statement was made with actual malice. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

Proper measure for determination of actual malice. - In a libel suit, reckless conduct on the part of a publisher is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the defendant's publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. Jackson v. Atlantic Monthly Co., 324 F. Supp. 1302 (N.D. Ga. 1971).

It is not sufficient to measure reckless disregard by what a reasonably prudent man would have done under similar circumstances nor whether a reasonably prudent man would have conducted further investigation. Rather, the evidence must show in a clear and convincing manner that defendant in fact entertained serious doubts as to the truth of the defendant's statements. Miller v. Woods, 180 Ga. App. 486 , 349 S.E.2d 505 (1986).

Slander per se. - Since the appellee did not include in an amended complaint a plea for special damages under O.C.G.A. § 9-11-9(g) , the defamation count of the amended complaint was limited to a claim alleging slander per se; employment of the Milkovich factors determined only that the alleged opinion was actionable as slander, but the Milkovich factors had no bearing on whether the words used constituted slander per se; statements which could have been interpreted as having the purpose of injuring the appellee's business by stating or implying that the appellee was going out of the real estate development business in which the appellee was still engaged and leaving the area were not recognizable as injurious on their face, and the appellant was entitled to summary judgment on the appellee's slander per se claim. Bellemeade, LLC v. Stoker, 280 Ga. 635 , 631 S.E.2d 693 (2006).

Public figure must demonstrate actual malice. - A public figure cannot recover for libel unless the public figure demonstrates actual malice or the publishing of a knowing falsehood with reckless disregard of the truth. Jackson v. Atlantic Monthly Co., 324 F. Supp. 1302 (N.D. Ga. 1971).

Negligence is proper standard for defamation involving private individual. - Classroom discussion regarding America's involvement in Iraq was not an action intended to thrust the professor into the forefront of controversy in any public forum, and the trial court erred in finding that the professor was a limited-purpose public figure and requiring a showing of actual malice on the part of a reporter, newspapers, and others in the professor's defamation claims; rather, the professor was a private person to whom a negligence standard applied and, as there was no claim by defendants that they were not negligent, the trial court erred in granting summary judgment to them. Sewell v. Trib Publ'ns, Inc., 276 Ga. App. 250 , 622 S.E.2d 919 (2005).

Facts concerning plaintiff in libel suit allowing court to infer that the plaintiff is a "public figure". See Jackson v. Atlantic Monthly Co., 324 F. Supp. 1302 (N.D. Ga. 1971).

Proof of actual malice required regarding statement made about one's official conduct. - The constitutional protection of freedom of the press requires that a public official not be allowed to collect damages for a defamatory falsehood relating to the official's official conduct unless the official can prove that the statement was made with "actual malice," that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Credit Bureau of Dalton, Inc. v. CBS News, 332 F. Supp. 1291 (N.D. Ga. 1971).

Publications regarding "public figures" protected. - The limited protection of U.S. Const., amend. 1 reaches publications regarding all "public figures," not just those who are public officials. Credit Bureau of Dalton, Inc. v. CBS News, 332 F. Supp. 1291 (N.D. Ga. 1971).

Burdens of proof in libel or slander actions. - For public officers and public figures to recover for damage to their reputations for libelous falsehoods, they must prove either knowing or reckless disregard of the truth. All other plaintiffs must prove at least negligent falsehood, but if the publication about them was in an area of legitimate public interest, then they too must prove deliberate or reckless error. In all actions for libel or slander, actual damages must be proved, and awards of punitive damages will be strictly limited. Credit Bureau of Dalton, Inc. v. CBS News, 332 F. Supp. 1291 (N.D. Ga. 1971).

Clear and convincing standard required of plaintiff. - In a libel suit for an allegedly defamatory falsehood, U.S. Const., amend. 1 requires that the plaintiff not be permitted to recover damages except upon a clear and convincing showing that the falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not. Credit Bureau of Dalton, Inc. v. CBS News, 332 F. Supp. 1291 (N.D. Ga. 1971).

Publications concerning matters of public interest are protected by U.S. Const., amend. 1, absent proof of actual malice. Actual malice may be inferred when the investigation for a story which is not "hot news" was grossly inadequate under the circumstances. Credit Bureau of Dalton, Inc. v. CBS News, 332 F. Supp. 1291 (N.D. Ga. 1971).

Forcing defendant to trial in itself a curtailment of press freedom. - Forcing a defendant to go to trial when the defendant has acted with the first amendment's protection can in itself be a curtailment of freedom of the press, even if the defendant should subsequently prevail on the merits. Credit Bureau of Dalton, Inc. v. CBS News, 332 F. Supp. 1291 (N.D. Ga. 1971).

Invalidity of prior restraint on suspected libel. - Just as a prior restraint may not be imposed upon material thought to be obscene without adequate safeguards, so, too, a prior restraint may not be imposed upon a suspected libel without adequate safeguards. Anderson v. Dean, 354 F. Supp. 639 (N.D. Ga. 1973).

Injunction against libel not unconstitutional. - Libel, like obscenity, is not protected by U.S. Const., amend. 1. Thus, an injunction directed against a libel is not unconstitutional. Anderson v. Dean, 354 F. Supp. 639 (N.D. Ga. 1973).

One may attain status of public figure by position alone, or by commanding a substantial amount of public interest. In some instances an individual may achieve such pervasive fame or notoriety that the individual becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects oneself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

"Public figure" defined. - "Public figures" are those persons who, though not public officials, are involved in issues in which the public has a justified and important interest and include artists, athletes, business people, dilettantes, anyone who is famous or infamous because of who the person is or what the person has done. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976); Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

Police chief is "public official". - Since a chief of police is a public official, the police commissioner's memorandum recommending the chief's reduction to patrolman must have contained false allegations which were uttered with actual malice in order for the allegations therein to be libelous. Miller v. Woods, 180 Ga. App. 486 , 349 S.E.2d 505 (1986).

Police officer is properly classified as a "public official" for purposes of libel and slander suits regarding comments on the officer's official activities. Pierce v. Pacific & S. Co., 166 Ga. App. 113 , 303 S.E.2d 316 (1983).

Sports figure involved in controversial on-field incident as a "public figure". - A sports figure who, years earlier, played for a college football team and who was personally involved in a controversial incident during one particular game, was considered a public figure, whose actions on the field sportswriters could criticize within the protective "breathing space" required by U.S. Const., amend. 1. Holt v. Cox Enters., 590 F. Supp. 408 (N.D. Ga. 1984).

Civil remedy allowed only if speaker knew or suspected statement was false. - A public figure might be allowed a civil remedy for a statement about the public figure only if the speaker knew the speaker's statement was false, or entertained serious doubts as to whether it was true or false. The defamatory statement against a public figure may be false but it is still not actionable unless it was uttered with knowledge of its falsity or in reckless disregard for the truth. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Elements of proof of constitutional malice. - Knowledge of the falsity of the statement, a reckless disregard of whether it was false or true, or a serious doubt as to its truth, is imperative to proof of malice in the constitutional sense as to statements within the immunity of U.S. Const., amend. 1. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Absent pretrial evidence of actual malice, summary judgment for defendant. - Unless the court finds, on the basis of pretrial affidavits, depositions, or other documentary evidence, that the plaintiff public figure can prove actual malice, it should grant summary judgment for the defendant. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Inapposite inquiries into question of actual malice. - The speaker's motives, though malicious in the statutory or common-law sense; what a reasonable man in the same circumstances may have said; and the lack of or inadequacy of prior investigation; all are inapplicable to the question of actual malice in the constitutional sense as to defamation of a public figure. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Actual malice is a constitutional issue to be decided initially by the trial judge vis-a-vis motions for summary judgment and directed verdict. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Whether a matter is of public or general concern is a question of law for the court. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

Whether plaintiff a public figure for court. - Although the issue of whether a plaintiff in a defamation action is a public figure poses a mixed question of law and fact, it is nevertheless one for the court, not the jury, to determine. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Use of summary judgment. - Summary judgment procedures have been determined to be particularly appropriate in defamation actions where the first amendment is applicable. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Because of the importance of free speech, summary judgment is the rule, and not the exception, in defamation cases. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

In libel cases, where no substantial danger to reputation is apparent, summary judgment is appropriate, since the press should be more carefully guarded against exposure to liability for defamation than where clearly defamatory content warns it of liability. Southard v. Forbes, Inc., 588 F.2d 140 (5th Cir.), cert. denied, 444 U.S. 832, 100 S. Ct. 62 , 62 L. Ed. 2 d 42 (1979).

Malice requires awareness of falsity or reckless disregard of falsity. - Constitutional malice does not involve motives of the speaker or publisher, though they may be wrong, but rather it is the publisher's awareness of actual or probable falsity, or the publisher's reckless disregard for their falsity. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Constitutional malice distinguished from common-law. - Malice in the constitutional sense is distinguished from common-law sense of ill will, hatred, or charges calculated to injure. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Actual malice in the sense of libeling a public official does not necessarily extend to ill will, hatred, or actions calculated to injury, for this may run afoul of the freedom of speech protected by the first amendment. Miller v. Woods, 180 Ga. App. 486 , 349 S.E.2d 505 (1986).

Evidence sufficient to prove actual malice. - To prove actual malice there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the defendant's publication. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Given that defendants, a newspaper, its editor, and a columnist, so doubted the truthfulness of their articles (alleging that a deputy sheriff beat an arrestee to death with a flashlight) that they refused to print contradictory versions of the events, actual malice could be inferred; as a result, the trial court properly denied their motions for a directed verdict and awarded compensatory and punitive damages to a deputy sheriff in the deputy's libel action. Lake Park Post, Inc. v. Farmer, 264 Ga. App. 299 , 590 S.E.2d 254 (2003), cert. denied, 543 U.S. 875, 125 S. Ct. 104 , 160 L. Ed. 2 d 125 (2004).

Absent prima facie showing of malice, burden falls on plaintiff. - If a prima facie showing is made that there did not exist actual malice in the constitutional sense, the burden is cast upon the plaintiff public figure to come forward with proof that the statements were made with knowledge that they were false or with reckless disregard of whether they were false or not. If the plaintiff fails in this duty of rebuttal, summary judgment is proper. Williams v. Trust Co., 140 Ga. App. 49 , 230 S.E.2d 45 (1976).

Right to vindicate reputation and good name. - The first amendment guarantees to an individual the right to vindicate the individual's reputation and good name in the civil courts. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

Defamed public officials and public figures can recover only upon a showing of malice, express or implied. - Private individuals cannot recover unless the defamation is the result of fault or negligence on the part of the publisher. Recovery is restricted to actual or special damages. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

Convincing clarity is the constitutional standard to proof actual malice. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

Recovery of presumed and punitive damages. - In an action for libel or slander where actual malice is shown, presumed and punitive damages are recoverable if the applicable state law permits such damages, and hence special damages need not be shown. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

Reckless disregard of truth equated with subjective awareness of probable falsity. - United States Supreme Court has equated reckless disregard of the truth with subjective awareness of probable falsity; thus, in a libel or slander action there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the defendant's publication. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

Failure to investigate. - In an action by a high school football coach against the superintendent of schools and a television station news reporter, a television news report concerning allegations of the coach's prior involvement in illegal gambling did not constitute "defamacast," slander, or false light, or invasion of privacy, even if the reporter failed to investigate adequately. Brewer v. Rogers, 211 Ga. App. 343 , 439 S.E.2d 77 (1993).

Proof of defamation relating to official conduct requires showing of actual malice. - Damages cannot be awarded to a public official for defamatory falsehood relating to official conduct in the absence of proof of actual malice or reckless disregard of whether the statement was true or false. Even where the statement is false, the plaintiff must meet this standard. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

Issue of whether plaintiff public official or figure for court. - In an action for libel or slander it is for the trial judge in the first instance to determine whether the proof shows plaintiff to be a public official. Similarly, while the issue of whether a plaintiff in a defamation action is a public figure poses a mixed question of law and fact, it is nevertheless one for the court, not the jury, to determine. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

Governmental entity barred from bringing libel action. - A governmental entity is absolutely barred from prosecuting a cause of action for libel regardless of whether the libel was against the governmental entity in its governmental or its proprietary function. Cox Enters., Inc. v. Carroll City/County Hosp. Auth., 247 Ga. 39 , 273 S.E.2d 841 (1981).

Government official may sue for libel. - An individual, albeit a government official, libeled for action taken in the official's official capacity may sue for libel. Cox Enters., Inc. v. Carroll City/County Hosp. Auth., 247 Ga. 39 , 273 S.E.2d 841 (1981).

Hospital authority cannot sue for libel. Cox Enters., Inc. v. Carroll City/County Hosp. Auth., 247 Ga. 39 , 273 S.E.2d 841 (1981).

8. Obscenity

Freedom of expression not extended to obscenity. - All citizens of the United States are guaranteed freedom of expression. This freedom does not extend to obscenity because it is utterly without redeeming social importance. Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969).

Obscenity is not entitled to protection under U.S. Const., amend. 1. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

It is firmly established that obscenity is not protected by the free speech clause of the first amendment and may be regulated by the state. Slaton v. Paris Adult Theatre I, 231 Ga. 312 , 201 S.E.2d 456 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227 , 41 L. Ed. 2 d 1173 (1974).

Free expression is rooted deeply in our way of life and cannot be suppressed through statutes which compromise the exercise of this freedom. This does not mean that one is free to express obscenity. Injunctive procedures are available to stop obscene expressions. Sanders v. State, 231 Ga. 608 , 203 S.E.2d 153 (1974).

Obscenity is not protected by the free speech clause of U.S. Const., amend. 1 and may be regulated by the state. S.S.W. Corp. v. Slaton, 231 Ga. 734 , 204 S.E.2d 155 (1974).

Private possession of obscene material is protected. - U.S. Const., amends. 1 and 14 prohibit making mere private possession of obscene material a crime. Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243 , 22 L. Ed. 2 d 542 (1969).

