OBSCENITY PROSECUTIONS

F. CLINTON BRODEN

BRODEN & MICKELSEN

2715 GUILLOT

DALLAS, TEXAS 75204

(214) 720-9552

 

 

 

 

I.MAIN STATUTES

       A.Federal (18 U.S.C. ¤ 1461)

         ¤1461.  Mailing obscene or crime-inciting matter

 

         Everyobscene, lewd, lascivious, indecent, filthy or vile article, matter, thing,device, or substance; and--

 

         Everyarticle or thing designed, adapted, or intended for producing abortion, or forany indecent or immoral use; and

 

         Everyarticle, instrument, substance, drug, medicine, or thing which is advertised ordescribed in a manner calculated to lead another to use or apply it forproducing abortion, or for any indecent or immoral purpose; and

 

         Everywritten or printed card, letter, circular, book, pamphlet, advertisement, or noticeof any kind giving information, directly or indirectly, where, or how, or fromwhom, or by what means any of such mentioned matters, articles, or things maybe obtained or made, or where or by whom any act or operation of any kind forthe procuring or producing of abortion will be done or performed, or how or bywhat means abortion may be produced, whether sealed or unsealed; and

 

         Everypaper, writing, advertisement, or representation that any article, instrument,substance, drug, medicine, or thing may, or can, be used or applied forproducing abortion, or for any indecent or immoral purpose; and

 

         Everydescription calculated to induce or incite a person to so use or apply any sucharticle, instrument, substance, drug, medicine, or thing--

 

         Isdeclared to be nonmailable matter and shall not be conveyed in the mails ordelivered from any post office or by any letter carrier.

 

         Whoeverknowingly uses the mails for the mailing, carriage in the mails, or delivery ofanything declared by this section or section 3001(e) of title 39 to benonmailable, or knowingly causes to be delivered by mail according to thedirection thereon, or at the place at which it is directed to be delivered bythe person to whom it is addressed, or knowingly takes any such thing from themails for the purpose of circulating or disposing thereof, or of aiding in thecirculation or disposition thereof, shall be fined under this title orimprisoned not more than five years, or both, for the first such offense, andshall be fined under this title or imprisoned not more than ten years, or both,for each such offense thereafter.

 

         Theterm "indecent", as used in this section includes matter of acharacter tending to incite arson, murder, or assassination.

 

         B.Louisiana (La. R.S. 14:106)

 

¤106 Obscenity

 

   A.The crime of obscenity is the intentional:

 

   (1)Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples inany public place or place open to the public view, or in any prison or jail,with the intent of arousing sexual desire or which appeals to prurient interestor is patently offensive.

 

   (2)(a)Participation or engagement in, or management, operation, production,presentation, performance, promotion, exhibition, advertisement, sponsorship,or display of, hard core sexual conduct when the trier of fact determines thatthe average person applying contemporary community standards would find thatthe conduct, taken as a whole, appeals to the prurient interest; and the hardcore sexual conduct, as specifically defined herein, is presented in a patentlyoffensive way; and the conduct taken as a whole lacks serious literary,artistic, political, or scientific value.

 

   (b)Hard core sexual conduct is the public portrayal, for its own sake, and forensuing commercial gain of:

 

   (i)Ultimate sexual acts, normal or perverted, actual, simulated, or animated,whether between human beings, animals, or an animal and a human being; or

 

   (ii)Masturbation, excretory functions or lewd exhibition, actual, simulated, oranimated, of the genitals, pubic hair, anus, vulva, or female breast nipples;or

 

   (iii)Sadomasochistic abuse, meaning actual, simulated or animated, flagellation, ortorture by or upon a person who is nude or clad in undergarments or in acostume that reveals the pubic hair, anus, vulva, genitals, or female breastnipples, or in the condition of being fettered, bound, or otherwise physicallyrestrained, on the part of one so clothed; or

 

   (iv)Actual, simulated, or animated touching, caressing, or fondling of, or othersimilar physical contact with a pubic area, anus, female breast nipple, coveredor exposed, whether alone or between humans, animals, or a human and an animal,of the same or opposite sex, in an act of apparent sexual stimulation orgratification; or

 

   (v)Actual, simulated, or animated stimulation of a human genital organ by anydevice whether or not the device is designed, manufactured, or marketed forsuch purpose.

