Miller Obscenity : Identifying, documenting, or mapping "Community Standards"

In another thread, an interesting comment was made about the importance of “community standards” in US prosecutions involving obscenity.

Outside of court, have there been any meaningful attempts to identify, document, or map the “contemporary community standards” that are spoken about in Miller-related legal speak?

Geographical demography has become quite advanced - you can now punch in a zip code to a website to find information about local economic conditions, average educational attainment (wow, Podunk residents have a 40% below average percentage of master’s degrees per capita), local accents or dialects, political attitudes (e.g. percentage of people who voted Democratic, or support gun control), ancestral and cultural identification (high percentage of avowed French Canadians in Maine, not so much in Arkansas), religion (e.g. 35% Catholic, 15% Mormon, etc.), and other demographic stuff.

I’m not seeing, however, any easy way to look up the contemporary community standards (or even a reasonable statistical estimation thereof) of the places that I regularly visit or travel through. Common sense tells me that the contemporary community standards of much of downtown San Francisco are much, much more liberal than the contemporary community standards of most of rural Utah, but I can’t figure out how far east I can travel from San Francisco until one of the many porno DVD’s in the back of my truck beings to violate the contemporary community standards of the backwater community that I’m passing through.

I always had the impression that it was one of the many things in Anglo-American law that is left vague. For laymen, frustratingly vague. Basically, you were making a calculation based on your knowledge of local juries and prosecutors and their priorities. The Internet seems to have relegated the concept to ancient history.

But in the 1970s and 80s, there were places known to be especially harsh on pornography. Tulsa and Cincinnati come to mind. I never went to see the film in question myself, but I remember my First Amendment professor joking about Tulsa being the only place in the country where Deep Throat had no fellatio in it.

Which goes against the general principle in Anglo-American law that the criminal law is suppose to be understandable by an average person who is actually willing to take a little time to try to understand it.

As an anecdote, I lived in one community for twelve years but never managed to get any meaningful grip on the contemporary community standards - I wouldn’t even know where to begin! While I knew a few people who lived nearby, the people who lived 10 doors down could have been Martians for all I knew - I didn’t know who they were, what (if anything) they believed about sexual matters, and where they came from in life. I could AssUMe that they were probably somewhat but not exactly quite the same as me, but you know what happens when you do that. To expect J. Random Pornographer to drive into town, scrutinize the homes, and say, yup, the contemporary community standards can be described by the following five bullet points… is clearly absurd.

Has a court, legislature, or law review article ever described a process whereby a concerned wannabe pornographer can reasonably identify the contemporary standards in a community in advance as a protective measure against being seen as a potential lawbreaker? E.g. community polling vans, peer-reviewed sociodemographic studies, cross-analysis of local education attainment statistics against Johnson’s (1995) Index of Educational Attainment and Sexual Attitudes Correlation Atlas?

I suppose a person interested in finding out the legal attitude towards prurience could research the local legal records for convictions on the subject. But I don’t know how much work that entails. Also, I don’t know how much weight it could have in court. It might provide a good rule of thumb to a prospective producer if he finds a lot of local convictions for “smut production.” But if he doesn’t find any convictions, that doesn’t necessarily mean it’s OK. It could just be a lack of arrests springing from a lack of the activity.

IANAL. My impression from reading about many censorship cases is that the community standards test is considered to be bad law because it winds up giving the most closed-off community in the country the power to apply that standard on nationally distributed products.

If there is anything left to the law, then it would be applied locally to individual works. In those cases local attitudes might matter without ever having to quantify them against other localities.

I did a quick search in Google News. I couldn’t find any U.S. cases involving community standards law. The term has been stretched, however, for use everywhere. Facebook, e.g., has its own “community standards,” a complete reversal of the original meaning of the term.

I did find a Canadian example:

It’s nonsense like this that doomed continued application.

I wouldn’t say it’s bad law, but it certainly is an area that the courts have struggled with. The dissents in the obscenity cases that came after Millerdemonstrate that some Justices had real misgivings about not just the feasibility of applying the three prong test, but even about the constitutionality of banning obscene materials! For example, in Pope v. Illinois, the dissenting Justices (and even Scalia in his concurrence) had some fairly scathing things to say about the Miller test and even the idea that obscene materials were outside First Amendment protections:

[QUOTE=Justice Scalia]
I join the Court’s opinion with regard to an “objective” or “reasonable person” test of “serious literary, artistic, political, or scientific value,” Miller v. California, 413 U. S. 15, 24 (1973), because I think that the most faithful assessment of what Miller intended, and because we have not been asked to reconsider Miller in the present case. 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.
[/QUOTE]

[QUOTE=Justice Brennan]
I write separately only to reiterate my view that any regulation of such material with respect to consenting adults suffers from the defect that “the concept of `obscenity’ cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 103 (1973) (BRENNAN, J., dissenting).
[/QUOTE]

[QUOTE=Justice Stevens]
The Court correctly holds that the juries that convicted petitioners were given erroneous instructions on one of the three essential elements of an obscenity conviction. Nevertheless, I disagree with its disposition of the case for three separate reasons: (1) the error in the instructions was not harmless; (2) the Court’s attempt to clarify the constitutional definition of obscenity is not faithful to the First Amendment; and (3) I do not believe Illinois may criminalize the sale of magazines to consenting adults who enjoy the constitutional right to read and possess them.
[/QUOTE]

In fact, Justice Stevens brings up the exact concern that the OP raises: how can an individual know he is breaking the law when the law is so vague?