Obscenity is not within the protected pale of U.S. Const., amends. 1 and 14. However, the private possession of obscene materials is protected. Gable v. Jenkins, 309 F. Supp. 998 (N.D. Ga. 1969), aff'd, 397 U.S. 592, 90 S. Ct. 1351 , 25 L. Ed. 2 d 595 (1970).

State and federal governments may not constitutionally prohibit mere possession of admittedly obscene material in the privacy of one's own home. United States v. Thevis, 320 F. Supp. 713 (N.D. Ga. 1970).

Commerce in obscene material is unprotected by any constitutional doctrine of privacy. - The states have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including so-called "adult" theaters from which minors are excluded. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628 , 37 L. Ed. 2 d 446 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227 , 41 L. Ed. 2 d 1173 (1974).

The sale and delivery of obscene material to willing adults is not protected under U.S. Const., amend. 1. Slaton v. Paris Adult Theatre I, 228 Ga. 343 , 185 S.E.2d 768 (1971), vacated on other grounds, 413 U.S. 49, 93 S. Ct. 2628 , 37 L. Ed. 2 d 446, on remand, 231 Ga. 312 , 201 S.E.2d 456 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227 , 41 L. Ed. 2 d 1173 (1974).

Obscene films. - No reason exists why the sale and delivery of films should be immune to state control any more than the sale and delivery of multiple copies of an obscene book, pamphlet, or magazine. Slaton v. Paris Adult Theatre I, 228 Ga. 343 , 185 S.E.2d 768 (1971), vacated on other grounds, 413 U.S. 49, 93 S. Ct. 2628 , 37 L. Ed. 2 d 446, on remand, 231 Ga. 312 , 201 S.E.2d 456 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227 , 41 L. Ed. 2 d 1173 (1974).

Obscenity as lacking redeeming social importance. - Implicit in the history of the first amendment is rejection of obscenity as utterly without redeeming social importance. Evans Theatre Corp. v. Slaton, 227 Ga. 377 , 180 S.E.2d 712 , cert. denied, 404 U.S. 950, 92 S. Ct. 281 , 30 L. Ed. 2 d 267 (1971).

The Constitution offers no protection to pornography without redeeming literary or artistic qualities. Sokolic v. Ryan, 304 F. Supp. 213 (S.D. Ga. 1969).

Even obscene literature entitled to procedural safeguards. - Obscenity is not protected by U.S. Const., amend. 1; but this does not mean that literature which is in fact obscene is not entitled to the same procedural safeguards that are thrown around nonobscene materials. Sokolic v. Ryan, 304 F. Supp. 213 (S.D. Ga. 1969).

Portrayal of sex not in itself sufficient reason to deny procedural safeguards. - Portrayal of sex, e.g., in art, literature, and scientific works, is not in itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Public policy permits state regulation or prohibition of obscene materials. - The states have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize the state's right to maintain a decent society. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628 , 37 L. Ed. 2 d 446 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227 , 41 L. Ed. 2 d 1173 (1974).

Obscene material not protected. - Devices "designed or marketed as useful primarily for the stimulation of human genital organs," are prohibited from distribution under O.C.G.A. § 16-12-80 , and are not protected expressions under either U.S. Const., amend. 1 or the free speech clause of the Georgia Constitution. Morrison v. State, 272 Ga. 129 , 526 S.E.2d 336 (2000).

Regulation of obscenity must ensure against infringement of protected expression. - What is obscene and what is not obscene is sometimes separated by a line which is finely drawn. Accordingly, U.S. Const., amend. 14 requires that regulation by the states of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969).

While freedom of expression does not extend to obscenity, state regulation of obscenity must conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. Central Agency, Inc. v. Brown, 306 F. Supp. 502 (N.D. Ga. 1969).

Obscenity cannot be defined by local community standard. - Definition of obscenity simply cannot be so reduced to a standard applied by a particular local community. Feldschneider v. State, 127 Ga. App. 745 , 195 S.E.2d 184 (1972).

"Community" defined. - The term "community" means, not the minute local community, but society at large, that is, the public, or people in general. Feldschneider v. State, 127 Ga. App. 745 , 195 S.E.2d 184 (1972).

Children are not to be included as part of the "community" as that term relates to obscene materials. - A jury conscientiously striving to define the relevant community of persons, the "average person," by whose standards obscenity is to be judged would reach a much lower "average" when children are part of the equation than if they restricted their consideration to the effect of allegedly obscene materials on adults. United States v. Bush, 582 F.2d 1016 (5th Cir. 1978).

Obscenity as defined by society at large. - The concept of obscenity is the meaning applied by society at large which may vary "from time to time," but "not from county to county, or town to town." Feldschneider v. State, 127 Ga. App. 745 , 195 S.E.2d 184 (1972).

Foul words do not, standing alone, constitute obscene expression. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Lewd and obscene utterances are not an essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628 , 37 L. Ed. 2 d 446 (1973).

Test for obscenity. - The test for obscenity is whether or not to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. Feldschneider v. State, 127 Ga. App. 745 , 195 S.E.2d 184 (1972); Good v. State, 127 Ga. App. 775 , 195 S.E.2d 264 (1972).

The United States Supreme Court has set down three basic guidelines for determining whether material could be judged obscene and therefore regulated by the state: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981).

A particular issue of a self-styled "magazine for men" fell within O.C.G.A. § 16-12-80 (distributing obscene material) in that: (1) It contained a large number of photographs of women in various degrees of nudity, depicting sexual conduct and lewd exhibition in a patently offensive way; (2) the magazine's overwhelming effect, obviously planned, was to create sexual excitement and stimulation, predominantly appealing, as a whole, to the prurient interest, even though there were items that concerned topics other than sex; and (3) the magazine, taken as a whole, had no serious literary, artistic, political, or scientific value, although there may have been some slight literary, artistic, and political value to a small number of items. Penthouse Int'l, Ltd. v. Webb, 594 F. Supp. 1186 (N.D. Ga. 1984).

Every element of three-prong obscenity test must be met. - When examining a publication to determine whether it is obscene, the three-prong test is conjunctive so every element of the test must be met before a publication may be adjudicated obscene. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Reasons for judicial finding of material as obscene. - Courts may find material obscene where the dominant theme of the material taken as a whole appeals to a prurient interest in sex, where the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matter, and where the material is utterly without redeeming social value. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971); Feldschneider v. State, 127 Ga. App. 745 , 195 S.E.2d 184 (1972); Gornto v. McDougall, 336 F. Supp. 1372 (S.D. Ga. 1972), appeal dismissed, 482 F.2d 361 (5th Cir. 1973).

Obscene material as appealing to prurient interest. - Obscene material is material which deals with sex in a manner appealing to the prurient interest, i.e., material having a tendency to excite lustful thoughts. Whisenhunt v. State, 156 Ga. App. 583 , 275 S.E.2d 82 (1980).

Book or magazine must be judged as a whole to determine obscenity. - An arguably obscene book or magazine is going to be published or banned as a discrete unit, and must be judged as a "whole" to determine whether it is obscene. A magazine is a "whole" within the meaning of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607 , 37 L. Ed. 2 d 419 (1973), and it must be judged as such. Penthouse Int'l, Ltd. v. McAuliffe, 454 F. Supp. 289 (N.D. Ga. 1978).

In determining whether a work is obscene, the basic guidelines for the trier of facts are whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Penthouse Int'l, Ltd. v. McAuliffe, 454 F. Supp. 289 (N.D. Ga. 1978); Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

In considering whether an allegedly obscene work, taken as a whole, lacks serious literary, artistic, political, or scientific value, each magazine must be treated as a separate work that is to be taken as a whole. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Warrant seeking videotapes. - Trial court properly suppressed videotapes that were seized from defendant's home during the execution of a search warrant, as the description in the warrant that the items sought were videotapes that were instruments used in the crimes of molesting and sexually exploiting children did not meet the particularity requirements of U.S. Const., amend. 4 and Ga. Const. 1983, Art. I, Sec. I, Para. XIII, especially in light of the fact that the videotapes involved activity protected by U.S. Const., amend. 1, where there was no evidence of any videotape activity involving the victim, and the warrant did not elaborate on what types of videotapes were to be seized, leaving that determination solely to the discretion of the officers, which amounted to an impermissible general warrant; circumstances may make an exact search warrant description of instrumentalities a virtual impossibility and, in those circumstances, the searching officer can only be expected to describe the generic class of items sought, but a warrant authorizing the seizure of "videotapes" with nothing more does not pass constitutional muster. State v. Kramer, 260 Ga. App. 546 , 580 S.E.2d 314 (2003).

Simulated sexual activity as obscene. - Fact that sexual activity depicted by a film is simulated does not prevent it from being obscene. Slaton v. Paris Adult Theatre I, 228 Ga. 343 , 185 S.E.2d 768 (1971), vacated on other grounds, 413 U.S. 49, 93 S. Ct. 2628 , 37 L. Ed. 2 d 446, on remand, 231 Ga. 312 , 201 S.E.2d 456 (1973), cert. denied, 418 U.S. 939, 94 S. Ct. 3227 , 41 L. Ed. 2 d 1173 (1974).

Former Code 1933, § 26-2101 (see O.C.G.A. § 16-12-80 ), was not violative of U.S. Const., amends. 1, 4, 5, 9, and 14 on the ground that the constitutional right to mere possession of obscene material necessarily implies the right to purchase such material and, hence, the right of others to distribute it. Gornto v. State, 227 Ga. 46 , 178 S.E.2d 894 (1970).

Former Code 1933, § 26-2101 (see O.C.G.A. § 16-12-80 ) is constitutionally sound against attacks alleging amendment violations. Brown v. State, 156 Ga. App. 201 , 274 S.E.2d 572 (1980).

Former Code 1933, § 26-2610 (see O.C.G.A. § 16-11-39 ) was not unconstitutional as a violation of U.S. Const., amends. 1 and 14. Grantham v. State, 151 Ga. App. 707 , 261 S.E.2d 445 , aff'd, 244 Ga. 775 , 262 S.E.2d 777 (1979).

Statute prohibiting sale or display to minors deemed harmful. - O.C.G.A. §§ 16-12-102 - 16-12-104 , which make it a criminal offense to sell to minors or to display in a place accessible to minors any material deemed "harmful to minors", produced only a slight burden on adults' access to protected material and fully comported with the first amendment. American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), cert. denied, 500 U.S. 941, 111 S. Ct. 2237 , 114 L. Ed. 2 d 479 (1991).

Statute prohibiting admission of persons between ages of 18 and 21 to sexually explicit performances. - O.C.G.A. § 16-12-103(b)(2), prohibiting the admission of persons between 18 and 21 years of age to premises where sexually explicit performances are exhibited, is unconstitutional as an infringement on free speech rights without proof of a compelling state interest justifying the application of such restriction. State v. Cafe Erotica, Inc., 269 Ga. 486 , 500 S.E.2d 574 (1998).

Attack on constructive knowledge statute as violative of constitutional requirements for scienter not meritorious. - Constitutional attack upon former Code 1933, § 26-2101 (see O.C.G.A. § 16-12-80 ) that the constructive knowledge as found therein is a violation of the constitutional requirements as to scienter was not meritorious. Showcase Cinemas, Inc. v. State, 156 Ga. App. 225 , 274 S.E.2d 578 (1980), cert. dismissed, 451 U.S. 934, 101 S. Ct. 2037 , 68 L. Ed. 2 d 343 (1981).

Statute prohibiting certain nude and sexual conduct on premises where alcoholic beverages are sold or dispensed for consumption on the premises infringes upon protected speech and must fall as an improper exercise of the state's police power. Harris v. Entertainment Sys., 259 Ga. 701 , 386 S.E.2d 140 (1989).

Although a state may have a certain amount of its police power restored to it under the twenty-first amendment that would otherwise be limited under the first amendment, the expression involved in an establishment offering sexually-oriented communication where alcohol is served is still within the purview of the first amendment, and is still protected by Georgia's free expression guarantees. Because Georgia has no constitutional equivalent to the twenty-first amendment, the state's police power, though possibly not limited under the U.S. Constitution, is limited by Georgia's Constitution. Harris v. Entertainment Sys., 259 Ga. 701 , 386 S.E.2d 140 (1989).

Authority to regulate alcoholic beverages where nudity is exhibited. - The provisions of Ga. Const. 1983, Art. III, Sec. VI, Para. VII, giving the state authority to regulate alcoholic beverages and to delegate authority to counties and municipalities to regulate the exhibition of nudity in connection with the sale or consumption of alcoholic beverages, did not violate the U.S. Const., amend. 1. Goldrush II v. City of Marietta, 267 Ga. 683 , 482 S.E.2d 347 (1997), cert. denied, 522 U.S. 818, 118 S. Ct. 70 , 139 L. Ed. 2 d 31 (1997).

County ordinance prohibiting nudity in drinking establishments. - Construing an exception in a county ordinance prohibiting nude dancing on premises selling alcohol as requiring that a business be found to be "mainstream" before the exception applied, constituted an improper prior restraint on protected speech. S.J.T., Inc. v. Richmond County, 215 Ga. App. 73 , 449 S.E.2d 868 (1994).

County ordinance regulating adult entertainment establishments. - Where there was no evidence that, before passing an ordinance to regulate adult entertainment establishments, the county commission considered and relied upon adverse secondary effects of sexually explicit businesses, the ordinance could not pass constitutional muster. Chambers v. Peach County, 266 Ga. 318 , 467 S.E.2d 519 (1996).

City ordinance regulating adult entertainment establishments. - It is error to dismiss, for failure to state a claim, constitutional challenges to a city ordinance prohibiting private modeling sessions or other sexual displays in one-on-one sessions and close mingling between customers and employees of adult entertainment establishments. Quetgles v. City of Columbus, 264 Ga. 708 , 450 S.E.2d 677 (1994), cert. denied, 514 U.S. 1083, 115 S. Ct. 1794 , 131 L. Ed. 2 d 722 (1995).