 

   (3)Sale, allocation, consignment, distribution, dissemination, advertisement,exhibition, or display of obscene material, or the preparation, manufacture,publication, or printing of obscene material for sale, allocation, consignment,distribution, advertisement, exhibition, or display.

 

   Obscenematerial is any tangible work or thing which the trier of fact determines (a)that the average person applying contemporary community standards would find,taken as a whole, appeals to the prurient interest, and (b) depicts or describesin a patently offensive way, hard core sexual conduct specifically defined inParagraph (2) above, and (c) the work or thing taken as a whole lacks seriousliterary, artistic, political, or scientific value.

 

   (4)Requiring as a condition to a sale, allocation, consignment, or delivery forresale of any paper, magazine, book, periodical, or publication to a purchaseror consignee that such purchaser or consignee also receive or accept anyobscene material, as defined in Paragraph (3) above, for resale, distribution,display, advertisement, or exhibition purposes; or, denying or threatening todeny a franchise to, or imposing a penalty, on or against, a person by reasonof his refusal to accept, or his return of, such obscene material.

 

   (5)Solicitation or enticement of an unmarried person under the age of seventeenyears to commit any act prohibited by Paragraphs (1), (2), or (3) above.

 

   (6)Advertisement, exhibition, or display of sexually violent material."Violent material" is any tangible work or thing which the trier offacts determines depicts actual or simulated patently offensive acts ofviolence, including but not limited to, acts depicting sadistic conduct,whippings, beatings, torture, and mutilation of the human body, as described inSub-Subparagraph (b)(iii) of Paragraph (2) of Subsection A herein.

 

   B.Lack of knowledge of age or marital status shall not constitute a defense.

 

   C.If any employee of a theatre or bookstore acting in the course or scope of hisemployment, is arrested for an offense designated in this Section, the employershall reimburse the employee for all attorney's fees and other costs of defenseof such employee. Such fees and expenses may be fixed by the court exercisingcriminal jurisdiction after contradictory hearing or by ordinary civil process.

 

   D.(1) The provisions of this Section do not apply to recognized and establishedschools, churches, museums, medical clinics, hospitals, physicians, publiclibraries, governmental agencies, quasi-governmental sponsored organizationsand persons acting in their capacity as employees or agents of suchorganizations, or a person solely employed to operate a movie projector in aduly licensed theatre.

 

   (2)For the purpose of this Paragraph, the following words and terms shall have therespective meanings defined as follows:

 

   (a)"Recognized and established schools" means schools having a full timefaculty and pupils, gathered together for instruction in a diversifiedcurriculum.

 

   (b)"Churches" means any church, affiliated with a national or regionaldenomination.

 

   (c)"Physicians" means any licensed physician or psychiatrist.

 

   (d)"Medical clinics and hospitals" means any clinic or hospital oflicensed physicians or psychiatrists used for the reception and care of thesick, wounded or infirm.

 

   E.This Section does not preempt, nor shall anything in this Section be construedto preempt, the regulation of obscenity by municipalities, parishes, andconsolidated city-parish governments; however, in order to promote uniformobscenity legislation throughout the state, the regulation of obscenity bymunicipalities, parishes, and consolidated city-parish governments shall notexceed the scope of the regulatory prohibitions contained in the provisions ofthis Section.

 

   F.(1) Except for those motion pictures, printed materials, and photographicmaterials showing actual ultimate sexual acts or simulated or animated ultimatesexual acts when there is an explicit, closeup depiction of human genitalorgans so as to give the appearance of the consummation of ultimate sexualacts, no person, firm, or corporation shall be arrested, charged, or indictedfor any violations of a provision of this Section until such time as the materialinvolved has first been the subject of an adversary hearing under theprovisions of this Section, wherein such person, firm, or corporation is made adefendant and, after such material is declared by the court to be obscene, suchperson, firm, or corporation continues to engage in the conduct prohibited bythis Section. The sole issue at the hearing shall be whether the material isobscene.