[QUOTE=Justice Stevens]
The Court has repeatedly recognized that the Constitution “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U. S. 352, 357 (1983). These two requirements serve overlapping functions. Not only do vague statutes tend to give rise to selective and arbitrary prosecution, but selective and arbitrary prosecution often lessens the degree to which an actor is on notice that his or her conduct is illegal.
[/QUOTE]

So clearly the judicial reasoning in this area of law is fragmented, even if Miller remains good law in the sense it is still valid law. But now that the internet has changed how people access materials, the Miller Test is due for some clarification (as the Ninth Circuit has already done in US v. Kilbride, mentioned by another poster in the other thread).

Right. The legal principle of requiring specificity in the criminal law would presuppose that a law referencing “contemporary community standards” would give me a reasonable (though perhaps not perfect) chance at successfully identifying the contemporary standards of a community so that I can self-regulate my porno-publishing habits so as to on the one hand stay legal and on the other hand publish as much as I can without having to withhold legal material out of fear.

I’m tempted* to visit my local public library, walk up to the info desk, and ask, “I’m interested in getting involved in pornography publishing but don’t want to commit an Obscenity offence. Could I please have a copy of our contemporary community standards regarding prurient interest and patent offensiveness?”

*No, I’m not actually going to do that, and I’m not actually planning to publish any porn. I’m simply very curious about the law and how it is supposed to work. The problem is that I’ve really got no bleeping idea what our contemporary community standards are or how I might identify them with reasonable specificity.

Or, perhaps the lack of arrests or prosecutions is due to the fact that the contemporary community standards were more liberal in the past but have become more conservative in the past two or three months due to February’s religious revival as well as an influx of Texans seeking a cooler climate. Wait till the next election - the old guard will be swept away and we’ll get a new hardliner Republican sheriff, chief prosecutor, and mayor. Then the prosecutions will begin…

Also, how is community membership reckoned for purposes of Miller communities? Is it identical with legal domicile in a jurisdiction or can tourists, college students, and temporary workers also impart their opinions onto the community and have those opinions recognized in an Obscenity trial? Do non-US citizens with valid immigration visas count as true community members whose opinions count or are they still considered outsiders? After all, we don’t let them vote, so why should we let them set our sexual standards? It’s our country!

Is there even any list of what speech has been judges as too obscene? Because, really, with the stuff I’ve seen online, I just assumed this decision was effectively dead. The only thing I’ve understood to be under legal challenge is child pornography.

My hunch would be that yes, these people count because the definition of “community” is a social construct and not a strictly legal one, so US citizenship and/or legal domicile in the local municipality would not be required to be a member of the community. However, this causes a problem. Thought experiment, for a moment. Suppose I pick up a few hundred gay atheists from San Francisco and two dozen BDSM enthusiasts from Las Vegas, load them into buses, and drive them into a small rural community in Utah. Do the contemporary community standards then automatically change to account for the new community members? One could easily imagine a rich publisher doing some “community social engineering” with a few tour buses.

  • Ten tour buses, capacity 100 persons each, with drivers. $2,000,000
  • 1,000 seat-warming employees, politically and sexually liberal. $1,000,000
  • Fuel. $1,000
  • Community maps. $10
  • Not going to prison for an Obscenity offense. Priceless

What practical implications does all of this have anyway? I can reside in the heart of the bible belt, yet the internet gives me instant access to the most filthy, depraved content I could ever dream of - and my neighbours will never know.

Last year at the Whitney museum in NYC there was retrospective exhibit of Jeff Koons work(most famous for the balloon dog sculpture). Included in the exhibit was a selection of still shots from a film that he made with his then wife Ilona Staller, an Italian porn star. The film was never finished, but the still shots exhibited at the Whitney were full on porn. They were massive 10’x20’. About 5 different photos if I recall.

These photos were in a separate room with a single entrance and exit and a small placard about 5"x7" warning parents that the art contained in that room was explicit and cautioned allowing their children see them, with a 12 font type. Easy to miss.

I missed it and was very surprised when I entered that room, as where numerous moms with their children in tow.

I guess Manhattan’s community standards permit such displays. I would expect that downtown Kansas City, probably not so much.

It’s a three-part test, one part is:
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The fact that it’s being displayed in an established, respected museum means it’s probably not going to be taken as lacking serious artistic value.

I just want to know what Miller posted that was supposedly so obscene. :cool:

I assume you’re being facetious. Community standards are defined by what a prosecutor can get a jury to accept. It has never been anything other than that. Nothing is quantifiable, now was it ever intended to be by any court or legislature.

I think that you may be asking too much of the law. I agree with the void for vagueness doctrine, but many aspects of the law are much harsher than this.

For example, I want to be successful at obeying the drunk driving laws while at the same time drinking as much alcohol as I possibly can while remaining legal to drive.

Or, I want to speak as negatively as possible to a passing police officer without being arrested for obstructing his official duties.

I also want to raise as much hell as possible in public before being arrested for disorderly conduct.

With all of these, there is a spectrum from “almost certainly legal” to “almost certainly illegal” but somehow and someway most people who are making a good faith attempt to obey the law are able to conduct their affairs without running afoul of them. When it becomes a problem or seriously harms a constitutional right, the courts step in and attempt to further define the concepts.

I think that what saves these laws, along with obscenity laws, from the void for vagueness doctrine is that the state isn’t enacting the law for the purpose of playing a gotcha game. It is defining the prohibited conduct in the narrowest way possible under the circumstances and is not knowingly crafting broad statutes for the purpose of being able to arrest anyone at any time. Or at least it isn’t crafting a statute so poorly designed (when there is a better way to do it) that it ensnares a large amount of lawful conduct under its umbrella.