Nightclub's First Amendment challenge to a city's ordinances restricting the sale of alcohol in nude dancing establishments was rejected because under intermediate scrutiny, the ordinances furthered important government interests of preserving the quality of urban life and reducing criminal activity. Maxim Cabaret, Inc. v. City of Sandy Springs, Ga. , 816 S.E.2d 31 (2018).

"Total nude dancing" municipal ordinance unconstitutional. - Municipal ordinance prohibiting total nude dancing and placing restrictions on partial nude dancing was an unconstitutional infringement on protected expression as overly broad and void for vagueness. Pel Assoc., Inc. v. Joseph, 262 Ga. 904 , 427 S.E.2d 264 (1993).

City ordinance prohibiting nudity in drinking establishments. - Municipal ordinance's distinction between mainstream and non-mainstream performances was not constitutionally impermissible; the twenty-first amendment outweighs any first amendment interest in nude dancing. Top Shelf, Inc. v. Mayor & Aldermen, 840 F. Supp. 903 (S.D. Ga. 1993).

Constitutionality of a city ordinance prohibiting nudity in establishments serving alcoholic beverages was established where it was shown to further an important government interest by the city's proof of reliance on specific studies showing a correlation between adult establishments and crime, and proof that the motivating factor for passage of the ordinance was crime prevention. World Famous Dudley's Food & Spirits, Inc. v. City of College Park, 265 Ga. 618 , 458 S.E.2d 823 (1995).

A city ordinance adopted pursuant to the authority of Ga. Const. 1983, Art. III, Sec. VI, Para. VII, and providing that a liquor license would not be issued for locations where adult entertainment licenses were required did not violate constitutional free speech guarantees. Goldrush II v. City of Marietta, 267 Ga. 683 , 482 S.E.2d 347 (1997), cert. denied, 522 U.S. 818, 118 S. Ct. 70 , 139 L. Ed. 2 d 31 (1997).

Restrictive adult entertainment ordinance constitutional. - County ordinance restricting adult entertainment establishments offering nude dancing and alcohol was sufficiently narrow in its descriptions of prohibited attire and conduct to pass constitutional challenges for "overbreadth". S.J.T., Inc. v. Richmond County, 263 Ga. 267 , 430 S.E.2d 726 (1993).

Interlocutory restraint of obscene material constitutional. - Interlocutory judicial restraint of obscene material, with adequate provision being made that claims can proceed to final judgment at the earliest practicable date, is not violative of first amendment rights. S.S.W. Corp. v. Slaton, 231 Ga. 734 , 204 S.E.2d 155 (1974).

Arrest and seizure of obscene materials without constitutionally sufficient warrant is unreasonable and the evidence is not admissible. Wood v. State, 144 Ga. App. 236 , 240 S.E.2d 743 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 265 , 58 L. Ed. 2 d 247 (1978).

Proper limitation of injunction order against obscene film. - Where, after viewing a film, a superior court judge finds probable cause that the film is obscene and enjoins the defendant from exhibiting or showing the film in public within the jurisdiction of the court, the injunction feature of the order should be limited so as to provide that it shall continue only "until further order of the court." Walter v. Slaton, 227 Ga. 676 , 182 S.E.2d 464 , cert. denied, 404 U.S. 1003, 92 S. Ct. 560 , 30 L. Ed. 2 d 557 (1971).

Public officials may impose a prior restraint upon obscene motion pictures. Southeastern Promotions, Ltd. v. City of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971).

Unconstitutional system of prior restraint. - Unconstitutional system of prior restraint with respect to certain men's magazines was engaged in by local law enforcement authorities where such authorities did not obtain a warrant from a neutral and detached magistrate based upon a threshold determination of obscenity before making a series of arrests of dealers and distributors on charges that their dealings in such magazines violated obscenity laws. Penthouse Int'l, Ltd. v. McAuliffe, 436 F. Supp. 1241 (N.D. Ga. 1977), aff'd in part and rev'd in part on other grounds, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Officer's activities constituted informal system of prior restraint. - Where officer's activities constituted a calculated scheme of warrantless arrests and harassing visits to retailers of publications, the substance of the procedures resulted in a "constructive seizure" of the magazines from the shelves of the retail establishments and created an informal system of prior restraint in violation of U.S. Const., amends. 1 and 14. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Reasons for requirement of prior adversary judicial hearing. - The requirement that there be a prior adversary judicial hearing on the question of obscenity before a seizure does not mean that courts, either federal or state, desire to protect obscenity. It does mean that the Supreme Court of the United States has decided that lest the nonobscene and the constitutionally protected be suppressed it is better that some judicial officer first after hearing competent evidence judicially determine that the challenged matter is obscene before its seizure. Nor is it any reflection upon law enforcement officers to suggest that a judicial officer trained in the process of weighing evidence and making decisions is better equipped than they to pass upon the important and sometimes difficult question of obscenity. This is so because the separation of legitimate from illegitimate speech calls for sensitive tools. Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969).

Judicial determination of obscenity necessary prior to seizure. - There must be some judicial determination of obscenity before a seizure or "constructive seizure" may occur. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Any seizure of allegedly obscene film should be preceded by state court finding of obscenity in an adversary judicial hearing. A prior adversary judicial hearing designed to focus searchingly on the question of obscenity must be held before the state may seize any motion picture film. Central Agency, Inc. v. Brown, 306 F. Supp. 502 (N.D. Ga. 1969).

Seizure and confiscation of materials in advance of adversary hearing on issue of obscenity is now prohibited by U.S. Const., amend. 1. Sokolic v. Ryan, 304 F. Supp. 213 (S.D. Ga. 1969).

Criminal prosecution or threat thereof prior to adversary determination of obscenity constitutes an unconstitutional burden upon the freedom of expression. Sokolic v. Ryan, 304 F. Supp. 213 (S.D. Ga. 1969).

Any criminal prosecution prior to an adversary hearing without plaintiff having the subsequent opportunity to refrain from selling materials determined to be obscene is violative of the plaintiff's rights under U.S. Const., amend. 1. Sokolic v. Ryan, 304 F. Supp. 213 (S.D. Ga. 1969).

Police officers may not indiscriminately seize as contraband items they consider obscene publications without adequate safeguards to assure constitutional protection to possible nonobscene material. The owner of the property must be afforded an adversary hearing as to obscenity before the warrant issues to seize the obscene material. State v. Smalley, 138 Ga. App. 747 , 227 S.E.2d 488 (1976); Lee v. City of Rome, 866 F. Supp. 545 (N.D. Ga. 1994).

No prior restraint where warrantless arrest without seizure made. - There is no prior restraint of the freedom of expression by any unlawful state-initiated or state-enforced restraint where a warrantless arrest is made but no obscene materials are seized. Wood v. State, 144 Ga. App. 236 , 240 S.E.2d 743 (1977), cert. denied, 439 U.S. 899, 99 S. Ct. 265 , 58 L. Ed. 2 d 247 (1978).

Defendant must have notice as to material sought to be seized. - The government-instituted proceeding must place the defendant exhibitor or seller on notice as to what film or publication the defendant has exhibited, sold, or held for sale that the government seeks to seize or suppress. Sanders v. State, 231 Ga. 608 , 203 S.E.2d 153 (1974).

Seizure of film illegal absent prior hearing. - It is illegal for officers to seize a movie film unless and until there has been held a prior adversary judicial hearing upon the question of obscenity. Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969).

Presumptively protected material must be afforded greater procedural safeguards before seizure. - Retailer or distributor of presumptively protected material must be afforded greater procedural safeguards before seizure or "constructive seizure" may take place. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

When dealing in area of presumptively protected material, greater procedural safeguards must be afforded before occurrence of "constructive seizure"; this usually involves the requirement of a judicial determination of some type by a neutral, detached magistrate either before or immediately after the seizure of allegedly obscene material. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Neutral magistrate must find probable cause before warrant may issue. - The Constitution at a minimum apparently requires the imposition of a neutral, detached magistrate in the procedure to make an independent judicial determination of probable cause prior to issuing an arrest warrant or some other warrant authorizing the seizure of allegedly obscene material to be used as evidence. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Merely conclusory warrant prima facie insufficient. - A warrant was clearly insufficient on its face to show probable cause if it merely stated the bold conclusion of the affiant district attorney that the defendant exhibited two named films which were obscene material. Good v. State, 127 Ga. App. 775 , 195 S.E.2d 264 (1972).

Admission in evidence of motion picture seized under insufficient warrant erroneous. - Admission in evidence of allegedly obscene motion picture films seized under the authority of a warrant issued by a justice of the peace on a police officer's affidavit giving the films' titles, and stating that the officer had determined from personal observation of the films and of the theater's billboard that they were obscene, was erroneous as the issuance of the warrant without the justice of the peace's inquiry into the factual basis for the officer's conclusions fell short of constitutional requirements demanding necessary sensitivity to freedom of expression. Good v. State, 127 Ga. App. 775 , 195 S.E.2d 264 (1972).

The proceeding must provide for a prompt and final judicial determination of the obscenity of the film or material. - Temporary restraints to preserve the status quo in this regard are authorized after an adversary hearing and when followed by a prompt final determination of obscenity. Sanders v. State, 231 Ga. 608 , 203 S.E.2d 153 (1974).

Necessity for prompt judicial review in obscenity cases. - There is a necessity for early and definitive judicial review in matters involving rights under U.S. Const., amend. 1, particularly in obscenity cases. United States v. One Carton Containing Quantity of Paperback Books, 324 F. Supp. 957 (N.D. Ga. 1971).

A judge may act as a finder of fact in civil proceedings involving obscenity. Penthouse Int'l, Ltd. v. McAuliffe, 454 F. Supp. 289 (N.D. Ga. 1978).

Burden of proof of obscenity on government. - In each case, the government must institute judicial proceedings whereby the material or film is seized or suppressed, and it must further bear the burden of proof of the obscenity of the material or film. Sanders v. State, 231 Ga. 608 , 203 S.E.2d 153 (1974).

Charge to jury proper and not burden-shifting. - In obscenity case, it was not error to charge that "every person of sound mind and discretion is presumed to intend the natural and probable consequences of their act, but that presumption may be rebutted." Such charge is not burden-shifting and does not contravene Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 , 61 L. Ed. 2 d 39 (1979), where the jury is also instructed such presumption may be rebutted. Whisenhunt v. State, 156 Ga. App. 583 , 275 S.E.2d 82 (1980).

Charge by court as to constructive knowledge of obscene material proper. - In trial of case involving distribution of obscene material, charge by court on constructive knowledge as contained in former Code 1933, § 26-2101 (see O.C.G.A. § 16-12-80 ) was not subject to complaint that it shifts burden of proof and relieved the state of proving every essential element of the crime in violation of U.S. Const., amends. 1 and 14, where the front cover of the magazine would put anyone on notice as to its contents. Spry v. State, 156 Ga. App. 74 , 274 S.E.2d 2 (1980).

Court did not err in charging jury on constructive knowledge of obscene nature of contents of magazines which defendants possessed. Whisenhunt v. State, 156 Ga. App. 583 , 275 S.E.2d 82 (1980).

Jury may consider setting in which publication presented to public. - To assist the jury in determining the issue of obscenity, the jury may consider the setting in which the publication was presented to the public, and view the publications against a background of commercial exploitation of erotica solely for the sake of their prurient appeal. Whisenhunt v. State, 156 Ga. App. 583 , 275 S.E.2d 82 (1980).

Jury may consider creation, promotion, and dissemination of materials. - To aid jury in its determination of whether materials are obscene, methods of their creation, promotion, or dissemination are relevant. Whisenhunt v. State, 156 Ga. App. 583 , 275 S.E.2d 82 (1980).

Finding of obscenity based on pandering. - The jury could find the material obscene if they found the material was pandered, that is, the distribution was a "commercial exploitation of erotica solely for the sake of their prurient appeal." This phrase has come to be known as the "Ginzburg pandering instruction." Whisenhunt v. State, 156 Ga. App. 583 , 275 S.E.2d 82 (1980).

Sufficient evidence for triggering "Ginzburg pandering instruction." - The government need not offer extensive evidence of the methods of production, editorial goals, if any, or methods of operation in order for the evidence to be sufficient to trigger the "Ginzburg pandering instruction." Whisenhunt v. State, 156 Ga. App. 583 , 275 S.E.2d 82 (1980).

No harmful error where "acceptance" used for "tolerance" in charge to jury. - Absent a clear indication from either the Georgia Supreme Court or the United States Supreme Court that the term "acceptance," when charged to a jury in the context of instructions concerning the difficult legal concept of "community standards," impermissibly expands the parameters of the standards announced in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607 , 37 L. Ed. 2 d 419 (1973) beyond the scope contemplated in the decisions of the United States Supreme Court, there is no harmful error predicated solely upon the use of the word "acceptance" in lieu of the word "tolerance" in obscenity prosecutions. Brown v. State, 156 Ga. App. 201 , 274 S.E.2d 572 (1980).

Jury should see film before judging it obscene. - It is inconceivable how a jury could apply an obscenity test to a film without having seen it, i.e., make a sophisticated value judgment on the libidinous effect of a visual experience, without having had the experience. Good v. State, 127 Ga. App. 775 , 195 S.E.2d 264 (1972).

Appellate courts must review independently the constitutional fact of obscenity. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Refrainment of federal court from interfering in state case by requiring release of unlawfully seized evidence. - Where allegedly obscene films and projectors are seized as evidence of a violation of former Code 1933, § 26-2101 (see O.C.G.A. § 16-12-80 ) and the case is pending in the state courts, the federal courts will not interfere with the pending case by requiring release of the contraband as an unconstitutional seizure. G & E Bus. Servs., Inc. v. McAuliffe, 480 F. Supp. 239 (N.D. Ga. 1979).

