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Pope v. Illinois

Supreme Court of the United States · 1987 · Constitutional Law

Constitutional LawFirst AmendmentObscenityobscenityMiller testcommunity standardsreasonable personFirst Amendment

Facts

Police detectives bought magazines from each petitioner, who worked as attendants at an adult bookstore in Rockford, Illinois. Each was charged under the then-current Illinois obscenity statute for selling those magazines. Petitioners argued that the statute was unconstitutional because it did not require the value question to be judged objectively rather than by contemporary community standards. The trial courts rejected that argument and instructed the juries to determine obscenity based on how ordinary adults in the whole State of Illinois would view the materials, and both petitioners were convicted.

Issue

In an obscenity prosecution for sale of allegedly obscene materials, may the jury be instructed to apply community standards when deciding whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value? If that instruction is unconstitutional, may the convictions nevertheless be affirmed if the error was harmless?

Rule

Under the third prong of the Miller test, the proper inquiry is not whether an ordinary member of a community would find serious literary, artistic, political, or scientific value in the material, but whether a reasonable person would find such value in the material, taken as a whole. An erroneous instruction using community standards on that value question is unconstitutional, but the conviction may stand if a reviewing court concludes beyond a reasonable doubt that no rational juror, properly instructed, could find value in the material.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, Arizona, Lena Ortiz is prosecuted for selling an explicit graphic novel at a store restricted to adults. The trial judge instructs the jury that, to decide whether the work lacks serious artistic value, it should ask whether ordinary adults in Arizona would think the work has such value.

Is the instruction constitutionally proper on the value prong?

Explanation. The majority held that there is no basis for using community standards to determine whether a work lacks serious literary, artistic, political, or scientific value. That question is evaluated under a reasonable person standard, and the work must be considered taken as a whole. A statewide community standard is still a community standard and is therefore unconstitutional for this prong. (Derived from Pope v. Illinois (n.d.).)