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Some Unanswered Questions About the Application of the Contemporary Community Standard

In every society, certain segments of the population have risen up in protest against what they perceive to be repulsive to their sensibilities. The situation today in the United States is no different. With parent and religious organizations pressuring the courts, law enforcement agencies, and the school boards of the nation to help them put an end to obscenity, the issue of obscenity is frequently in the media, town discussions, school board meetings, and the courtroom. Many problems arise in this area because most people have differing views about what is to be considered obscene. Without a clearly established bench mark by which all material and performances can be uniformly judged, the problem of what to classify as obscene will continually haunt our public agencies.

The focus of this paper will be a brief look at the major United States Supreme Court decisions to determine, in general, the basic legal standard for establishing obscenity. Once the standard is announced, the focus will narrow to a discussion of some of the unanswered questions about one aspect of the standard, i.e., the "community standard" that is to be applied.

OBSCENITY: Establishing a legal standard

Obscenity is an illusive term that is often used but never precisely defined. Over the years, courts of this nation have grappled with the difficult task of defining exactly what constitutes obscenity and have in all cases failed. The current definition, however, is generally effective in a sterile courtroom setting where the finder of fact applies the legal standard to the material or performance that is claimed to be obscene.

In one of its first major attempts to define the obscure concept of obscenity, the United States Supreme Court in Roth v United States, 354 U.S. 476 (1957)(citing Chaplinsky v New Hampshire, 315 U.S. 568, 571-572 (1941)), stated that "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." 354 U.S. at 484. The court then went on to state "that obscenity is not within the area of constitutionally protected speech or press." 354 U.S. at 485.

After finding that obscenity was not a protected genre of free speech, the court was then faced with having to define what it was that would be considered obscene and would, therefore, necessarily be "utterly without redeeming social importance." The court's formulation for establishing obscenity was for the fact finder to determine whether "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." 354 U.S. at 489.

If the average person, applying the prescribed standard, would find this "prurient" appeal, the material would be found obscene. The court's definition of "prurient" was "material having a tendency to excite lustful thoughts." 354 U.S. at 487 n.20. Something (i.e., material or performance) that only appeals to "normal, healthy sexual desires" is not considered to appeal to prurient interest. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1985). To show that the interest is not simply in "normal, healthy sexual desires," the interest must be shown to be a "shameful or morbid interest in nudity, sex, or excretion." 472 U.S. at 498 (citing Roth v. United States, 354 U.S. at 487 n.20).

In 1966, the United States Supreme Court in Memoirs v. Massachusetts, 383 U.S. 413 (1966), formulated a new test for defining obscenity. While building on the Roth test, the Memoirs court rejected the Roth idea that obscenity was automatically presumed to be "utterly without redeeming social importance." With the Memoirs test, the "utterly without redeeming social importance" element had to be proved affirmatively. The new test also required a finding that the material was patently offensive as it relates to sexual matters. Thus, under the Memoirs test it had to be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. (Emphasis added.)
383 U.S. at 418.

By 1973, the United States Supreme Court was ready for a reformulation of what had proved to be an unworkable standard. In Miller v. California, 413 U.S. 15 (1972), the court found that the "utterly without redeeming social value" requirement was a "burden virtually impossible to discharge under our criminal standards of proof." 413 U.S. at 22. In fact, such a requirement actually forced "the prosecutor to prove a negative." 413 U.S. at 22.

Recognizing the need to be very careful in "undertaking to regulate any form of expression," the court "confine[d] the permissible scope of such regulation to works which depict or describe sexual conduct." 413 U.S. at 23-24. "The sexual conduct that is to be regulated must be specifically defined by the applicable state law." 413 U.S. at 24. The court then limited state offenses "to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." 413 U.S. at 24.

By applying these ideas and limitations to the Roth and Memoirs tests, the court established the basic legal standard for identifying obscenity. That test was to determine
(a) whether "the average person applying contempory community standards" would find that the work, taken as a whole, appeals to the prurient interest; [citation omitted] (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.
413 U.S. at 24.

Because the concepts of what appeals to "prurient interest" and what is "patently offensive" in parts (a) and (b) of the test would naturally vary (though to different degrees) from community to community, the Miller court recognized the necessity of having "the average person, applying contemporary community standards" determine whether each test is met on a case-by-case basis. 413 U.S. at 30. The average person standard requires the fact finder to consider the attitudes and beliefs of the most tolerant as well as the most sensitive members of the community in arriving at what the average person's attitudes and beliefs would be. Smith v. United States, 431 U.S. at 304-305 (1977). The issue the court did not address in this regard was whether the value that is required by the third prong of the test is to be determined to exist or not to exist by "the average person, applying contemporary community standards."