Municipality bound to issue business licenses and then suppress sale of obscene materials. - After applicants complied with all the requirements necessary for obtaining business licenses to sell materials that are protected by U.S. Const., amend. 1, a municipality must issue the licenses applied for and thereafter suppress the sale of pornographic materials through proper proceedings that will not damage the doctrine of prior restraint. Mayor of Savannah v. TWA, Inc., 233 Ga. 885 , 214 S.E.2d 370 (1975).

Obscene language directed at police officer. - Language such as calling a police officer a "[goddamn] liar" and telling the officer to "[fuck off]" is not protected by the first amendment. Evans v. State, 188 Ga. App. 347 , 373 S.E.2d 52 (1988).

When an arrestee allegedly called an officer "a fucking asshole" and was arrested, the officer was properly denied summary judgment based on qualified immunity as to the arrestee's claims under the Fourth Amendment because the officer did not have arguable probable cause to arrest the arrestee for disorderly conduct under Georgia law since the arrestee was not shouting and did not appear to be a danger to anyone as the arrestee walked away. Merenda v. Tabor, F.3d (11th Cir. Feb. 1, 2013).

Publications obscene as matter of law and fact. - Where publications depict acts of natural and aberrational sexual conduct, including the participants' genitals, solely for their own lewd and lascivious purpose and there is no discernible meaning other than pornographic, these magazines are obscene as a matter of law and fact. The magazines are not protected expression under U.S. Const., amends. 1 and 14. Whisenhunt v. State, 156 Ga. App. 583 , 275 S.E.2d 82 (1980).

Defendant's films statutorily obscene and not protected by first amendment. - Where defendant's films amounted to nothing more than a public portrayal of hard core sexual conduct, for its own sake, and for the ensuing commercial gain, the films were not protected by U.S. Const., amend. 1 and were obscene within the definition of former Code 1933, § 26-2101(b) (see O.C.G.A. § 16-12-80 ). Clayton v. State, 149 Ga. App. 374 , 254 S.E.2d 495 (1979).

Motel owner's interest in providing obscene films to guests at the motel in the privacy of their own rooms was not protected by the first amendment, notwithstanding the possibility that the people receiving the objects of the owner's commerce might be shielded from state regulation in their use of the obscene materials. Majmundar v. Veline, 256 Ga. 8 , 342 S.E.2d 682 (1986).

Videotape viewing not protected in child molestation prosecution. - In a prosecution for child molestation based on defendant's forcing a minor to watch sexually explicit videotapes with the defendant, the defendant's claimed first amendment right to possess and view the tapes was not a defense. Stroeining v. State, 226 Ga. App. 410 , 486 S.E.2d 670 (1997).

Statute regulating profane words on bumper stickers unconstitutionally restricts freedom of expression as guaranteed by the first and fourteenth amendments of the United States Constitution and by the Georgia Constitution. Cunningham v. State, 260 Ga. 827 , 400 S.E.2d 916 (1991).

9. Political Activities

First amendment freedoms extend to political activities such as running for elective office; and state election practices must therefore serve legitimate state interest narrowly and fairly to avoid obstructing and diluting these fundamental liberties. Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368 , 74 L. Ed. 2 d 504 (1982).

A political speech would be subject to first amendment protections. Clarkson v. IRS, 678 F.2d 1368 (11th Cir. 1982), cert. denied, 481 U.S. 1031, 107 S. Ct. 1961 , 95 L. Ed. 2 d 533 (1987).

Restricting political speech. - Restrictions upon political speech should not lightly be imposed, and the public should generally be able to speak on public issues free from fear of resulting criminal or civil penalties. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

Ordinance restricting political activities of public employees subject to overbreadth doctrine. - An ordinance restricting political activity, despite the fact that it applies to public employees, must be tested by traditional overbreadth principles. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

Public employee to be treated as member of public where activities unrelated to duties. - Where the political activities of a public employee are unrelated to the performance of the employee's duties, the employee is to be treated, for purposes of adjudicating the employees rights under U.S. Const., amend. 1, as a member of the general public. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

City ordinance restricting political activities of firemen overbroad and vague. - A city ordinance proscribing city firemen from "contributing any money to any candidate, soliciting votes, or prominently identifying themselves in a political race with or against any candidate for office" is an overbroad and unconstitutionally vague restriction upon the firemen's rights under U.S. Const., amend. 1, despite its application to public employees. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).

Policy restricting wearing of police uniforms at commission meetings. - Applying the Schacht standard rather than the Pickering standard, a federal district court held that a county's policy restricting expressive conduct, i.e., the wearing of police uniforms by officers speaking at county commission meetings, which had been enforced evenhandedly and in a content-neutral fashion, did not unconstitutionally abridge the First Amendment's free speech guarantee, either facially or as applied. Local 491 v. Gwinnett County, 510 F. Supp. 2d 1271 (N.D. Ga. 2007).

Standing to challenge election ballot access. - In a suit filed by a number of political organizations and individuals seeking access to the general election ballot, the plaintiffs demonstrated "some actual or threatened injuries" and, thus, had standing, although they were unable to comply with the election law provisions restricting ballot access. There was, however, an insufficient factual record to carry out a constitutional analysis. Specifically, the state failed to introduce evidence to justify both the interests it asserted and the burdens it imposed on those seeking ballot access. Bergland v. Harris, 767 F.2d 1551 (11th Cir. 1985).

Right to appear on ballot. - The right to appear on a general election ballot is constitutionally favored, but less than fundamental. Duke v. Cleland, 783 F. Supp. 600 (N.D. Ga. 1992), aff'd, 954 F.2d 1526 (11th Cir. 1992).

Redistricting attempting to interfere with right of school board member to hold office or vote. - While voting rights and the right to run for public office are core constitutional rights, an attempted deprivation of constitutional or statutory rights is not the same as an actual deprivation. Furthermore, incurring legal fees to vindicate rights does not itself establish that those rights were violated. Thus, plaintiff, a school board member, pursing attempted violations of plaintiff's right to run and hold a designated seat in a predefined district, could not succeed as an injunction in another lawsuit and failure of preclearance interfered with the implementation of the efforts of defendants, the local voting registrars; since the attempt to deprive plaintiff of plaintiff's constitutional rights did not succeed, neither can plaintiff's lawsuit succeed. Cook v. Randolph County, 573 F.3d 1143 (11th Cir. 2009).

Role of Secretary of State. - The Georgia Secretary of State's preparation of the ballot for Georgia without making substantive determinations (which are left to the parties) is not state action. Duke v. Cleland, 783 F. Supp. 600 (N.D. Ga. 1992), aff'd, 954 F.2d 1526 (11th Cir. 1992).

Presidential candidate selection committee. - State statute creating the presidential candidate selection committee, by identifying three logically representative members of each party to serve on the committee, and by providing a check against arbitrariness by allowing only one member of the party on the committee to override the unanimous decision of the committee, is narrowly tailored to advance the interests of the state in conducting orderly and efficient elections and allowing the parties to choose their candidates, and is not in violation of the first and fourteenth amendments. Duke v. Cleland, 884 F. Supp. 511 (N.D. Ga. 1995), aff'd, 87 F.3d 1226 (11th Cir. 1996).

State may disenfranchise voters convicted of felony. - State may constitutionally disenfranchise otherwise qualified voters because they have been convicted of a felony since the state has a compelling interest in protecting the integrity of its electoral process. Kronlund v. Honstein, 327 F. Supp. 71 (N.D. Ga. 1971).

Submitting package bond issue to voters. - In requesting the county board of commissioners to submit a package bond issue to the voters instead of three separate bond issues, the county board of education did not time and structure the school bond referendum with the intent of diluting minority voting strength and manipulating the minority vote in violation of U.S. Const., amends. 1, 13, 14, and 15. Lucas v. Townsend, 783 F. Supp. 605 (M.D. Ga.), aff'd, 967 F.2d 549 (11th Cir. 1992).

Exemption of political lobbying of government officials from antitrust laws. - Where the evidence was insufficient to support application of the coconspirator exception to the Noerr-Rennington doctrine, immunizing genuine political lobbying of government officials from antitrust laws, defendant chiropractic board of examiner's appearances and other communications to the state chiropractic licensing boards qualified as protected petitioning activity and could not serve as the basis for antitrust liability. Sherman College v. American Chiropractic Ass'n, 654 F. Supp. 716 (N.D. Ga. 1986), aff'd, 813 F.2d 349 (11th Cir.), cert. denied, 484 U.S. 854, 108 S. Ct. 160 , 98 L. Ed. 2 d 114 (1987).

Determination of state's delegation to national party convention. - A political party's choice among the various ways of determining the makeup of a state's delegation to the party's national convention is protected by the Constitution. Stuckey v. Richardson, 188 Ga. App. 147 , 372 S.E.2d 458 , cert. denied, 188 Ga. App. 912 , 372 S.E.2d 458 (1988).

Dispute concerning the internal affairs of the Georgia Republican Party was a nonjusticiable controversy which had to be resolved by the 1988 National Republican Convention rather than by the Georgia courts. Stuckey v. Richardson, 188 Ga. App. 147 , 372 S.E.2d 458 , cert. denied, 188 Ga. App. 912 , 372 S.E.2d 458 (1988).

Campaign and opinion polling near polling place. - O.C.G.A. § 21-2-414(a) , which restricts election campaign activities and public opinion polling within 250 feet (changed to 50 feet by the 1989 amendment) of a polling place, infringes upon the first amendment's protection of political speech; however, a 25-foot limit on campaign and polling activities withstands constitutional scrutiny, and enforcement beyond that limit would be permanently enjoined. NBC v. Cleland, 697 F. Supp. 1204 (N.D. Ga. 1988).

Activities deemed "contributions to political campaign" protected from legislative chilling. - Activities in the exercise of first amendment freedoms may not be harshly channeled and controlled simply by being deemed "contributions to a political campaign," for these activities are constitutionally protected from significant legislative chilling. Fortson v. Weeks, 232 Ga. 474 , 208 S.E.2d 68 (1974).

Soliciting signatures for a petition, particularly one designed to petition the government for municipal annexation or incorporation, is constitutionally protected speech and conduct. Committee for Sandy Springs, Ga., Inc. v. Cleland, 708 F. Supp. 1289 (N.D. Ga. 1988).

Limitations on expenditures for campaign constitutionally infirm. - Limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from the candidate's personal funds are constitutionally infirm. State Ethics Comm'n v. McDowell, 238 Ga. 141 , 231 S.E.2d 734 (1977).

Statute regulating political contributions constitutional. - The state has a legitimate interest in preserving the integrity of the democratic process by forbidding a regulated entity from contributing to the holder of the office which oversees the regulation of the entity, or a candidate for that office; thus, O.C.G.A. § 21-5-30.1(b) , which is narrowly tailored to meet this interest, is constitutional. Gwinn v. State Ethics Comm'n, 262 Ga. 855 , 426 S.E.2d 890 (1993).

Distributing leaflets on state-owned property. - Because defendant had a right under the first amendment to engage in expressive activity (distributing leaflets encouraging older workers to unite in order to gain political power to oppose age discrimination) at the time and place involved here (in the parking lot of a department of labor facility), the defendant could not be convicted of criminal trespass because the state would not be able to prove that the defendant was present "without authority." This holding, however, must not be misunderstood to constitute a declaration that all property owned by the State of Georgia is now totally open to all expressive activity by all persons, or even that all state-owned parking lots are available for that purpose. Langton v. State, 261 Ga. 878 , 413 S.E.2d 708 (1992).

Statute making vote buying a felony not void for vagueness or overbreadth. - Former Code 1933, § 34-1933 (see O.C.G.A. § 21-2-570 ), providing that any person who buys or sells, or offers to buy or sell, or knowingly participates in the buying or selling of votes, at any primary or election, shall be guilty of a felony, was not void for vagueness or overbreadth. King v. State, 244 Ga. 536 , 261 S.E.2d 333 (1979).

Bribery statute is not an impermissible restraint upon free speech under U.S. Const., amend. 1; the bribery statute, which places no limitation upon amounts of contributions or expenditures, restricts the purposes for which any benefit, reward or consideration may be offered or given to, or solicited or accepted by, a public officer. State v. Agan, 259 Ga. 541 , 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 110 S. Ct. 1526 , 108 L. Ed. 2 d 765 (1990).

County regulations requiring investigator for solicitor general to vacate post upon election as mayor unconstitutional. - Provisions of county personnel regulations which required the chief investigator for the solicitor general of the county: (1) to take a leave without pay from the investigator's employment with the county in order to file as a candidate or conduct an election campaign; and (2) to forfeit the investigator's employment with the county in order to serve as nonpartisan mayor of a town in another county, violated the investigator's first amendment rights and, therefore, were unconstitutional as applied to the investigator. Segars v. Fulton County, 644 F. Supp. 682 (N.D. Ga. 1986).

Termination of plaintiff's position as a parole review officer of the board of pardons and paroles after the plaintiff's election to county and state political party committees did not violate the plaintiff's constitutional rights of due process and equal protection or the plaintiff's constitutionally protected rights of political speech and association. MacKenzie v. Snow, 675 F. Supp. 1333 (N.D. Ga. 1987).

Views expressed at public meetings. - First Amendment to the U.S. Constitution was not violated by the arrest of citizens who attended a city council meeting to express views on renaming a public park but were disruptive because the mayor's attempts to control the arrestees' conduct was not based on disapproval of the arrestees' viewpoints but on a desire to maintain order; therefore, it was content-neutral. Harris v. City of Valdosta, 616 F. Supp. 2d 1310 (M.D. Ga. 2009).

10. Prisoners

State may not curtail prisoner's rights absent compelling interest. - If there is no question of security or discipline involved, and no other conflicting and compelling state interest, the state may not curtail a prisoner's rights under U.S. Const., amend. 1. Neal v. Georgia, 469 F.2d 446 (5th Cir. 1972).

