Obscenity Case Files: Pope v. Illinois

Miller v. California set the standard for identifying obscene material that is not protected by the First Amendment. However, some portions of the standards set by Miller are clearer than others. In this edition of the Obscenity Case Files, we’ll take a look at the Pope Decision, which clarified who or what determines which works have serious literary, artistic, political, or scientific value.

The Definition of “Obscene”

Because obscenity is not protected speech, states generally are free to pass laws that make it illegal to produce, publish, sell, or otherwise circulate “obscene” works without running afoul of the First Amendment. In the seminal obscenity case, Miller v. California (1973), the US Supreme Court famously laid out its current three-part test for determining whether a work is obscene. According to the Miller court, the First Amendment does not protect works that satisfy the following elements:

  1. An average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to “the prurient interest” (the definition of prurient interests is a whole ‘nother can of worms that will probably be addressed later in this obscenity series);
  2. The work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and
  3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value

It’s important to note that a work is not “obscene” unless it satisfies all three of the above elements. For example: A book, magazine, or movie that contains so much sexual content that it appeals to the average person’s “prurient interests” (element 1) and depicts or describes the sexual content in a way that has been outlawed in a state obscenity statute (element 2) is still not obscene or illegal unless a jury decides that the whole comic book lacks serious literary, artistic, political, or scientific value (element 3).

How To Determines If A Work Has “Serious Value”

Post Miller, it was unclear exactly how to assess whether a work lacked serious literary, artistic, political or scientific value (the third element in the Miller test). The Miller decision left it to the states to determine whether a work’s “value” should be measured by using a national standard (i.e. would the average American consider the work to have value), a state standard (i.e. whether the average citizen of a particular state would consider the work to have value), a community standard (i.e. whether the average member of a select community or fan base would consider the work to have value), a reasonableness standard (i.e. whether an ordinary, reasonably prudent person would objectively consider the work to have value), or some other gauge.

Obviously, this was an important distinction, as the standard used could potentially dictate the outcome of an entire case. Consider comic books. Your average Nebraskan probably has a more conservative opinion on whether a sexually explicit comic book has literary, artistic, political or scientific value than your average American, just as your average comic book fan probably has a more liberal opinion on whether the comic book has value than your average American. In such a case, the type of standard the court applied could very well have made the difference between guilt and innocence.

The Pope Decision

In Pope v. Illinois (1987), the Supreme Court was tasked with determining which standard was best for assessing whether allegedly obscene material contains serious literary, artistic, political, or scientific value. Richard Pope, a clerk at an adult book store, was arrested for violating an Illinois state criminal statute prohibiting the sale of obscene magazines. A trial court found him guilty as charged, fined him $3,000, and sentenced him to 360 days in prison. Pope eventually appealed his case all the way to the Supreme Court, where he argued that his conviction should have been overturned because the Illinois court improperly relied on the community standard in finding the magazines he sold lacked “social value.”

The Supreme Court agreed with Pope, ruling that the community standard was inappropriate for determining whether a work had “value.” Specifically, the court held:

“Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won.”

The Court went on to clarify:

The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.”

Post Pope

As a result of the Pope decision, courts now use a “reasonable person” standard to determine whether an otherwise obscene work has serious literary, artistic, political, or scientific value. In other words, in any obscenity case, the jury is instructed to determine whether a reasonably prudent person could objectively consider the work to have value. For First Amendment advocates, this standard is certainly better than a subjective or community based standard; however, as Justice Scalia and Justice Stevens point out in their concurring and dissenting opinions, the person standard still leaves defendants at the whim of juries that account for their own personal taste in assessing what a reasonable person would find value in.

From Justice Scalia’s concurring opinion:

I must note, however, that in my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can. Since ratiocination has little to do with esthetics, the fabled “reasonable man” is of little help in the inquiry, and would have to be replaced with, perhaps, the “man of tolerably good taste” — a description that betrays the lack of an ascertainable standard. If evenhanded and accurate decision making is not always impossible under such a regime, it is at least impossible in the cases that matter. I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it.

From Justice Stevens’ dissenting opinion:

“The problem with this formulation is that it assumes that all reasonable persons would resolve the value inquiry in the same way. In fact, there are many cases in which some reasonable people would find that specific sexually oriented materials have serious artistic, political, literary, or scientific value, while other reasonable people would conclude that they have no such value. The Court’s formulation does not tell the jury how to decide such cases.

In my judgment, communicative material of this sort is entitled to the protection of the First Amendment if some reasonable persons could consider it as having serious literary artistic, political, or scientific value.”

Although, as the two justices pointed out, the Pope decision does not completely ensure that a work’s value will be assessed under a totally objective standard, it does protect works from censorship by sheltered or close-minded communities. For comic book creators and retailers, the Pope decision at least guarantees they will have the opportunity to demonstrate that their works have merit in a society that values its First Amendment right to free speech.

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Rick Marshall is an attorney who recently finished work on a legal master’s degree in Intellectual Property law at the George Washington University Law School.