Obscenity Flashcards
People v. Muller
Obscene photos
a. Holding: Expert testimony would replace jury’s judgement
i. Jury perfectly capable of deciding
Jacobellis v. Ohio
Obscene film
a. Experts help jury understand their own community standard
b. “I know it when I see it”
Miller v. California
Obscene porn brochure
a. Established obscenity test
i. Average person, applying community standards
ii. Depicts sexual conduct described by state law
iii. Work lacks literary, artistic, political, scientific value
b. Established “state specific” standard
i. No national standard under First Amendment
VA Code
a. “The word ‘obscene’ [s]hall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the
prurient interest in sex”
b. Exception for schools, museums, etc.
Paris Adult Theater I v. Slaton
a. Obscene material has no protection under the First Amendment
b. Prosecution doesn’t need expert testimony; films are best evidence of what they represent
SCOTUS: legitimate state interest in legislating obscenity despite lack of scientific data
Kaplan v. CA
a. Defense can feel free to introduce expert testimony
b. But prosecution doesn’t have to establish a national standard (community standard)
Current view (circuit split) based on Ashcroft
a. 11th circuit- no national standard (SCOTUS dicta)
b. 9th circuit- national community standard for internet
People v. Nelson
a. Reversed lower court
b. Allowed use of survey to establish community standard
Commonwealth v. Trainor
a. Survey not admissible
b. Didn’t address specific case material
US v. Pryba
a. Ethnography survey bogus
b. Only interviewed people who frequented adult film stores
Estimating Community Standards (Linz study)
a. Showed people less judgmental after viewing adult material
b. Issue with study: making people show up to location and watch adult film causes a group to be self-selective (drop off from 614 interviewed to 380 willing to see a film to 284 will to see X-rated to 129 who showed up and watched movie