Balancing of competing interests. - As to rights of prisoners under U.S. Const., amend. 1, the Supreme Court has apparently discarded the use of such rigid standards as "rational nexus" and "compelling state interest," and has substituted in their place a more flexible balancing of the competing interests in each case. Hamilton v. Saxbe, 428 F. Supp. 1101 (N.D. Ga. 1976), aff'd, 551 F.2d 1056 (5th Cir. 1977).

Prisoner retains only those rights consistent with the prisoner's status. - A federal prisoner is not stripped of the prisoner's constitutional rights when the prisoner enters the prison gate; but a prisoner only retains those rights under U.S. Const., amend. 1 that are not inconsistent with the prisoner's status as a prisoner or with legitimate penological objectives of the corrections system. Hamilton v. Saxbe, 428 F. Supp. 1101 (N.D. Ga. 1976), aff'd, 551 F.2d 1056 (5th Cir. 1977).

Prisoners maintain limited first amendment rights. - Although incarcerated, a prisoner was not barred from asserting claims of first amendment violations when prison officials refused to deliver a magazine to the inmate. However, where the magazine contained inflammatory material which could have lead to disorder and violence within the prison, the prison officials did not violate the inmate's constitutional rights by denying delivery of a single magazine to ensure the safety of officials and inmates. Olson v. Loy, 951 F. Supp. 225 (S.D. Ga. 1996).

Balancing of interests where prison regulations challenged. - Where prison regulations affecting rights under the first amendment of inmates are challenged, the courts will examine the interests sought to be protected by the challenged regulations and determine whether these objectives are, in fact, furthered by the regulations in a means which does not unduly interfere with constitutional rights. Hamilton v. Saxbe, 428 F. Supp. 1101 (N.D. Ga. 1976), aff'd, 551 F.2d 1056 (5th Cir. 1977).

Correspondence and visitation rights of prisoners protected in some degree by the first amendment. Hamilton v. Saxbe, 428 F. Supp. 1101 (N.D. Ga. 1976), aff'd, 551 F.2d 1056 (5th Cir. 1977).

Regulations affecting either correspondence or visitation rights of prisoners must be tailored to achieve substantial governmental interests. However, governmental interests need not be as compelling when the form of expression regulated is just one of a series of alternative forms of communication, and the means used to achieve governmental interests need not be as tailored when interests under the first amendment are less substantial, but where the institutional concern for security and rehabilitation becomes more pressing. Hamilton v. Saxbe, 428 F. Supp. 1101 (N.D. Ga. 1976), aff'd, 551 F.2d 1056 (5th Cir. 1977).

Prisoners have no absolute correspondence or visitation rights with respect to friends, pen pals, fiancees, and even women who have borne the children of prisoners. When an inmate seeks to have his girl friend or paramour visit him, prison officials are entitled to look more closely at the relationship than if the visitor were a wife and make an independent judgment as to the appropriateness of the visit. This, however, does not give prison officials free rein to grant and deny visitation privileges at will. Hamilton v. Saxbe, 428 F. Supp. 1101 (N.D. Ga. 1976), aff'd, 551 F.2d 1056 (5th Cir. 1977).

Inmates' right to visitation. - Inmates do not have an absolute right to visitation, such privileges being subject to the prison authorities' discretion provided that the visitation policies meet legitimate penological objectives; concerns that former prison employees visiting inmates may pose a threat to security because of their knowledge of security procedures constitutes a legitimate penological objective. Caraballo-Sandoval v. Honsted, 35 F.3d 521 (11th Cir. 1994).

Censorship of prisoner mail is allowed if: (1) the regulation or practice in question furthers an important or substantial governmental interest unrelated to the suppression of expression; and (2) the limitation of rights is no greater than generally necessary to protect one or more legitimate governmental interests. Legitimate governmental interests include the security and order of penal institutions and the rehabilitation of inmates. Blue v. Hogan, 553 F.2d 960 (5th Cir. 1977); Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Parameters of censorship of prisoner's reading material. - Censorship of prisoner's reading material is allowed only when the government shows that the censorship furthers an important or substantial governmental interest unrelated to the suppression of expression and that the censorship is no greater a limitation on the prisoner's rights than generally necessary to protect one or more legitimate governmental interests. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Censorship of letters requires minimum procedural safeguards. - The decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards, since the interest of prisoners and their correspondents in uncensored communications by letter, grounded as it is in U.S. Const., amend. 1, is plainly a "liberty" interest within the meaning of U.S. Const., amend. 14. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Constitutionally sufficient reasons for withholding letters. - Unless a letter contains a threat to prison order and security or is in direct violation of law, there is usually no constitutionally sufficient reason to stop it. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Inspection and perusal of outgoing letters. - Outgoing letters from prisoners may be inspected and, when deemed necessary, read to determine whether they contain escape plots, violations of law, or threats to the institution. Letters containing simply profane or obscene language, however, are not the proper subject of direct censorship through either halting the letter or suspending the mailing privilege. Hardwick v. Ault, 447 F. Supp. 116 (M.D. Ga. 1978).

Bodily privacy. - A prisoner retains a constitutional right to bodily privacy and the district court improperly dismissed a class action for injunctive relief based on alleged violations of this right involving the supervision of male personal hygiene by female correctional officers. Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993).

Newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public. Jersawitz v. Hanberry, 783 F.2d 1532 (11th Cir.), cert. denied, 479 U.S. 883, 107 S. Ct. 272 , 93 L. Ed. 2 d 249 (1986).

Retaliatory searches unconstitutional. - Search, confiscation, or destruction of an inmate's material in retaliation for the inmate's filing lawsuits and administrative grievances violates both the inmate's right of access to the courts and the inmate's rights under U.S. Const., amend. 1. Wright v. Newsome, 795 F.2d 964 (11th Cir. 1986).

Retaliation for exercise of right prohibited. - The first amendment prohibits state officials from retaliating against prisoners for exercising the right of free speech. Thomas v. Evans, 880 F.2d 1235 (11th Cir. 1989), cert. denied, 498 U.S. 901, 111 S. Ct. 261 , 112 L. Ed. 2 d 218 (1990).

To state a first amendment claim for retaliation, a prisoner need not allege violation of a separate and distinct constitutional right. The gist of a retaliation claim is that a prisoner is penalized for exercising the right of free speech. The penalty need not rise to the level of a separate constitutional violation. Thomas v. Evans, 880 F.2d 1235 (11th Cir. 1989), cert. denied, 498 U.S. 901, 111 S. Ct. 261 , 112 L. Ed. 2 d 218 (1990).

Destruction of inmate's pleadings and legal materials constitutes denial of access to courts. - An allegation that prison officials seized a prisoner's pleadings and law book and destroyed other legal papers clearly states a claim of denial of access to the courts. Wright v. Newsome, 795 F.2d 964 (11th Cir. 1986).

Access to courts may not be denied. - The first amendment prohibits state officials from denying a prisoner's legal right of access to the courts. Thomas v. Evans, 880 F.2d 1235 (11th Cir. 1989), cert. denied, 498 U.S. 901, 111 S. Ct. 261 , 112 L. Ed. 2 d 218 (1990).

The Constitution forbids courts to abridge inmates' rights to have meaningful access to and communications with the courts, and a blanket declaration that all filings would be "null and void by operation of law" was impermissible. Hooper v. Harris, 236 Ga. App. 651 , 512 S.E.2d 312 (1999).

Prison inmate's right of access to courts. - It is state's option to choose method by which to implement prison inmate's right of access to courts; a law library is only one alternative which fills this responsibility. Bell v. Hopper, 511 F. Supp. 452 (S.D. Ga. 1981).

Standing. - An inmate does not have standing to assert the first amendment rights of prison guards relative to a prison policy prohibiting its employees from communicating directly with the parole board on behalf of prisoners. Harris v. Evans, 20 F.3d 1118 (11th Cir.), cert. denied, 513 U.S. 1045, 115 S. Ct. 641 , 130 L. Ed. 2 d 546 (1994).

11. Schools and Universities

Statute prohibiting insulting speech to teachers was unconstitutionally overbroad. - O.C.G.A. § 20-2-1182 , which criminalized upbraiding, insulting, or abusing a public school teacher or administrator in the presence of a pupil while on the premises of a public school or school bus, was unconstitutionally overbroad because words which merely offended, angered, or frustrated could not be prohibited in violation of freedom of speech. Further, the statute did not tie the statute's prohibited expression to the disruption of school activities or specific times. West v. State, 300 Ga. 39 , 793 S.E.2d 57 (2016).

First amendment does not prevent a board of education from limiting the use of school facilities solely to educational purposes. If, however, the schools choose to open their doors to expression by outside groups and individuals, they must do so under principles that are consistent with U.S. Const., amend. 1. Searcey v. Crim, 642 F. Supp. 313 (N.D. Ga. 1986), modified, 815 F.2d 1389 (11th Cir. 1987). See Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989).

Peace activists entitled to same access as military recruiters. - Denying "peace activists" an opportunity equal to the one afforded military recruiters to place their literature on school bulletin boards and in the offices of school guidance counselors and to participate in school "Career Days" and "Youth Motivation Days" violated their rights under U.S. Const., amend. 1. Searcey v. Crim, 642 F. Supp. 313 (N.D. Ga. 1986), modified, 815 F.2d 1389 (11th Cir. 1987). See Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989).

Oath requiring professors to refrain from certain teachings unconstitutional. - Language of an oath "to refrain from directly or indirectly subscribing to or teaching any theory of government or economics or social relations which is inconsistent with the fundamental principles of patriotism and high ideals of Americanism" provides no ascertainable standard of conduct. It is vague and uncertain in that there is no definition of fundamental principles of patriotism or high ideals of Americanism and one would necessarily teach at one's peril in the areas of government, economics, or social relations. This language is, thus, unconstitutional and void under U.S. Const., amends. 1 and 14. It constitutes a denial of due process under U.S. Const., amend. 14 in light of the penal provision, and a prohibited inhibition on the first amendment's right to freedom of speech, which right is protected from state invasion by U.S. Const., amend. 14. Georgia Conference of Am. Ass'n of Univ. Professors v. Board of Regents of Univ. Sys., 246 F. Supp. 553 (N.D. Ga. 1965).

Teacher's right under the first amendment. - The first amendment gives a teacher the right to speak the teacher's mind; but it does not give the teacher the right to disrupt a school, or to choose its principals, or to sabotage its programs. Glover v. Daniel, 318 F. Supp. 1070 (N.D. Ga. 1969), aff'd, 434 F.2d 617 (5th Cir. 1970).

Balancing of teacher's and state's interests. - While teachers unquestionably enjoy the right under U.S. Const., amend. 1 to comment upon matters of public concern and to offer constructive criticism of school policy under the umbrella of academic freedom, the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees must be balanced. Cotten v. Board of Regents of Univ. Sys., 395 F. Supp. 388 (S.D. Ga. 1974), aff'd, 515 F.2d 1098 (5th Cir. 1975).

Rights of discharged or nonrenewed teacher asserting constitutionally "protected" right. - A discharged or nonrenewed teacher asserting a constitutionally "protected" right was entitled to a de novo hearing in federal court regardless of whether that teacher resorted to an administrative hearing or whether such hearing purported to decide the issue, and the teacher should have been allowed to present evidence in the court that other teachers had engaged in similar "improper" conduct, such as that which allegedly justifiably caused the teacher's discharge, known to school personnel and the board, and those teachers were not disciplined, raising an inference that the teacher in question was disciplined for reasons other than "improper" conduct. Holley v. Seminole County Sch. Dist., 755 F.2d 1492 (11th Cir. 1985).

Necessity of punitive damages determination. - Where plaintiff-professor contended that the professor was deprived of employment and employment benefits because of the exercise of the professor's freedom of speech rights, in addition to finding a violation of the professor's free speech rights, the jury also had to determine whether the conduct of one or more of the defendants was so egregious as to warrant the award of punitive damages in some amount. Kemp v. Ervin, 651 F. Supp. 495 (N.D. Ga. 1986).

Minors possess first amendment rights. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff'd, 621 F.2d 141 (5th Cir. 1980).

Regulation of student's protected expression. - Student's protected expression may only be reasonably regulated in carefully restricted circumstances at school in order to avoid any material disruption of the classroom, any substantial disorder of school work, and any invasion of the rights of others. High Ol' Times, Inc. v. Busbee, 456 F. Supp. 1035 (N.D. Ga. 1978), aff'd, 621 F.2d 141 (5th Cir. 1980).

Under U.S. Const., amend. 1: (1) expression by high school students can be prohibited altogether if it materially and substantially interferes with school activities, or with the rights of other students or teachers, or if the school administration can demonstrate reasonable cause to believe that the expression would engender such material and substantial interference; (2) expression by high school students cannot be prohibited solely because other students, teachers, administrators, or parents may disagree with its content; (3) efforts at expression by high school students may be subjected to prior screening under clear and reasonable regulations; and (4) expression by high school students may be limited in manner, place, or time by means of reasonable and equally applied regulations. Reineke v. Cobb County Sch. Dist., 484 F. Supp. 1252 (N.D. Ga. 1980).

Requiring a student's public apology. - Demand that a student make an apology to a teacher and class for "off-color" remarks the student made in the classroom did not violate the student's first amendment rights. Kicklighter v. Evans County Sch. Dist., 968 F. Supp. 712 (S.D. Ga. 1997), aff'd, 140 F.3d 1043 (11th Cir. 1998).

Comment on matters of public concern by faculty on questionnaire is protected speech. - Where a questionnaire solicits the views of faculty on a broad range of issues, such as the degree of mutual confidence existing between administration and faculty, the extent to which good teaching and good research are rewarded, the extent to which faculty opinions are listened to and respected, the effectiveness of the administration in dealing with grievances, the accuracy and completeness of information used to evaluate teachers, and other matters that are of public importance and concern, comment upon them is protected speech. Lindsey v. Board of Regents, 607 F.2d 672 (5th Cir. 1979).