In Pope v. Illinois, 481 U.S. 497 (1987), the court was specifically called upon to decide "whether...the jury may be instructed to apply community standards in deciding the value question." 481 U.S. at 498-499. The court held that an objective test is required by stating, "[t]he proper inquiry is...whether a reasonable person would find [serious literary, artistic, political, or scientific] value in the material, taken as a whole." 481 U.S. at 500-501. Thus, the first two prongs of the Miller test are governed by the average person/contemporary community standard while the third prong is to be governed by the objective, "reasonable person" standard.

The United States Supreme Court decisions discussed above, though developing the legal test for obscenity, have been less than specific as to what community is to be considered or what standards are to be applied by the fact finders when they put themselves into the shoes of the hypothetical average person. This is where the unanswered questions arise.

"COMMUNITY STANDARDS": The unanswered questions

What is patently offensive will vary from community to community to a greater degree than what appeals to prurient interest. It appears that, as a practical matter, the test for determining if something appeals to prurient interest is closer to an objective test that is to be applied by the average person in the community, whereas what is patently offensive is closer to a subjective reaction of the average person when applying "contemporary community standards." Because of this practical distinction, the "contemporary community standard" has developed somewhat differently for the concept of patent offensiveness than it has for the concept of prurient interest.

The "contemporary community standard" element does not give a prosecutor or defense counsel much to go by when trying to determine if something is obscene. What is to be the particular standard in the community? At one extreme, the standard might be that something would be obscene if it would offend the general decency of the community. At the other extreme, something would be obscene only if the community cannot tolerate it. Obviously, defense counsel will argue for the application of the most tolerant standard, whereas the prosecution will argue for the application of the least tolerant standard. What standard is to be applied?

"The Supreme Court has never directly addressed [this] issue" and has failed to establish an across-the-board standard to be applied in all jurisdictions. People v. Seven Thirty-Five East Colfax, Inc., 697 P2d 348, 360 (Colo. 1985). However, the current trend seems to indicate that the "tolerance standard" has grown, and will continue to grow, in favor with the courts--at least as to the somewhat subjective issue of what constitutes patent offensiveness.

The idea of a "tolerance" standard seems to have as its origin Justice Harlan's separate opinion in Smith v. California, 361 U.S. 147 (1959). In his opinion, Justice Harlan stated that "the Fourteenth Amendment does not permit a conviction...unless the work complained of is found substantially to exceed the limits of candor set by contemporary community standards. The community cannot condemn that which it generally tolerates." 361 U.S. at 171 (Harlan, J., concurring and dissenting)(emphasis added).

The United States Supreme Court later stated that "contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community." Smith v. United States, 431 U.S. 291, 305 (1977)(emphasis added). Even though the court was not specifically addressing the issue of the standard to be used, and its language, therefore, is pure dictum, its intent appears clear.

Despite this apparent clarity, the court in Andrews v. State, 652 S.W.2d 370 (Tex. Crim. App. 1983), failed to apply a tolerance standard. In refusing the tolerance standard, the court interpreted Miller to imply that "merely because much material is tolerated in one community does not necessarily mean that such material is acceptable to the average person in that community when applying contemporary community standards." 652 S.W.2d at 379. The court went on to quote all of the Supreme Court tolerance language from Miller, Smith v. United States, and New York v. Ferber, 458 U.S. 747 (1982), as a prelude to concluding that "none of the foregoing statements, observations or remarks by the Supreme Court was intended or designed to define current community standards of obscenity in terms of tolerance." 652 S.W.2d at 388-389.

Merely two years after the decision in Andrews, the court in People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo. 1985), cited the same three United States Supreme Court cases as Andrews and quoted virtually the same quotes. However, in People, the court concluded, "[t]he fact that the [United States Supreme] Court has consistently used the word 'tolerance' is a fact of critical importance." 697 P.2d at 360. Citing numerous federal and state decisions, the Court went on to state that "[t]he 'tolerance' versus 'decency' controversy has been considered by a number of other courts. The majority have concluded that a standard of 'decency' or 'indecency' violates federal and/or state constitutional free speech guarantees BECAUSE A TEST OF TOLERANCE IS REQUIRED." 697 P.2d at 360 (emphasis added). The court concluded its discussion of the standard by holding that "a tolerance standard is required under the first amendment to the United States Constitution." 697 P.2d at 361.
Thus, as the court in People makes clear, at least as far as patent offensiveness is concerned, the majority of courts that have dealt with the issue of which standard to apply have adopted the "tolerance standard." In the face of this growing trend and the compelling argument made by the court in People, those courts that have not addressed this issue will likely follow on this same path. However, in the absence of a United States Supreme Court ruling, the question of which standard to apply remains unanswered.