 

   (2)The hearing shall be held before the district court having jurisdiction overthe proceedings within seventy-two hours after receipt of notice by the person,firm, or corporation. The person, firm, or corporation shall be given notice ofthe hearing by registered mail or by personal service on the owner, manager, orother person having a financial interest in the material; provided, if there isno such person on the premises, then notice may be given by personal service onany employee of the person, firm, or corporation on such premises. The noticeshall state the nature of the violation, the date, place, and time of thehearing, and the right to present and cross-examine witnesses.

 

   (3)The state or any defendant may appeal from a judgment. Such appeal shall notstay the judgment. Any defendant engaging in conduct prohibited by this Sectionsubsequent to notice of the judgment, finding the material to be obscene, shallbe subject to criminal prosecution notwithstanding the appeal from thejudgment.

 

   (4)No determination by the district court pursuant to this Section shall be of anyforce and effect outside the judicial district in which made and no suchdetermination shall be res judicata in any proceeding in any other judicialdistrict. In addition, evidence of any hearing held pursuant to this Sectionshall not be competent or admissible in any criminal action for the violationof any other Section of this Title; provided, however, that in any criminalaction, charging the violation of any other Section of this Title, against anyperson, firm, or corporation that was a defendant in such hearing, involvingthe same material declared to be obscene under the provisions of this Section,then evidence of such hearing shall be competent and admissible as bearing onthe issue of scienter only.

 

   G.(1) On a first conviction, whoever commits the crime of obscenity shall befined not less than one thousand dollars nor more than two thousand fivehundred dollars, or imprisoned, with or without hard labor, for not less thansix months nor more than three years, or both.

 

   (2)(a)On a second conviction, the offender shall be imprisoned, with or without hardlabor for not less than six months nor more than three years, and in additionmay be fined not less than two thousand five hundred dollars nor more than fivethousand dollars.

 

   (b)The imprisonment provided for in Subparagraph (a), may be imposed at courtdiscretion if the court determines that the offender, due to his employment,could not avoid engagement in the offense. This Subparagraph (b) shall notapply to the manager or other person in charge of an establishment selling orexhibiting obscene material.

 

   (3)On a third or subsequent conviction, the offender shall be imprisoned with orwithout hard labor for not less than two years nor more than five years, and inaddition may be fined not less than five thousand dollars nor more than tenthousand dollars.

 

   (4)When a violation of Paragraph (1), (2), or (3) of Subsection A of this Sectionis with or in the presence of an unmarried person under the age of seventeenyears, the offender shall be fined not more than ten thousand dollars and shallbe imprisoned, with or without hard labor, for not less than two years nor morethan five years, without benefit of parole, probation, or suspension ofsentence.

 

   H.(1) When a corporation is charged with violating this Section, the corporation,the president, the vice president, the secretary, and the treasurer may all benamed as defendants. Upon conviction for a violation of this Section, acorporation shall be sentenced in accordance with Subsection G hereof. Allcorporate officers who are named as defendants shall be subject to the penaltyprovisions of this Section as set forth in Subsection G.

 

   (2)If the corporation is domiciled in this state, upon indictment or informationfiled against the corporation, a notice of arraignment shall be served upon thecorporation, or its designated agent for service of process, which then mustappear before the district court in which the prosecution is pending to pleadto the charge within fifteen days of service. If no appearance is made withinfifteen days, an attorney shall be appointed by the court to represent thedefendant corporation with respect to the charge or to show cause why thecorporation should not be enjoined from continuing in business during thependency of the criminal proceedings. Appearance for arraignment may be madethrough private counsel.