Teachers' comments on allocation of school funds protected speech. - The question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the school board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question, free and open debate is vital to informed decision making by the electorate; teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent; accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal. Lindsey v. Board of Regents, 607 F.2d 672 (5th Cir. 1979).

A confidentiality policy would constitute a defense to a complaint under U.S. Const., amend. 1 only if it: (1) factually existed; (2) was consistent with other state statutes and regulations; (3) was not vague; (4) did not proscribe protected speech overbroadly; (5) was communicated to the appellant, and (6) was not void as a matter of public policy in its instant application. Williams v. Board of Regents, 629 F.2d 993 (5th Cir. 1980), cert. denied, 452 U.S. 926, 101 S. Ct. 3063 , 69 L. Ed. 2 d 428 (1981).

Restraining of student publication prior to disruption. - School administrators need not await occurrence of actual disruption before exercising reasonable restraint over a student publication, but mere undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Reineke v. Cobb County Sch. Dist., 484 F. Supp. 1252 (N.D. Ga. 1980).

Forms of censorship based on power of purse cannot be imposed on student publication. - Censorship of constitutionally protected expression of student publication at state-supported institutions cannot be imposed by suspending the editors, suppressing circulation, requiring imprimatur of controversial articles, excising repugnant material, withdrawing financial support, or asserting any other form of censorial oversight based on the institution's power of the purse. Reineke v. Cobb County Sch. Dist., 484 F. Supp. 1252 (N.D. Ga. 1980).

School officials must show interference with school activities by prohibited expression. - The primary issue is whether school officials can demonstrate reasonable cause to believe that the prohibited expression would have engendered material and substantial interference with school activities or with the rights of others. Reineke v. Cobb County Sch. Dist., 484 F. Supp. 1252 (N.D. Ga. 1980).

Required showing to justify prohibition of expression of unpopular opinion. - In order for the state in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972).

Evidence relevant in assessing professor's termination. - Where plaintiff-professor contended that the professor had been deprived of employment and employment benefits because the professor exercised the professor's freedom of speech rights by speaking out against preferential treatment given university athletes, principles of relevancy did not preclude the professor from proving the truth of the assertions that revenue-producing athletes (scholarship athletes) and other influential students received preferential academic treatment at the university. Other purposes for which this evidence would have been relevant included proof of motive and state of mind of the defendants for the purpose of determining the level and nature of their misconduct, evidence critical to assessment of the credibility of both defendants, and evidence that the stated reasons for the job action were pretextual. Kemp v. Ervin, 651 F. Supp. 495 (N.D. Ga. 1986).

"Career Day" restrictions held to violate first amendment. - School board regulations barring "Career Day" participants from criticizing the opportunities provided by other participants, through providing students with valid and informative disadvantages of that career, violated the first amendment right to freedom of speech. Searcey v. Crim, 681 F. Supp. 821 (N.D. Ga.), aff'd as modified sub nom. Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989).

12. Commercial Speech

"Commercial speech" construed. - "Commercial speech" is speech which does nothing more than propose commercial transaction. State interest cannot negate the protections afforded speech, even commercial in content, by U.S. Const., amend. 1. Daugherty v. City of E. Point, 447 F. Supp. 290 (N.D. Ga. 1978).

Federal regulation of commercial speech. - Federal government may in some circumstances prohibit purely commercial speech made in connection with conduct which Congress can permissibly regulate or prohibit. While speech made in a political or informational context deserves the highest degree of protection from governmental restraint, government may regulate speech made incidental to a purely commercial activity. United States v. Bob Lawrence Realty, Inc., 474 F.2d 115 (5th Cir.), cert. denied, 414 U.S. 826, 94 S. Ct. 131 , 38 L. Ed. 2 d 49 (1973).

No protection afforded commercial advertising. - While freedom of communicating information and disseminating opinion enjoys the fullest protection of the first amendment, the Constitution imposes no such restraint on government as respects purely commercial advertising. United States v. Bob Lawrence Realty, Inc., 474 F.2d 115 (5th Cir.), cert. denied, 414 U.S. 826, 94 S. Ct. 131 , 38 L. Ed. 2 d 59 (1973).

Commercial speech is unprotected by the first amendment. Hood v. Dun & Bradstreet, Inc., 486 F.2d 25 (5th Cir. 1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1580 , 39 L. Ed. 2 d 882 (1974).

Protection of commercial speech. - First amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it seeks to implement a substantial governmental interest, directly advances that interest, and reaches no farther than necessary to accomplish the given objective. H & H Operations, Inc. v. City of Peachtree City, 248 Ga. 500 , 283 S.E.2d 867 (1981), cert. denied, 456 U.S. 961, 102 S. Ct. 2037 , 72 L. Ed. 2 d 484 (1982).

There is no substantial governmental interest in permitting commercial signs yet prohibiting posting of prices. Numbers (prices) are not esthetically inferior to letters of the alphabet forming words (name of the business and products available). H & H Operations, Inc. v. City of Peachtree City, 248 Ga. 500 , 283 S.E.2d 867 (1981), cert. denied, 456 U.S. 961, 102 S. Ct. 2037 , 72 L. Ed. 2 d 484 (1982).

Court enforcement of agreement limiting speech rights. - Where two disputing parties in positions of equal bargaining power agree, through a settlement stipulation, to restrict, in a limited degree, their first amendment rights on commercial speech, the court enforcement of that agreement is not governmental action for first amendment purposes. United Egg Producers v. Standard Brands, Inc., 44 F.3d 940 (11th Cir. 1995).

Commercial solicitation. - O.C.G.A. § 33-24-53 , by criminalizing requests for public records for commercial solicitation purposes, implicates U.S. Const., amend. 1. Statewide Detective Agency v. Miller, 115 F.3d 904 (11th Cir. 1997).

Constitutionality of O.C.G.A. § 16-8-60(b) . - Trial court did not err in finding that O.C.G.A. § 16-8-60(b) was not unconstitutionally vague nor overbroad and was not preempted by federal law, as: (1) the statute aimed to protect the public and entertainment industry from piracy and bootlegging, a legitimate governmental interest unrelated to free speech concerns; (2) it did not impinge upon pure speech, but, at most, regulated a combination of commercial conduct and speech; (3) its deterrent effect on legitimate expression was minimal; and (4) it plainly prohibited the sale, or possession for the purposes of sale, of an article that did not prominently display the name and address of the individual (or entity) who transferred the sounds to the article. Briggs v. State, 281 Ga. 329 , 638 S.E.2d 292 (2006).

Commercial exploitation of film is private, not public, interest. - Although expression by means of motion pictures is included within the free expression or free press guarantee of the first and fourteenth amendments, the right of commercial exploitation of a film does not represent a great public interest, but amounts to a private right. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660 , 45 L. Ed. 2 d 696 (1975).

Business license tax. - Where the purpose of a business license tax was for the purpose of revenue raising and not for the control of solicitation, it was not in violation of freedom of speech and association. Miles v. City Council, 551 F. Supp. 349 (S.D. Ga. 1982), aff'd, 710 F.2d 1542 (11th Cir. 1983).

City sign ordinance that prohibited the display of noncommercial messages at locations where commercial messages were permitted was unconstitutional. Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393 , 467 S.E.2d 875 (1996).

Ordinance that restricted signs in residential zoning districts to on-premise signs and certain temporary or special signs, allowing temporary political signs, but not providing for permanent signs expressing the political, religious, or other noncommercial views of residents, was unconstitutional. Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, Inc., 266 Ga. 393 , 467 S.E.2d 875 (1996).

County ordinance which prohibited off-premise signs in commercially-zoned areas, including all commercial signs, and then permitted the county to decide on a case-by-case basis which signs were allowed, violated the First Amendment. By initially declaring all signs as illegal and allowing the county to exempt from the ban only on a case-by-case basis, the ordinance was more extensive than was necessary to protect against misleading commercial speech and provided insufficient protection for protected speech, both commercial and otherwise. Fulton County v. Galberaith, 282 Ga. 314 , 647 S.E.2d 24 (2007).

Trial court properly granted summary judgment to a city in a suit brought by an outdoor sign company challenging the constitutionality of the city's sign ordinance as the company's sign applications failed to meet the city's height and size restrictions and the restrictions were constitutional. Since the company lacked standing to challenge any other provision of the ordinance, the trial court should not have addressed the company's constitutional arguments concerning other provisions of the ordinance, though that appellate court determination did not change the grant of summary judgment to the city. Granite State Outdoor Adver., Inc. v. City of Roswell, 283 Ga. 417 , 658 S.E.2d 587 (2008), cert. denied, 129 S. Ct. 222 , 172 L. Ed. 2 d 143 (2008).

City ordinance which prohibits billboards, defined as offsite advertising signs, does not impermissibly restrict commercial speech. Southlake Prop. Assoc. v. City of Morrow, 112 F.3d 1114 (11th Cir. 1997).

Misleading or false advertising subject to restraint. - While commercial speech is entitled to some protection, deceptive or misleading advertising disserves the aims of the first amendment. Misleading advertising is subject to restraint, and false advertising may be prohibited entirely. Energy Four, Inc. v. Dornier Medical Sys., 765 F. Supp. 724 (N.D. Ga. 1991).

Advertising restrictions. - City bus company's written advertising policy that restricted access to its advertising space to those ads which do not support or oppose any position in regard to a matter of public controversy was void for vagueness and overbreadth. National Abortion Fed'n v. Metropolitan Atlanta Rapid Transit Auth., 112 F. Supp. 2d 1320 (N.D. Ga. 2000).

Commercial use of law enforcement records. - Former O.C.G.A. § 35-1-9 , prohibiting the inspection of law enforcement records for the purpose of using information contained in the records for commercial solicitation, violated first amendment commercial speech rights. Speer v. Miller, 864 F. Supp. 1294 (N.D. Ga. 1994).

Alcohol advertisements. - Trial court erred in upholding a city's decision to suspend a liquor license for 30 days for violations of the Jasper, Ga., Alcoholic Beverages Ordinance, which banned alcohol advertisements, because the ordinance was a blanket prohibition on commercial speech that violated the first amendment as the city did not show that the ordinance advanced the substantial governmental interest of temperance and that the ordinance was no more restrictive than necessary. Folsom v. City of Jasper, 279 Ga. 260 , 612 S.E.2d 287 (2005).

Jasper, Ga., Alcoholic Beverages Ordinance, which authorized the city council to suspend or revoke an alcohol license if the council determined to its own satisfaction that the licensee was guilty of any violation of federal or state law, was facially overbroad as it did not limit the types of violations that would justify revocation of a license to those violations related to the regulatory purpose of the license; however, the ordinance was not overbroad as applied to a cafe owner as the alleged violation of the ordinance was the battery of a patron by a cafe employee and the risk of unruly patrons, and an overzealous response to that unruliness by employees was one of the reasons for the regulation of the sale and consumption of alcohol. Folsom v. City of Jasper, 279 Ga. 260 , 612 S.E.2d 287 (2005).

Sale of alcohol in erotic dance establishments. - City ordinance prohibiting the sale of alcohol at an erotic dance establishment was constitutional. The adult entertainment establishment ordinance was narrowly drawn to promote the city's interest in combating the secondary effects of adult entertainment establishments. Gravely v. Bacon, 263 Ga. 203 , 429 S.E.2d 663 (1993).

A legislative restriction on adult entertainment must satisfy a tripartite test in order to comport with the free speech guarantees of the federal and state constitutions. The constitutionality of a law regulating adult entertainment will be upheld only (1) if it furthers an important government interest; (2) if that government interest is unrelated to the suppression of speech; and (3) if the incidental restriction of speech is no greater than is essential to the furtherance of that government interest. Discotheque, Inc. v. City Council, 264 Ga. 623 , 449 S.E.2d 608 (1994).

Where the stated purpose of a municipal ordinance regulating adult entertainment on premises licensed to sell alcoholic beverages was to reduce criminal activity and deterioration of neighborhoods as pernicious secondary effects of adult entertainment establishments, the city failed to show there was no genuine issue of material fact as to these issues. Discotheque, Inc. v. City Council, 264 Ga. 623 , 449 S.E.2d 608 (1994).

County ordinance prohibiting nude dancing at establishments that serve alcohol did not violate first amendment rights of operators of the establishments. Wise Enters. v. Unified Gov't, 217 F.3d 1360 (11th Cir. 2000).

Restricting off-site advertising of erotic dance establishments. - A statute proscribing any form of off-site advertising for commercial establishments featuring nude dancing impedes the free flow of information and far exceeds the state's legitimate interest in preventing hazards to the traveling public, and thus, impermissibly infringes the right of free speech. State v. Cafe Erotica, Inc., 270 Ga. 97 , 507 S.E.2d 732 (1998).

13. Electronic Communication

Internet users had standing to bring an action for declaratory and injunctive relief challenging the constitutionality of O.C.G.A. § 16-9-93.1 , prohibiting internet transmissions which falsely identify the sender or use trade names or logos without legal authority because a credible threat of prosecution existed. American Civil Liberties Union v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997).

Internet users challenging the constitutionality of O.C.G.A. § 16-9-93.1 , prohibiting internet transmissions which falsely identify the sender or use trade names or logos without legal authority, were entitled to a preliminary injunction because they were likely to show that the section imposed content-based restrictions not narrowly tailored to achieve a compelling state interest, it was vague and overbroad, there was a substantial threat of irreparable injury, and the balance of hardships weighed heavily in plaintiffs' favor. American Civil Liberties Union v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997).

