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Pope v. Illinois
Citations: 95 L. Ed. 2d 439; 107 S. Ct. 1918; 481 U.S. 497; 1987 U.S. LEXIS 1934; 14 Media L. Rep. (BNA) 1001; 55 U.S.L.W. 4595Docket: 85-1973
Court: Supreme Court of the United States; May 4, 1987; Federal Supreme Court; Federal Appellate Court
The Supreme Court case Richard Pope and Charles G. Morrison v. Illinois addresses the application of community standards in determining whether material is obscene under the Miller test. The third prong of this test requires the trier of fact to assess if a work, as a whole, lacks serious literary, artistic, political, or scientific value. Petitioners, attendants at adult bookstores, were charged with obscenity after selling magazines to police, and trial courts instructed juries to evaluate the magazines' value based on community standards specific to Illinois. The State Appellate Court affirmed their convictions, rejecting the petitioners' argument that the value determination should be objective rather than community-based. The Supreme Court held that juries should not apply community standards when evaluating the value question; only the first two prongs of the Miller test—appeal to prurient interest and patent offensiveness—should reference community standards. The Court emphasized that a work's value should not hinge on local acceptance but rather be assessed by a reasonable person's perspective. This instruction was found to violate the First and Fourteenth Amendments. The Court did not decide whether the convictions should be reversed or upheld as harmless error, as the State Appellate Court had not addressed this issue. However, under the precedent set in Rose v. Clark, a conviction can be affirmed if the evidence presented at trial supports guilt beyond a reasonable doubt, provided the trial was not fundamentally unfair. The Court concluded that if the appellate court determines that no rational juror could find value in the magazines, the convictions could stand despite the erroneous instructions. The decision was vacated and remanded for further proceedings. On July 21, 1983, police detectives in Rockford, Illinois, purchased magazines from two attendants at an adult bookstore, leading to separate obscenity charges against each petitioner. They moved to dismiss the charges, claiming the Illinois obscenity statute violated the First and Fourteenth Amendments by not requiring an objective assessment of the magazines' value, as it referenced contemporary community standards. Both trial courts denied their motions, instructing juries to evaluate the materials based on the perspective of ordinary adults in Illinois, resulting in guilty verdicts for both petitioners. Appeals to the Illinois Appellate Court also failed, as it upheld the use of community standards for determining value. The Illinois Supreme Court denied review, but certiorari was granted by the U.S. Supreme Court. The U.S. Supreme Court noted that previous rulings indicate that the value of allegedly obscene works should not be assessed by community standards, citing Smith v. United States, which differentiated between prurient appeal and the literary, artistic, political, or scientific value of a work. The Court emphasized that the First Amendment protects works of serious value regardless of public approval or community acceptance. Thus, the instruction given to juries was deemed unconstitutional. The Court also addressed whether to reverse the convictions outright or consider them salvageable if the error was harmless, asserting that since the statute used for the convictions has since been repealed and replaced, the convictions should not stand under a law that threatens First Amendment rights. Facial invalidation of a repealed statute does not prevent future prosecutions under a constitutionally flawed standard. Even if the statute were invalidated and prior convictions reversed, defendants could still be retried if proper jury instructions were followed, as they cannot argue that the statute did not provide notice regarding the prosecution of obscene material sales. The case is similar to Rose v. Clark, where a murder trial's incorrect jury instruction on malice warranted a harmless-error analysis. In Rose, the court affirmed the conviction because the trial was not fundamentally unfair, and the jury was still able to consider malice despite the error. In the current case, jurors could assess the value of the magazines sold by petitioners, even with incorrect instructions to apply a community standard. If a reviewing court determines that no rational juror, if properly instructed, could find value in the magazines, the convictions should remain intact. The court emphasizes its authority to assess harmless constitutional errors but does so cautiously. The Illinois Appellate Court has not addressed the harmless-error issue, prompting the court to vacate its judgment and remand for further consideration. Justice Scalia concurs, finding it unlikely that a community standard encompassing the entire state would lead to conviction where a "reasonable person" standard would not. He supports an objective test of value in line with Miller v. California but expresses skepticism about the feasibility of objectively assessing literary or artistic value. Ratiocination is deemed irrelevant to aesthetics, rendering the concept of a "reasonable man" ineffective in assessing artistic value; instead, a "man of tolerably good taste" is proposed, highlighting the absence of a clear standard. The idea of litigating taste is criticized, as courts determining "What is Beauty" is considered a novel and problematic approach. Justice Stevens' dissent is noted to exacerbate these issues by complicating the evaluation of literary or artistic merit. A consensus among justices emphasizes that the First Amendment protects works regardless of majority opinions, asserting that even minority views on artistic value are valid. The dissenting opinions collectively argue against the criminalization of "obscene" materials for consenting adults, reinforcing the notion that diverse perceptions of artistic merit should not lead to