 

   (3)If the corporation is domiciled out of state and is registered to do businessin Louisiana, notice of arraignment shall be served upon the corporate agentfor service of process or the secretary of state, who shall then notify thecorporation charged by indictment or information to appear before the districtcourt in which the prosecution is pending for arraignment within sixty daysafter the notice is mailed by the secretary of state. If no appearance is madewithin sixty days the court shall appoint an attorney to represent thedefendant corporation with respect to the charge or to show cause why thecorporation should not be enjoined from continuing in business during thependency of the criminal proceedings. Appearance for arraignment may be made byprivate counsel.

 

   (4)If the corporation is domiciled out of state and is not registered to dobusiness in Louisiana, notice of arraignment of the corporation shall be servedupon the secretary of state and an employee, officer, or agent for service ofprocess of the corporation found within the parish where the violation of thisSection has allegedly occurred. Such notice shall act as a bar to thatcorporation registering to do business in Louisiana until it appears before thedistrict court in which the prosecution is pending to answer the charge.

 

II.MUST READ CASES

Mishkinv. New York, 383 U.S. 502 (1966)

Millerv. California, 413 U.S. 15 (1973)

ParisAdult Theater v. Slaton, 413 U.S. 49 (1973)

Kapalnv. California, 413 U.S. 115 (1973)

Hamlingv. United States, 418 U.S. 87 (1974)

Smithv. United States, 431 U.S. 291 (1977)

Pinkusv. United States, 436 U.S. 293 (1978)

Ashcroftv. ACLU, 535 U.S. 564 (2002)

UnitedStates v. Hill, 500 F.2d 733 (5th Cir.1974)

UnitedStates v. Womack, 509 F.2d 368 (D.C. Cir.1974)

UnitedStates v. Thevis, 490 F.2d 76 (5th Cir.1974))

UnitedStates v. Tratman, 524 F.2d 320 (8th Cir.1975)

UnitedStates v. 2,200 Paper Back Books, 565 F.2d566 (9th Cir. 1977)

RedBluff Drive-Inn v. Vance, 648 F.2d 1020(5th Cir. 1981)

UnitedStates v. Petrov, 747 F.2d 824 (2d Cir.1984)

UnitedStates v. Pryba, 900 F.2d 748 (4th Cir.1990)

UnitedStates v. Pryba, 678 F.Supp. 1224 (E.D. Va.1988)

Commonwealthv. Trainor, 374 N.E.2d 1216 (Mass. 1978)

Statev. Short, 368 So. 2d 1078 (La. 1979)

Bergv. Texas, 599 S.W2d 802 (Tex. 1980)

Kellerv. Texas, 606 S.W.2d 931 (Tex. 1980)

Knightv. Texas, 642 S.W.2d 180 (Tex. App. 1982)

Asaffv. Texas, 799 S.W.2d 329 (Tex. App. 1990)

Ohiov. Dute, 2003 Ohio App. LEXIS 2495(Oh. App. 2003)

III.MUST REVIEW

         AmericanPorn, PBS Frontline. See www.pbs.org/wgbh/pages/frontline/shows/porn/

         Cannedgovernment briefs filed in obscenity cases.

Seehttp://www.nationallawcenter.org/Plead.htm

 

IV.FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS

         Title18, United States Code, Section 1461, makes it a crime for anyone to use theUnited States mail to transmit obscene materials.

 

         Foryou to find the defendant guilty of this crime, you must be convinced that thegovernment has proved each of the following beyond a reasonable doubt:

 

         First: That the defendant knowingly used the mails for theconveyance [delivery] of certain materials, as charged;

 

         Second: That the defendant knew at the time of the mailingthat the materials were of a sexually oriented nature; and

 

         Third: That the materials were obscene.

 

         Althoughthe government must prove that the defendant generally knew the mailedmaterials were of a sexually oriented nature, the government does not have toprove that the defendant knew the materials were legally obscene.