14. Criminal Matters

Burden on government to protect defendant from unfair news coverage. - Although the right of a free press embodied in the first amendment is guaranteed, the individual's right to a fair trial guaranteed by the fifth amendment's due process clause and in the other individual provisions of the bill of rights is absolute, and where prejudicial news coverage is present, the burden is on the government to protect the rights of the defendant. While government has no authority to restrain the reporting of the press, nor to dictate what it does or does not report, a person accused of crime has the right to expect that the government of the accused and its judicial officers to protect the accused from massive and prejudicial publicity surrounding the case. Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974), rev'd on other grounds, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911, 96 S. Ct. 1505 , 47 L. Ed. 2 d 760 (1976).

Access to criminal proceedings. - Where a third party seeks access to material disclosed during discovery and covered by a protective order, the constitutional right of access requires a showing of good cause, and not a showing of a compelling interest, by the party seeking protection. Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001).

No public access to search warrants. - No first amendment right of public access to search warrants, and affidavits filed in support of the warrants, exists. This is so even after the search warrants have been executed, to the extent that secrecy of the warrant materials is necessary to preserve the grand jury's processes inviolate. In re Macon Tel. Publishing Co., 900 F. Supp. 489 (M.D. Ga. 1995).

Search warrant affidavits. - There is no first amendment right of access to search warrant affidavits. In re Four Search Warrants, 945 F. Supp. 1563 (N.D. Ga. 1996).

Restraining order prohibiting publication of certain information on criminal suspect impermissible. - A restraining order which prohibited a newspaper from publishing any information on an alleged suspect in a murder case which was obtained through discovery without the newspaper first following a procedure of notifying the court of its intent to disclose any information and obtaining the permission of the court to disclose in the event an objection was filed constituted an unwarranted restraint upon the newspaper's liberty of speech and of the press. Georgia Gazette Publishing Co. v. Ramsey, 248 Ga. 528 , 284 S.E.2d 386 (1981).

Disclosure of identity of sexual assault victim. - By passing the rape shield statute, O.C.G.A. § 24-2-3, the legislature has stated as a matter of public policy that, where the crime involved is rape, sexual assault or attempted sexual assault, the legitimate public interest in the identity of the victim does not outweigh the victim's privacy interest. Macon Tel. Publishing Co. v. Tatum, 208 Ga. App. 111 , 430 S.E.2d 18 (1993).

Rape victim confidentiality statute. - The victim of a sexual assault could not recover damages from a newspaper for invasion of privacy since, when she shot and killed the perpetrator of the assault, she became the object of legitimate public interest and the newspaper had the right under the United States and Georgia Constitutions to accurately report facts regarding the incident, including her name. Macon Tel. Publishing Co. v. Tatum, 263 Ga. 677 , 436 S.E.2d 655 (1993).

Nude photos of murder victim. - Publishing 20-year-old nude photos of an aspiring model who later became a professional wrestler and whose murder was highly publicized did not fall within Georgia's right of publicity newsworthiness exception; the photos were unrelated to the incident of public concern, the model's death, and thus, a right of publicity case filed by plaintiff, the mother and personal representative for the daughter's estate, against defendant publisher, could be pursued; under the First Amendment and Ga. Const. 1983, Art. I, Sec. I, Para. V, every private fact disclosed in an otherwise truthful, newsworthy publication had to have some substantial relevance to a matter of legitimate public interest in order to fall within the newsworthiness exception. Toffoloni v. LFB Publ'g Group, 572 F.3d 1201 (11th Cir. 2009), cert. denied, mot. granted, 130 S. Ct. 1689 , 176 L. Ed. 2 d 206 (2010).

Georgia "Anti-Mask Act", O.C.G.A. § 16-11-38 , which proscribes intimidating or threatening mask-wearing behavior, does not violate the constitutional rights of freedom of speech, freedom of association, and equal protection of the law. State v. Miller, 260 Ga. 669 , 398 S.E.2d 547 (1990).

Criminal prosecution to penalize exercise of first amendment rights. - While the institution of criminal prosecution to penalize the exercise of first amendment rights is actionable under 42 U.S.C. § 1983, plaintiffs must demonstrate some evidence of retaliatory motive or bad faith in order to succeed in such an action. Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987).

Constitutionality of false statement statute. - False statement statute, O.C.G.A. § 16-10-20 , when properly construed to require that the defendant make the false statement with knowledge and intent that the statement may come within the jurisdiction of a state or local government agency, is constitutional because correctly interpreted, the statute raises no substantial constitutional concern on the statute's face; the statute requires a defendant to know and intend, that is, to contemplate or expect, that his or her false statement will come to the attention of a state or local department or agency with the authority to act on the statement, and as properly construed, O.C.G.A. § 16-10-20 may only be applied to conduct that persons of common intelligence would know was wrongful because it could result in harm to the government. Haley v. State, 289 Ga. 515 , 712 S.E.2d 838 (2011), cert. denied, U.S. , 133 S. Ct. 60 , 183 L. Ed. 2 d 711 (2012).

Bribery statute constitutional. - Bribery statute (O.C.G.A. § 16-10-2 ) does not violate the first amendment on its face since it includes corrupt intent as an element. Therefore, the section was not unconstitutional as applied to defendant's offer of campaign contributions to influence the decision of county commissioners' regarding the defendant's zoning variance request. Agan v. Vaughn, 119 F.3d 1538 (11th Cir. 1997), cert. denied, 523 U.S. 1023, 118 S. Ct. 1305 , 140 L. Ed. 2 d 470 (1998).

Traffic regulations must be observed despite exercising of rights. - Mere fact that defendant is exercising the defendant's rights under U.S. Const., amend. 1 does not shield the defendant from observance of normal traffic regulations, such as under former Code 1933, § 68A-507(b) (see O.C.G.A. § 40-6-98 ). Zeiger v. State, 140 Ga. App. 610 , 231 S.E.2d 494 (1976).

Loitering ordinances. - Local ordinance providing that "No person shall remain or loiter upon any premises to which the public has access, including but not limited to such places as business and shopping area parking lots, where the person's presence upon such premises is unrelated to the normal activity, use or business for which such premises are made available to the public" violates U.S. Const., amend. 1 and U.S. Const., amend. 14. Bullock v. City of Dallas, 248 Ga. 164 , 281 S.E.2d 613 (1981).

Constitutionality of indecent Internet contact with a child statute. - O.C.G.A. § 16-12-100.2(e)(1), obscene Internet contact with a child, did not effect a real and substantial constraint upon constitutionally protected expression and, therefore, did not violate the First Amendment's free speech guarantee; the word "contact" was modified by the phrase "that is intended to arouse or satisfy the sexual desire of either the child or the person," rendering it unlikely that innocuous communications would violate the statute. Scott v. State, 299 Ga. 568 , 788 S.E.2d 468 (2016), cert. denied, 137 S. Ct. 1328 , 197 L. Ed. 2 d 517 (U.S. 2017).

Freedom of Association

Protection against disclosure of associational relationship. - Undeniably, U.S. Const., amend. 1 in some circumstances protects an individual from being compelled to disclose the individual's associational relationships; however, the protections of U.S. Const., amend. 1, unlike a proper claim of the privilege against self-incrimination under U.S. Const., amend. 5, do not afford a witness the right to resist inquiry in all circumstances. Braden v. United States, 272 F.2d 653 (5th Cir. 1959), aff'd, 365 U.S. 431, 81 S. Ct. 584 , 5 L. Ed. 2 d 653 (1961).

Barring of governmental interrogation. - When first amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves balancing by the courts of the competing private and public interests at stake in the particular circumstances shown. Braden v. United States, 272 F.2d 653 (5th Cir. 1959), aff'd, 365 U.S. 431, 81 S. Ct. 584 , 5 L. Ed. 2 d 653 (1961).

Primary limitation on freedom to assemble. - The freedom to assemble, a right zealously guarded by the courts, and properly so, finds its primary limitation in the words of the first amendment "to peacefully assemble." Durham v. State, 219 Ga. 830 , 136 S.E.2d 322 (1964).

Nature of freedom of association. - The freedom of association which the Supreme Court has recognized as protected by the first amendment is a right to freedom of expression through associational affiliations. Eberhart v. Massell, 311 F. Supp. 654 (N.D. Ga. 1970).

Right of association is derivative of first amendment free speech rights. - The fact that revealing names of members of a grand jury may diminish their desire to associate with the organization has no constitutional significance unless protected free speech interests are implicated. Thus, on a motion to quash a grand jury subpoena duces tecum, the motion will be quashed where the potential impact on free speech rights is only speculative. In re Roberts, 650 F. Supp. 159 (N.D. Ga. 1987), aff'd, 842 F.2d 1229 (11th Cir. 1988).

Elements of right of association. - The elements of which the right of free association is composed include as an obvious minimum the right to organize and join any association for the advancement of beliefs and ideas, regardless of the nature of such beliefs and ideas, or whether they pertain to religious, political, economic, social, civil, cultural, or other matters. The right of association also includes the right to adhere to an organization without public identification, and the right not to be compelled to join any organization, but the full enjoyment of these rights is limited to organizations for lawful purposes which are carrying on their activities in a lawful manner. Further, the right of association, like the right of expression in general may not be used as a mere excuse for criminal conduct. Eberhart v. Massell, 311 F. Supp. 654 (N.D. Ga. 1970).

Right of association is protected by the first amendment. Melton v. City of Atlanta, 324 F. Supp. 315 (N.D. Ga. 1971).

In addition to protection of "pure" and "symbolic" speech, the first amendment protects the rights of assembly and association. Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972).

U.S. Const., amend. 1 has the effect of creating a constitutional right of free association. Doherty v. Wilson, 356 F. Supp. 35 (M.D. Ga. 1973).

Only natural persons can maintain an action for interference with the right of association. Stone Mt. Game Ranch, Inc. v. Hunt, 570 F. Supp. 238 (N.D. Ga. 1983), aff'd, 746 F.2d 761 (11th Cir. 1984).

Exclusion from primary ballot. - The Republican Party enjoys a constitutionally protected right of freedom of association, which encompasses its decision to exclude a candidate for the Republican nomination for President of the United States as a candidate on the Republican Primary ballot because the candidate's political beliefs are inconsistent with those of the Republican Party. Duke v. Cleland, 954 F.2d 1526 (11th Cir.), cert. denied, 502 U.S. 1086, 112 S. Ct. 1152 , 117 L. Ed. 2 d 279 (1992).

First amendment to United States Constitution protects right to union organization and activity. Hodges v. Tomberlin, 510 F. Supp. 1287 (S.D. Ga. 1981).

Denial of use of campus facilities. - Primary impediment to free association flowing from nonrecognition of student organization is denial of use of campus facilities for meetings and other appropriate purposes. Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972).

The three circumstances under which university facilities may be denied to registered campus organization are: refusal to abide by reasonable regulations; a demonstrated danger of violence or disruption at the meeting; and that the meeting itself would violate either state or federal law. Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972).

Invoking of any justification for denial of university facilities to campus organization amounts to prior restraint on first amendment freedoms and places a heavy burden on the university to justify denial. Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972).

Denial of university recognition. - Denial of university recognition affected the first amendment rights of members of a student organization and recognition could be denied by a university only under narrowly limited circumstances. Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972).

Required showing to justify denial of recognition to campus homosexual organization. - Officials of a state-supported university may not deny use of university facilities to a campus homosexual organization without demonstrating the organization's refusal to abide by reasonable regulations, a clear and present danger of violence or disruption, or that holding the meeting itself would violate state or federal law. Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972).

Freedom to associate for advancement of beliefs and ideas. - Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the due process clause of the first amendment which embraces freedom of speech. Stoner v. Fortson, 379 F. Supp. 704 (N.D. Ga. 1974).

Compelled disclosure of association as restraint on freedom to associate. - Where a group is engaged in advocacy of particular beliefs, whether they be political, economic, religious, or cultural, compelled disclosure of affiliation with such a group constitutes a restraint on one's freedom of association. Stoner v. Fortson, 379 F. Supp. 704 (N.D. Ga. 1974).

There is no absolute right on part of individuals to bar disclosure which infringes on right of association. - Against any impediment to the first amendment right which a particular statute creates, there must be considered the importance and value to the public of the goal which the statute accomplishes. Stoner v. Fortson, 379 F. Supp. 704 (N.D. Ga. 1974).

Restrictions on right of association of government employees in furtherance of significant interest. - The restrictions on the exercise of rights of political expression and association of government employees must be in furtherance of a significant governmental interest. Galer v. Board of Regents of Univ. Sys., 239 Ga. 268 , 236 S.E.2d 617 (1977).

The Attorney General, that is, the State of Georgia's interest, as an employer in promoting the efficiency of the Attorney General's office's important public service outweighs plaintiff's personal associational interests in a lesbian marriage. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997), cert. denied, 522 U.S. 1049, 118 S. Ct. 693 , 139 L. Ed. 2 d 638 (1998).

Government employees subject to greater restrictions on associational right than private citizens. - It is clear that government employees may be subject to restrictions on the exercise of their rights of political association and expression beyond that permissible if applied to private citizens. Galer v. Board of Regents of Univ. Sys., 239 Ga. 268 , 236 S.E.2d 617 (1977).

Retaliation against public employee for exercise of right. - As is the case with free speech, the fact that a public employee is retaliated against for exercising constitutionally protected associational rights does not automatically render the retaliatory action unconstitutional. Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546 (11th Cir. 1987).

Demotion of a county correctional officer under a regulation prohibiting correctional officers from associating, corresponding, or doing business with active probationers unless they first receive special permission did not violate the officer's right of free association. Ross v. Clayton County, 173 F.3d 1305 (11th Cir. 1999).

School principal's actions constituting protected activity. - Where a former school principal alleged: (1) that the principal was denied a comparable position because the principal associated with parents and others who protested a school board's plan to close several schools; and (2) that the principal was denied a comparable position because the principal brought the principal's minister and a school board member to a meeting with the assistant superintendent concerning the principal's job assignment, the principal sufficiently alleged constitutionally protected associational activity. Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546 (11th Cir. 1987).

