Pope v. Illinois — Serious Value According to Whom?

Obscenity is an exception to First Amendment free speech protection. This doesn't mean obscenity is automatically illegal; it means states can choose to restrict it. For example, the following is a misdemeanor in Nebraska:

"It shall be unlawful for a person knowingly to (a) print, copy, manufacture, prepare, produce, or reproduce obscene material for the purpose of sale or distribution, (b) publish, circulate, sell, rent, lend, transport in interstate commerce, distribute, or exhibit any obscene material, (c) have in his or her possession with intent to sell, rent, lend, transport, or distribute any obscene material, or (d) promote any obscene material or performance."
— Nebraska Revised Statute 28-813

Where "obscene" is defined as meaning:

"(a) that an average person applying contemporary community standards would find that the work, material, conduct, or live performance taken as a whole predominantly appeals to the prurient interest or a shameful or morbid interest in nudity, sex, or excretion,
(b) the work, material, conduct, or live performance depicts or describes in a patently offensive way sexual conduct specifically set out in sections 28-807 to 28-829, and
(c) the work, conduct, material, or live performance taken as a whole lacks serious literary, artistic, political, or scientific value;"
— Nebraska Revised Statute 28-807 (emphasis added)

This language is taken from the Supreme Court's Miller Test for obscenity. What's interesting about the Miller Test is that all three parts must hold to classify material as "obscene." A photograph could, for example, be judged by "contemporary community standards" to appeal to sexual interest as a whole, it could depict state-defined sexual conduct in a "patently offensive way," yet if it contains "serious literary, artistic, political, or scientific value" it would not be legally obscene.

Pope v. Illinois was a 1987 Supreme Court case which looked at the "serious value" test. Specifically:

"whether, in a prosecution for the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question."

Why is this important? Suppose there's a novel with sexual elements that most people would find offensive. In Oregon, it's legal because people in Oregon still see literary value in it. In Alabama, it's obscenity and you can go to jail for selling the book because people in Alabama don't see literary value in it. I'm picturing Burt Reynolds hauling banned books across state lines.

Case Background

Rockford, Illinois in 1983. Police arrest two part-time clerks in an adult book store for selling porn mags. The clerks are convicted for selling obscenity. (This makes me wonder what officials thought adult bookstores normally sold.)

In both trials, the jury was instructed to decide the question of value according to how "ordinary adults in the whole State of Illinois" would view these magazines. Both clerks were convicted. Both lost Appellate Court appeals. The Illinois Supreme Court passed, but the U.S. Supreme Court took up the issue.

In a majority decision, the Supreme Court decided:

"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 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." — Opinion of the Court (emphasis added)

The Supreme Court also decided to send the case back to the Appellate Court to determine whether convictions based on constitutionally faulty jury instructions would be upheld. (See the text of the case for a lively debate about "harmless error.") I had trouble finding out the ultimate fate of the clerks.

Communities and Reasonable Persons

When reading Pope, I kept wondering, "How is 'community' defined? The state, the city, or what?" So I went back and skimmed through Miller v. California. In that case, it's made clear that the "forum community" is meant, i.e. for a California state law the forum community would be the whole state of California. Presumably for a city ordinance, it would be that whole city.

If a state-wide community doesn't get to decide whether a work has "serious literary, artistic, political, or scientific value," who does decide? One answer might be: the entire community of the United States of America. This would make decisions more consistent across state lines, but we could have situations where the people of Oregon see value in a work that Americans as a whole might not esteem. And there may be works of great artistic value to a broadly scattered fanbase that aren't esteemed by any one geographic community as a whole.

Happily, the Court rejected "community standards" outright when it comes to determining value (see the bold text I quoted above). Unhappily, the replacement standard of what "a reasonable person" would find valuable isn't very helpful. Ask a jury to decide whether a reasonable person would find value in a "patently offensive" film and — I suspect — they would take themselves to epitomize reasonable people, note that they themselves don't see value in it, and answer accordingly.

What is Beauty?

In a concurring opinion, Justice Scalia questions the entire notion of legally judging artistic value:

"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. For the law courts to decide "What is Beauty" is a novelty even by today's standards."

I'm not used to wholeheartedly agreeing with Scalia! Another approach with similarly broad results comes from Justice Stevens' dissent. Referring again to the bold text I quoted above, Stevens writes:

"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."

You can guess by now that both Scalia and Stevens are questioning the utility of having obscenity laws at all, at least as far as consenting adults are concerned. Stevens goes even farther and argues that such laws are unconstitutional because the difference (in this case) between legal pornography and illegal obscenity is not something the clerks could have been expected to know before being charged and convicted:

"Under ordinary circumstances, ignorance of the law is no excuse for committing a crime. But that principle presupposes a penal statute that adequately puts citizens on notice of what is illegal. The Constitution cannot tolerate schemes that criminalize categories of speech that the Court has conceded to be so vague and uncertain that they cannot 'be defined legislatively.' [...] If a legislature cannot define the crime, Richard Pope and Michael Morrison should not be expected to. Criminal prosecution under these circumstances 'may be as much of a trap for the innocent as the ancient laws of Caligula.'"

(You can't see it, but I'm applauding here.)

Finally, Stevens points out that mere possession of obscenity is legal and he characterizes laws against selling or distributing obscenity as an "insult" to a citizenry that has the "right to read and possess material which it may not legally obtain."

I agree and consider obscenity laws — "absent some connection to minors, or obtrusive display to unconsenting adults" — to be outdated relics of a less tolerant age.

Text of Pope v. Illinois, 481 U.S. 497 
Text of Miller v. California, 413 U.S. 15