 

         Freedomof expression has contributed much to the development and well being of ourfree society. In the exercise of the fundamental constitutional right to freeexpression which all of us enjoy, sex may be portrayed, and the subject of sexmay be discussed, freely and publicly. Material is not to be condemned merelybecause it contains passages or sequences that are descriptive of sexualactivity. However, the constitutional right to free expression does not extendto that which is obscene.

 

         Toprove a matter is "obscene," the government must satisfy a three-parttest: (1) that the work appeals predominantly to prurient interest; (2) that itdepicts or describes sexual conduct in a patently offensive way; and (3) thatthe material, taken as a whole, lacks serious literary, artistic, political, orscientific value.

 

         Anappeal to "prurient" interest is an appeal to a morbid, degrading,and unhealthy interest in sex, as distinguished from a mere candid interest insex.

 

         Thefirst test, therefore, is whether the predominant theme or purpose of thematerial, when viewed as a whole and not part by part, and when considered inrelation to the intended and probable recipients, is an appeal to the prurientinterest of an average person in the community as a whole [to the prurientinterest of members of a deviant sexual group]. In making this decision, youmust examine the main or principal thrust of the material, when assessed in itsentirety and based on its total effect, not on incidental themes or isolatedpassages or sequences.

 

         Thesecond test is whether the material depicts or describes, in a patentlyoffensive way, sexual conduct such as ultimate sexual acts, normal orperverted, actual or stimulated; masturbation; excretory functions; or lewdexhibition of the genitals.

 

         Thesefirst two tests which I have described are to be decided by you, applyingcontemporary community standards. This means that you should make the decisionin the light of contemporary standards that would be applied by the averageperson in this community, with an average and normal attitude toward--andinterest in--sex. Contemporary community standards are those accepted in thiscommunity as a whole. You must decide whether the material would appealpredominantly to prurient interests and would depict or describe sexual conductin a patently offensive way when viewed by an average person in this communityas a whole, that is, by the community at large or in general. Matter ispatently offensive by contemporary community standards if it so exceeds thegenerally accepted limits of candor in the entire community as to be clearlyoffensive. You must not judge the material by your own personal standards, ifyou believe them to be stricter than those generally held, nor should youdetermine what some groups of people may believe the community ought to acceptor refuse to accept. Rather, you must determine the attitude of the communityas a whole.  [However, theprurient-appeal requirement may also be assessed in terms of the sexualinterest of a clearly defined deviant sexual group if the material in questionwas intended to appeal to the prurient interest of that group, as distinguishedfrom the community in general.]

 

         Ifyou find that the material meets the first two tests of the obscenitydefinition, your final decision is whether the material, taken as a whole,lacks serious literary, artistic, political, or scientific value. Unlike thefirst two tests, this third test is not to be decided on contemporary communitystandards but rather on the basis of whether a reasonable person, consideringthe material as a whole, would find that the material lacks serious literary,artistic, political, or scientific value. An item may have serious value in oneor more of these areas even if it portrays sexually oriented conduct. It is foryou to say whether the material in this case has such value.

 

         Allthree of these tests must be met before the material in question can be foundto be obscene. If any one of them is not met, the material would not be obscenewithin the meaning of the law.

 

 

 

 

 

 

VI.CONSTITUTIONAL TEST FOR OBSCENITY

 

         Thecurrent test for obscenity is a three pronged test that is set forth in Millerv. California, 413 U.S. 15 (1973):

         Thefirst prong of the test of obscenity is whether the average person, applyingcontemporary community standards, would find that the material, taken as awhole, appeals to the prurient interests.

         Thesecond prong of the test is whether, applying the contemporary communitystandards, the material depicts or describes sexual conduct in a patentlyoffensive way.

         Thethird prong is whether the material, taken as a whole, lacks serious literary,artistic, political and scientific value.