censorship. The author expresses concern that regulations on sexually oriented material for consenting adults face inherent issues due to the inability to clearly define "obscenity," which risks infringing on protected speech and causing institutional harm. The author agrees with most of Justice Stevens' dissent while diverging on footnote 11. The Court acknowledges that juries in the obscenity convictions received incorrect instructions regarding a key element of the crime. The author outlines three reasons for disagreement with the case's outcome: (1) the instructional error was not harmless, (2) the Court's definition of obscenity does not align with First Amendment principles, and (3) Illinois should not criminalize the sale of magazines to consenting adults who have the right to read and possess them. The distribution of magazines is typically protected under the First Amendment, but if a prosecutor meets the obscenity criteria established in Miller v. California, prohibition is possible. For a conviction, juries must find that the material lacks serious literary, artistic, political, or scientific value beyond a reasonable doubt. However, the juries were instead instructed to assess whether the magazines were viewed as valuable by "ordinary adults in the whole State of Illinois," which does not satisfy the required legal standard. This instructional failure meant the juries could not properly assess one essential element of the crime, constituting a significant error that cannot be deemed harmless. The author emphasizes that a conviction cannot stand if the jury hasn’t received proper instructions to find each element of the offense, reinforcing the necessity of a jury trial for all critical elements of a charge. An application of the harmless-error doctrine in this context would infringe on petitioners' constitutional right to a jury trial and distort the concept of harmless error. Such analysis is only applicable if the jury has found all elements necessary for a conviction. While the doctrine can cleanse proceedings of taint to uphold jury findings, it cannot constitutionally augment those findings. Courts cannot presume what a jury would have found if it did not find it, a notion consistently rejected in prior cases. The excerpt references several landmark cases, asserting that they remain authoritative despite claims to the contrary following Rose v. Clark. In Rose, the Court ruled that harmless-error analysis could apply to jury instructions that improperly allowed a presumption regarding an element of a crime, but the dissent emphasizes that the circumstances in this case differ significantly. The error in instructions here pertains to essential elements that juries must find, which cannot be deemed superfluous. The excerpt critiques the Court's new obscenity standard, arguing that it incorrectly assumes consensus among reasonable persons regarding the value of the material in question. Specific sexually oriented materials may hold significant artistic, political, literary, or scientific value for some reasonable individuals, while others may disagree. The Court's guidance does not dictate how juries should resolve such disparities. According to the First Amendment, materials should be protected if any reasonable person perceives them as possessing serious value. Historical precedent emphasizes the diversity of tastes and ideas, asserting that obscenity laws should not reduce available literature to the lowest common denominator. Notably, works like "Ulysses" or "Lady Chatterley's Lover" may not appeal to the majority, which raises concerns about the definition of a "reasonable person" in obscenity cases, as majority opinion may not equate to reasonableness. The author argues that the government's ability to criminalize possession or sale of obscene literature should hinge on its connection to minors or non-consenting adults. The inherent difficulties in applying a "reasonable person" standard call into question the constitutionality of such prosecutions. Furthermore, juror perceptions of community standards regarding obscenity are inherently subjective and inconsistent, influenced by group dynamics, leading to potentially arbitrary outcomes in trials. Consequently, the determination of guilt or innocence in obscenity cases often relies on individual jurors' subjective feelings rather than consistent application of legal standards. Justice Harlan's observation highlights the subjective nature of vulgarity and artistic expression, emphasizing that the Constitution allows individuals to determine their own tastes due to the inability of government officials or jurors to make clear distinctions in this realm. The blurred line between offensive and non-offensive communications complicates the identification of criminal conduct and the scope of First Amendment protections. The Constitution mandates that penal statutes be clearly defined to avoid arbitrary enforcement and to ensure that individuals understand what conduct is illegal. The case involving petitioners Pope and Morrison illustrates this principle; they were employed at bookstores with explicit signage indicating the sale of adult materials. Although the Illinois Appellate Court found that Pope had knowledge of the magazines' nature, this does not equate to understanding their legal status as "obscene" under Illinois law. The public visibility of the stores led to a reasonable assumption that their operations were lawful. Furthermore, a lack of clarity in the law undermines the principle that ignorance is no excuse, as citizens cannot be expected to decipher vague statutes. The Constitution does not permit the criminalization of speech that cannot be clearly defined by legislation. Additionally, the Supreme Court's ruling in Stanley v. Georgia establishes that the government cannot criminalize the mere possession of obscene materials, reinforcing the notion that governmental control over individual thoughts and expressions is fundamentally objectionable. Georgia's law aimed to shield individuals from obscenity is inconsistent with First Amendment principles, which protect the freedom of thought. The Court has