Fact that an under-30 candidate may not run for Lieutenant Governor does not deny right of association to those voters who might wish to "associate" with such a candidate by voting for that candidate. Traylor v. Democratic Party, 241 Ga. 429 , 246 S.E.2d 192 (1978).

Former Code 1933, § 91-134 (see O.C.G.A. § 50-16-11 ) was not facially overbroad nor so vague as to violate freedoms of assembly or speech. State v. Boone, 243 Ga. 416 , 254 S.E.2d 367 , cert. denied, 444 U.S. 898, 100 S. Ct. 206 , 62 L. Ed. 2 d 133 (1979).

Former Code 1933, §§ 91-134 (see O.C.G.A. § 50-16-11 ) and 91-9908 (see O.C.G.A. § 50-16-16 ) were not overbroad as sweeping within their prohibitions what may not be punished under U.S. Const., amends. 1 and 14. State v. Boone, 243 Ga. 416 , 254 S.E.2d 367 , cert. denied, 444 U.S. 898, 100 S. Ct. 206 , 62 L. Ed. 2 d 133 (1979).

O.C.G.A. §§ 50-16-14 and 50-16-16 , allowing removal of persons who cause disruptions in state buildings, did not violate first amendment guarantees of freedom of speech and the right to assemble peaceably and petition the government for redress of their grievances. State v. Storey, 181 Ga. App. 161 , 351 S.E.2d 502 (1986), cert. denied, 481 U.S. 1017, 107 S. Ct. 1895 , 95 L. Ed. 2 d 501 (1987).

Requirement that one judge of a court of limited jurisdiction be available on a 24-hour basis to issue warrants does not infringe on the right to assemble as guaranteed in the state and federal Constitutions. McCray v. Cobb County, 251 Ga. 24 , 302 S.E.2d 563 (1983).

Protection of right to discuss pros and cons of unions as part of free assembly. - The right to discuss, and inform people concerning, the advantages and disadvantages of unions and joining them is protected not only as part of free speech, but also as part of free assembly. McCallum v. Hinson, 489 F. Supp. 627 (M.D. Ga. 1980).

Unclear whether state must do business with contractor despite disapproval of associations. - Although there are limits placed on what adverse action a state may take against an employee who maintains associations thought undesirable by the state, it is not at all clear that the state may not refuse to do business with an independent contractor solely because it disapproves of the contractor's associations. Stone Mt. Game Ranch, Inc. v. Hunt, 570 F. Supp. 238 (N.D. Ga. 1983), aff'd, 746 F.2d 761 (11th Cir. 1984).

Termination of plaintiff's position as a parole review officer of the board of pardons and paroles after the plaintiff's election to county and state political party committees did not violate the plaintiff's constitutional rights of due process and equal protection or the plaintiff's constitutionally protected rights of political speech and association. MacKenzie v. Snow, 675 F. Supp. 1333 (N.D. Ga. 1987).

Required company affiliations for taxicab drivers. - A city ordinance that required all taxi drivers to be affiliated with a taxicab company and that required all taxicab companies formed after the ordinance's effective date to own or lease at least 25 vehicles did not violate the drivers' rights of association. Airport Taxi Cab Advisory Comm. v. City of Atlanta, 584 F. Supp. 961 (N.D. Ga. 1983).

Subpoena of brokerage records relating to association members upheld. - Neither the first amendment nor the fourth amendment required a federal district court to quash a subpoena to obtain a brokerage firm's records relating to members of an association, where the subpoena had been issued in connection with an investigation of possible criminal violations of the tax laws and the association's financial system may have been used to evade requirements for reporting taxable income. In re Grand Jury Proceeding, 842 F.2d 1229 (11th Cir. 1988).

Georgia "Anti-Mask Act", O.C.G.A. § 16-11-38 , which proscribes intimidating or threatening mask-wearing behavior, does not violate the constitutional rights of freedom of speech, freedom of association, and equal protection of the law. State v. Miller, 260 Ga. 669 , 398 S.E.2d 547 (1990).

Constitutionality of Georgia Street Gang Terrorism and Prevention Act. - Trial court properly denied the appellants' motion to dismiss various counts charging the appellants with gang-related crimes under the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., since properly construed O.C.G.A. § 16-15-4(a) did not directly or indirectly infringe upon the First Amendment right to freedom of association as, to support a conviction, gang conduct or participation was required. Further, reading of § 16-15-4(a) according to the natural and obvious import of the statute's language and in conjunction with the specific definitions in O.C.G.A. § 16-15-3 , the statute provided a sufficiently definite warning to persons of ordinary intelligence of the prohibited conduct and was not susceptible to arbitrary and discriminatory enforcement and did not reach a substantial amount of constitutionally protected conduct, thus, the statute was not unconstitutionally vague or overbroad. Rodriguez v. State, 284 Ga. 803 , 671 S.E.2d 497 (2009).

Terminated state employees had no protected rights of association. - Plaintiffs, whose jobs were terminated when their department was eliminated, neither alleged in their complaint nor presented any evidence to establish the existence at any time of an association which was entitled to special constitutional protection. Consequently, defendants did not violate any "clearly established statutory or constitutional rights of which a reasonable person would have known" with respect to plaintiffs and each was thus entitled to qualified immunity. Cummings v. DeKalb County, 24 F.3d 1349 (11th Cir. 1994), cert. denied, 513 U.S. 1111 , 115 S. Ct. 901 , 130 L. Ed. 2 d 785 (1995).

State flag. - African-American citizen's argument that the state flag, incorporating the stars and bars of the Confederate flag, compelled the citizen to be the courier of an ideological message that the citizen found morally objectionable failed because the flag on its face did not promulgate a sufficiently clear message of discrimination and because the record contained no evidence that the citizen was forced to acknowledge the flag in any way. Coleman v. Miller, 885 F. Supp. 1561 (N.D. Ga. 1995), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199 , 140 L. Ed. 2 d 328 (1998); Coleman v. Miller, 912 F. Supp. 522 (N.D. Ga. 1996), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199 , 140 L. Ed. 2 d 328 (1998).

Street Gang Terrorism and Prevention Act does not violate the right to freedom of association. - Appellant, a juvenile, was not entitled to the dismissal of two counts of street gang criminal activity based on the juvenile's contention that the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., was overbroad because the statute criminalized the constitutionally protected freedom of association; criminal gang activity was not a protected activity even when committed by a group exercising the group's constitutional right to free association. In re K.R.S., 284 Ga. 853 , 672 S.E.2d 622 (2009).

Redress of Grievances

Amendment extends to petitions for redress of grievances. - The first amendment, which protects controversial as well as conventional dialogue, extends to petitions for redress of grievances as well as to advocacy and debate. United States v. Northside Realty Assocs., 474 F.2d 1164 (5th Cir. 1973), cert. denied, 424 U.S. 977, 96 S. Ct. 1483 , 47 L. Ed. 2 d 747 (1976).

No governmental duty of action created by right of petition to redress grievances. - Plaintiff 's freely exercised first amendment right to petition various federal agencies for redress of grievances does not create in the government a corresponding duty to act. Gordon v. Heimann, 514 F. Supp. 659 (N.D. Ga. 1980).

Congressional power to require disclosures of lobbying activities not prohibited by right of redress of grievances. - Congress is not prohibited by the first amendment guaranty of the right to petition the government for redress of grievances from exercising measures of self-protection in requiring disclosures of lobbying activities; and since legislation in the area may be enacted, investigation by legislative agencies is authorized. Wilkinson v. United States, 272 F.2d 783 (5th Cir. 1959), aff'd, 365 U.S. 399, 81 S. Ct. 567 , 5 L. Ed. 2 d 633 (1961).

Use of agent or attorney to gain access to public official. - In order to petition the government for redress of grievances, one may employ an agent or attorney to use their influence to gain access to a public official. Moreover, once having obtained an audience, the attorney may fairly present to the official the merits of the client's case and urge the official's support for that position. Troutman v. Southern Ry., 441 F.2d 586 (5th Cir. 1971), cert. denied, 404 U.S. 871, 92 S. Ct. 81 , 30 L. Ed. 2 d 115 (1971).

Right of farmer to preejectment hearing absent state statute so providing. - Plaintiff, as a Georgia farmer, has a property interest in the farmer's business, i.e., selling merchandise at a public market, and could not be deprived of that interest without a due process preejectment hearing even in the absence of a state statute providing for such a hearing. Wilder v. Irvin, 423 F. Supp. 639 (N.D. Ga. 1976).

Collaborative effort to obtain grant for medical study not immune from antitrust litigation. - The decision by the National Eye Institute to financially underwrite a medical research study hardly constitutes the type of governmental decision making and policymaking that the Noerr-Pennington doctrine was designed to protect; it is thus unlikely that collaborative efforts to obtain federal grant money and to act pursuant to the protocol outlined in such a study is covered by Noerr-Pennington immunity from antitrust liability, which is rooted in the first amendment protection of the right to petition the government. Vest v. Waring, 565 F. Supp. 674 (N.D. Ga. 1983).

General Consideration

Validity of regulatory levy of license tax on newspapers absent statute. - While there is no statute dealing specifically with the question of prohibition against the levying of a license tax on newspapers by a municipality, if such a levy is determined to be regulatory in nature it would be in contravention to U.S. Const., amend. 1 and U.S. Const., amend. 14 and would therefore be null and void. 1950-51 Op. Att'y Gen. p. 115.

Constitutional guarantee of free press prohibits municipality from levying regulatory license tax on newspapers where such a levy subjects the newspaper to operational and expressional control by the municipality. 1950-51 Op. Att'y Gen. p. 115.

Statutes regulating amendment freedoms should be narrowly construed. - Statutes which possibly infringe on amendment rights under U.S. Const., amend. 1 and U.S. Const., amend. 14, should be narrowly construed, and construed as explicit, not vague, so as to avoid the question of the statute's constitutionality whenever possible. 1977 Op. Att'y Gen. No. 77-15.

Requirement that student undergo physical before athletic participation not infringement on parental rights. - State Board of Education policy or standard requiring physical examination of student prior to participation in interscholastic athletic activities does not infringe upon parental rights under U.S. Const., amend. 1. 1977 Op. Att'y Gen. No. 77-78.

Free Exercise of Religion

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Freedom of religion protected against state encroachment. - Freedom of religion constitutes one of those fundamental principles of liberty and justice embraced within the concept of substantive due process and hence guaranteed against state encroachment by U.S. Const., amend. 14. 1960-61 Op. Att'y Gen. p. 349.

Use of prison labor to clear church grounds. - Use of prison labor gratuitously to clear and maintain church grounds and cemeteries violates constitutional limitations on separation of church and state. 1960-61 Op. Att'y Gen. p. 349.

Use of state funds by Department of Offender Rehabilitation for prison chaplains. - State Board of Corrections (now Department of Offender Rehabilitation) can expend state funds for employment of chaplains and construction and maintenance of chapels in the various prison branches and can legally permit religious organizations to conduct services in such chapels. 1960-61 Op. Att'y Gen. p. 361.

State may hire staff of prison chaplains whose duties are nonsectarian without violating establishment clause of U.S. Const., amend. 1. If the hiring of prison chaplains did infringe upon the establishment clause of U.S. Const., amend. 1, it would be sustained on constitutional grounds as necessary to secure the prisoner's right of worship as guaranteed under the free exercise clause of U.S. Const., amend. 1. 1974 Op. Att'y Gen. No. 74-3.

Position of religious therapy program director constitutional if duties nonsectarian. - State Merit System's creation of the position of religious therapy program director in the Department of Offender Rehabilitation is not in violation of U.S. Const., amend. 1 so long as his duties are nonsectarian. 1974 Op. Att'y Gen. No. 74-3.

Employment of religious therapy program director. - Employment of religious therapy program director for state prisons does not violate the establishment clause of U.S. Const., amend. 1. 1974 Op. Att'y Gen. No. 74-3.

Georgia Residential Finance Authority may lend general reserve funds to religiously-motivated housing sponsor which charges in-kind interest, provided the funds are not encumbered or derived from the public treasury, the authority's own purpose is secular and nondiscriminatory, the program in fact is financially sound and secular, and it can be monitored without entanglement. 1988 Op. Att'y Gen. No. 88-15.

Christmas displays at capitol rotunda. - Georgia Building Authority's presentation of a nativity scene as a part of a planned Christmas program in the capitol rotunda would be in violation of both the Georgia and United States Constitutions. Additionally, the unattended display of a Menorah in front of the capitol would be in violation of the establishment clause of the United States Constitution. However, a Menorah candlelighting ceremony conducted by private citizens in front of the capitol would not violate the Constitution of the United States or the Georgia Constitution. 1990 Op. Att'y Gen. No. 90-38.

University's recognition of a student organization that requires its voting members to profess its religious beliefs would not violate U.S. Const., amend. 1. 1997 Op. Att'y Gen. No. 97-32.

University student internship at sectarian facility. - There is no legal impediment to a university system institution's allowing a student to satisfy an internship at a sectarian facility which limits employment to persons of its particular religious faith or persuasion. 2001 Op. Att'y Gen. No. 2001-01.

Teaching about Bible in public schools. - Public school courses that include references to the Bible may survive first amendment scrutiny only if their content is determined to be secular and they are taught in a secular, objective manner. 1999 Op. Att'y Gen. No. 99-16.

Law regulating used motor vehicle dealers. - The failure of the Used Motor Vehicle Dealers' and Used Motor Vehicle Parts Dealers' Registration Act ( § 43-47-1 et seq.) to include an exemption for religious organizations does not violate U.S. Const., amend. 1. 1999 Op. Att'y Gen. No. 99-8.

Statutory provisions deemed constitutional. - The "respect for the creator" portion of the character education program authorized by O.C.G.A. § 20-2-145 and the provision of O.C.G.A. § 50-3-4.1 allowing display of the motto "In God We Trust" in public do not violate the separation of church and state provisions of either the state or federal constitution. 2000 Op. Att'y Gen. No. 2000-9.