Tennessee appeals court reverses businessman’s obscenity convictions

Monday, August 16, 1999

The Tennessee Court of Criminal Appeals has reversed the obscenity convictions of an adult bookstore owner, finding that prosecutors failed to show the businessman “knowingly” violated the state's obscenity law.

Prosecutors charged Jerry Pendergrass with two obscenity violations — distribution of obscene matter and possession with intent to distribute obscene matter — after an undercover police officer purchased the sexually explicit videotape “Half and Half” from Chattanooga's Broad Street Video in 1996.

A jury convicted Pendergrass for violating the following law:

“It is unlawful to knowingly produce, send or cause to be sent … into this state for sale, distribution, exhibition or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute any obscene matter.”

The legal issue on appeal dealt with the definition of “knowingly.” Pendergrass' attorneys insisted that their client could only be convicted of obscenity if he was aware that the material sold was obscene.

The state argued that while Pendergrass may not have had actual knowledge that the videotape was obscene, he had “constructive knowledge” that the tape violated the obscenity law. Tennessee law provides that a person has constructive knowledge of something if he or she “has knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material.”

However, in its Aug. 12 opinion in State v. Pendergrass, the state appeals court ruled that Pendergrass could be convicted “only if there is sufficient proof of record of actual knowledge of the proscribed conduct.”

The appeals noted that the prosecution never established Pendergrass' degree of involvement with the business. “There was no evidence, for example, that Pendergrass was observed on the premises and/or engaged in activities such as assisting customers with purchases, stocking shelves, receiving merchandise, or ordering merchandise,” the court wrote.

The court ruled that just because “the defendant possessed the material does not per se establish that he knowingly did so.”

Though it reversed Pendergrass' convictions, the appeals court rejected the defense's constitutional argument that the criminalization of the distribution of obscene materials violates the fundamental rights of consumers of obscenity. The court cited several cases stating that obscenity is not protected expression under the First Amendment to the U.S. Constitution and the free-speech provision of the Tennessee Constitution.

“I would read this opinion to mean that simple ownership of a business is not sufficient for an obscenity conviction,” John Herbison, one of Pendergrass' attorneys, told The Tennessean.

Sharon Curtis Flair, public information officer for the Tennessee Attorney General's Office, said: “We have no specific comment about the decision because it is still in litigation. We are reviewing all of our options in deciding whether to appeal.” She said that the attorney general might either seek a rehearing before the Tennessee Court of Criminal Appeals or appeal directly to the Tennessee Supreme Court.