         A.Sex and Obscenity are Not Synonymous

Ò[S]exand obscenity are not synonymous. Obscene material is material which deals withsex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is notitself sufficient reason to deny material the constitutional protection offreedom of speech and press. Sex, a great and mysterious motive force in humanlife, has indisputably been a subject of absorbing interest to mankind throughthe ages; it is one of the vital problems of human interest and publicconcern.Ó

 

Rothv.United States, 354 U.S. 476, 487 (1957)

 

         B.Prurient Interests

 

         Thephrase Òappeals to the prurient interestsÓ refers to the effect or impact thematerials have on the average person, that is whether the material produces ashameful or morbid sexual response in the average person.

         Thefact that one portion or scene of a work may have some appeal to the prurientinterest of the average person is not sufficient.  Rather, the dominant theme of the work-- that is, the worktaken as a whole-- must appeal to the prurient interest of the average person.

         Useof the term Òaverage personÓ means that the material is not to be judged on thebasis of individual tastes. Rather, the material is to be judged based upon the hypothetical averageadult person in the community.  Theaverage person adult does not include children.  Likewise, material is not to be judged through the eyes ofthe most tolerant or the most sensitive. See generally, Pinkus v. United States, 436 U.S. 293 (1978).

         Theprurient appeal of the material can also be based on an appeal to a deviantsexual group in order to satisfy the first prong of the Miller test.  Mishkinv. New York, 383 U.S. 502, 508-09(1966).  (See discussion infra. as to whether this would require the government toput on expert testimony.)

         C.Contemporary Community Standards

       Contemporary community standards are what isaccepted/tolerated (see discussion infra. as to accepted vs. tolerated) in the community as awhole.

         Generallyspeaking, the community standards consist of the standards from the area fromwhich the jury is chosen, however, specificity as to a precise geographic areais not required as a matter of constitutional law.  United States v. Miller 413U.S. 15, 30, 33-34 (1973), Hamling v. United States, 418 U.S. 87 (1974).  How the ÒcommunityÓ is defined varies from jurisdiction tojurisdiction.  For example, infederal court, the scope of the community is usually not defined but isconsidered to be either the judicial district or the division within thejudicial district.  In state courtin Texas, the community is considered the state as a whole, not the county inwhich the trial takes place.

         Prosecutionscan be brought in the district of transmission or receipt.  See,e.g.,  United States v. Bagnell, 679 F.2d 826 (11th Cir. 1982); United States v. Peraino, 645 F.2d 548, 551-53 (6th Cir. 1981); UnitedStates v. Thomas, 613 F.2d 787, 792 (10thCir. 1980); United States v. Cohen,583 F.2d 1030, 1041 (8th Cir. 1978). The ÒcommunityÓ in those cases is the ÒcommunityÓ where the trial takesplace.

         Forinternet obscenity cases, there is a ongoing debate as to how to define thescope of the community.  See,e.g., Ashcroft v. ACLU, 122 S.Ct. 1700(2002); John S. Zanghi, Community Standards in Cyberspace, 21 U. Dayton L. Rev. (1995).

         D.Value of Material

       The first two prongs of the Millertest is judged using Òcontemporary community standards.Ó The third prong is judgedusing a reasonable person test.  See Pope v. Illinois, 481 U.S. 497, 500-01 (1987).  In other words, would a reasonableperson, considering the material as a whole, believe that the material lacksserious literary, artistic, political or scientific value.

         E.Scienter

       It is not necessary for the government to prove thata defendant knew the material was obscene.  All the government must prove is that the material was of asexually oriented nature. Hamling v. United States, 418 U.S. 87,119-24 (1974).  Indeed, it has beenheld that Òadvice of counselÓ is not a defense to an obscenityprosecution.  See Schindler v.United States, 208 F.2d 289 (9th Cir.1953).

         Thereis a strong argument that, when a defendant is charged with a conspiracy todistribute obscene material or aiding and abetting the distribution of obscenematerial, that these require the defendant to know that the material was, infact, obscene.  This presupposesthat conspiracy and aiding and abetting are specific intent crimes.