interpreted the Stanley decision narrowly, claiming it does not affect laws against obscenity sales. This narrow interpretation undermines First Amendment values and disrespects citizens' rights to access materials, even if deemed obscene. While the state can regulate obscenity to protect children and unwilling viewers, a blanket prohibition on the sale of such materials is excessive, particularly when less restrictive means exist for addressing concerns about minors. The dissent emphasizes that demand for such materials indicates they serve a purpose, whether for amusement or information. Historical arguments against certain materials echo those once made regarding now-cherished art. The dissent advocates for trusting the marketplace of ideas to discern valuable content from objectionable material. Additionally, the statute under which petitioners were charged incorporated a stringent test from Memoirs v. Massachusetts, requiring material to be "utterly without redeeming social value" to be deemed obscene. Despite Miller v. California's ruling that this standard is not constitutionally required, Illinois maintained it during the prosecutions. The obscenity determination was to be made based on a statewide standard rather than local norms. The dissent notes that a minority's belief in a work's value does not negate meeting the "reasonable person" standard, and the state argues that juries require guidance on applying contemporary community standards to assess value. In obscenity prosecutions, the trial court has the discretion to instruct juries to evaluate whether a reasonable person would find serious literary, artistic, political, or scientific value in the work in question. Such an instruction is comparable to "reasonable man" standards used in tort cases and is unlikely to confuse jurors. However, using a "community standards" instruction may mislead jurors into adhering strictly to local views, neglecting the reasonable person's perspective. The new statute defines obscenity based on whether the average person, applying adult community standards, finds that a work appeals to prurient interests, depicts offensive sexual acts, and lacks serious value. In a related case, Rose, the jury was instructed that all homicides are presumed malicious unless proven otherwise, which improperly shifted the burden of proof, violating established precedents. The court clarified that it does not assume the jury disregarded this faulty instruction but rather that the evidence was such that the verdict would remain unchanged even without the improper guidance. Both cases illustrate concerns regarding jury instructions potentially influencing their decision-making, either through erroneous presumptions or reliance on unreasonable community standards. After the Rose decision, previous cases suggesting that faulty instructions always invalidate convictions are no longer applicable. The First Amendment safeguards works with significant literary, artistic, political, or scientific value, irrespective of public or governmental approval. The author expresses disagreement with the Court's obscenity standard and argues against the constitutionality of criminal prosecutions in related cases, although these disagreements are deemed irrelevant for the harmless-error analysis. Citing various legal precedents, the text emphasizes the constitutional right to a fair trial rather than a perfect one. Moreover, while the Court has dismissed the community values test, the author argues that jurors would still be influenced by these values unless they find a community member to be unreasonable. This perspective contradicts the Court's stance that the value of works should not fluctuate based on local acceptance. Issues arise particularly when expert opinions highlight the value of material to specific groups, leading to potential discrepancies between expert and general public perceptions. The text concludes that none of the proposed definitions can adequately reduce vagueness while balancing First and Fourteenth Amendment protections against the state's interest in regulating sexually oriented materials. Roth v. United States and several other Supreme Court cases illustrate dissenting opinions regarding First Amendment protections related to obscenity laws. Dissenting Justices expressed concern that the Court's approach inadequately safeguards First Amendment values. The Attorney General's Commission on Pornography noted scholarly criticism of the Supreme Court's handling of obscenity issues. The Oregon Supreme Court affirmed the right to distribute material considered obscene to consenting adults under its State Constitution. Additionally, at least five states lack adult obscenity statutes while regulating materials harmful to minors. The text emphasizes judicial intolerance of vague statutes in the First Amendment context, citing various cases that reinforce this principle. The state argued that the adult-only access to certain stores implied awareness of the materials' obscene nature. It was noted that signage indicating the adult nature of entertainment serves both to attract certain patrons and to warn others, suggesting that truthful descriptions should be encouraged rather than penalized, as articulated in dissenting opinions. The statements regarding the films' provocative nature do not inherently classify them as obscene. Insufficient clarity in criminalization does not apply to civil regulation of sexually explicit material, where states have significant discretion. Legal precedents indicate that standards of certainty in criminal statutes are more rigorous than those in civil regulations. States may regulate the sale and exhibition of non-obscene material as long as they do not restrict market access or the public's consumption of sexually explicit content. The state’s authority extends to prohibiting the sale or exhibition of sexually explicit materials to minors, allowing for broader definitions beyond obscenity. Overall, while individuals have the right to receive information regardless of its obscenity, states can constitutionally regulate the provision of such information to consenting adults.