A second question that remains unanswered is, which community's standard is to be applied? At one extreme the community could be almost as large and as generalized as a national community. At the other extreme, the community could be as small and as specific as the city block from which the material or performance complained of was promoted. The desired community, for both the prosecution and defense, will depend on the tolerance of the people in the specific area where the material or performance was promoted, as compared to the tolerance of the larger community in general. If the tolerance in the specific area is greater, the defense will want to limit the community of consideration to the narrow area of promotion to take advantage of the higher tolerance. The prosecution will seek application of the larger, less tolerant community's standards. The opposite would be true if the tolerance of the specific community were less than the tolerance of the larger community.

The Court in Miller held that a national standard is not required. The Court stated:
[u]nder a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the 'prurient interest' or is 'patently offensive'...To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility. 413 U.S. at 30 (emphasis in original). To make its point, the Court used an often quoted and highly effective example. The Court said, "It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City." 413 U.S. at 32 (emphasis added).

In Hamling v. United States, 418 U.S. 87 (1973), the Court once again addressed the community issue. The Court appeared to want to clarify the Miller conception of the proper community by stating,

The result of the Miller to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion "the average person, applying contemporary standards" would reach in a given case. 418 U.S. at 105.

This still appears to be of no practical help. All jurors necessarily come from the United States, a state of the United States, a county of the state, and a city or town of the county. How wide or narrow will the community of consideration be required or allowed to be?

In Jenkins v. Georgia, 418 U.S. 153 (1973), the Court held that "[a] State may choose to define an obscenity offense in terms of 'contemporary community standards'...without further specification...or it may define the standards in more precise geographical terms." 418 U.S. at 157.

The court in Skyywalker Records, Inc. v. Navarro, 739 F. Supp 578 (S.D. Fla. 1990), chose the second option given by Jenkins and defined the community of consideration in "precise geographical terms." The court held that the "size of the appropriate community, its composition, and the views of the average person in that group are all questions of fact to be decided by the trier of fact." 739 F. Supp at 587. Because the court was the finder of fact in this case, it had to determine these issues. It held that the appropriate size of the community in this particular case was "three adjoining counties." 739 F. Supp at 588.

This is a significant departure from the abstract, generalized community standard concept, and it is an important departure from the state-wide community standard. The logical question is whether this has opened the door for future narrowing of the community from which the appropriate standard is to be determined. The slow trend would appear to show the potential for future narrowing. However, like the previous question, the question about what size the community of consideration is required or allowed to be, remains unanswered until the United States Supreme Court rules.

Now assuming, arguendo, that all material and performances are to be judged by what the community will tolerate and that the community is always composed of a three-county area around where the material or performance was promoted, common sense would indicate that there are going to be some practical as well as potential constitutional problems. Obviously, something that would be considered obscene in one community would not necessarily be obscene in another. "What shocks me may be sustenance for my neighbor." 413 U.S. at 40-41 (Douglas, J., dissenting).

What this means is that what is constitutionally protected free speech or press in one state or county may not be in another because of the local tolerance or because of local judicial whim. Thus, "[n]ational distributors choosing to send their products in interstate travels will be forced to cope with the community standards of every hamlet into which their goods may wander." 418 U.S. at 144 (Brennan, J., dissenting).

Fear of distributing material into a "hamlet" that would find it obscene could lead to a society where certain material is not distributed freely, or to a society where material is censored heavily by the distributor before distribution. Do we want the fear that could make dissemination of ideas limited and self-censoring, or do we want free dissemination of ideas? Or is there some middle ground? A national standard? Or would this lead to a standardized mediocrity of ideas.


After examining a couple of the unanswered questions about the contemporary community standard, the ultimate unanswered question that remains is, "What is obscenity?" "[O]ne cannot say with certainty that material is obscene until five members of [the United States Supreme] Court, applying inevitably obscure standards, have pronounced it so." Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 92 (Brennan, J., dissenting). Thus, obscenity continues to defy precise definition. Maybe we will all be perceptive enough to know it when we see it! Jacobellis v. Ohio, 378 U.S. 184,197 (Stewart, J. concurring).

*article courtesy of Mr. Parker is the former prosecuting attorney of Dent County, Missouri and currently serves as Vice-Chair of the Criminal Law Committee in the Missouri House of Representatives.

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