VII.PRE-TRIAL PREPARATION

       The following is a non-exhaustive list ofsuggestions for preparing for trial and obtaining an understanding of thecommunity standards:

         1.  Watch the PBS Frontline video entitledÒAmerican Porn.Ó

 

2.  After determining the sexual acts in thematerial on trial, visit as many adult bookstores as possible in yourcommunity.

a.  Review videos available in bothheterosexual sections and homosexual section for material depicting those acts.

                           1.Some DVDs now contain the Òmaking ofÓ the production.

 

b.  Review devices available that show thatpeople engage in those

 type of acts.

 

c.  Talk to store employees about salesfigures for different types of material involving those acts.

 

d.  Take a videotape of the inside of thestore and of the material available in the store related to those acts

 

e.  Review ÒswingerÓ magazines to determinehow many people within the area are seeking partners to engage in numerousdifferent types of sexual activity.

 

3.  After determining the sexual acts inthe material on trial, visit sexology sections of mainstream bookstores such asBorders and Barnes & Nobel for books discussing those acts.

 

4.  After determining the sexual acts inthe material on trial, see what materials are available on amazon.comdiscussing those acts.

 

5.  Review mainstream movies such as theopening scene in the unedited version of Basic Instinct.  DonÕtlimit yourself to American movies (there is a horribly graphic rape scene in anacclaimed French Movie entitled Baise Moi).

 

6.  Do a search on www.alt.com which allowsyou to determine how many people within a given geographic radius are seekingpartners to engage in numerous different types of sexual activity.

 

7.  Do an internet search for the type ofmaterial at issue (e.g. Òbestiality videos,ÓÒrape videosÓ).

 

         8.  Discuss the ÒvalueÓ of the materialwith experts in the field.

 

9.  Discuss how the material in questionwas made with the actors and/or producers.

 

10.  Determine whether the sexual acts inthe material on trial appear regularly in ÒmainstreamÓ pornographic magazinessuch as Playboy or Penthouse.

 

VIII.PRE-TRIAL ISSUES

       A.Constitutional Challenges to Obscenity Laws

       Obscenity statutes have withstood various types ofconstitutional challenges. 

         TheUnited States Supreme Court held in Roth v. United States that the First Amendment to the United StatesConstitution does not protect obscene material.

         TheSupreme Court, in Smith v. United States,431 U.S. 29, 3091 (1977), rejected an argument that the federal obscenitystatute was unconstitutionally vague (Ò[T]he type of conduct covered by thestatute can be ascertained with sufficient ease to avoid due processpitfalls.Ó).

         Likewise,in Smith v. United States, 431 U.S. 291(1977), the Supreme Court rejected a challenge to the federal obscenity statuteas violating the due process clause of the Constitution based upon the argumentthat different juries could view the same material and render differentverdicts.

         Although there is a right to privacy to possessobscenity (see Stanley v. Georgia,394 U.S. 557 (1969)), the fact that material is  only distributed by and to consenting adults does notprotect the distribution of the material under the constitutional right toprivacy.  See Paris AdultTheatre I v. Slaton, 413 U.S. 49, 53 (1973)(ÒWe categorically disapprove the theory apparently adopted by the trial judge,that obscene pornography films acquire constitutional immunity from stateregulation simply because they are exhibited for consenting adults only).[1]

         B.Selective Prosecution

       Because pornography is a multi-billion dollarindustry sponsored by many top corporations (e.g. hotelcorporations, cable corporations), it is more than likely that a person chargedwith obscenity will believe that he is being selectively prosecuted.  Unfortunately, in order to make out aselective prosecutions claim, one must prove that the prosecution is based uponan impermissible motive, such as invidious discrimination or the violation of aconstitutional right- a virtually impossible task.  See UnitedStates v. Armstrong, 116 S.Ct 1480 (1996).

IX.TRIAL ISSUES

       A. VoirDire

       Allowed to conduct a proper voir dire, you willdiscover, inter alia, 1) who on the venire panel has neverwatched an adult movie; 2) who on the venire panel believes that networktelevision is too smutty; 3) who on the venire panel has lived such a shelteredlife that they have no appreciation whatsoever as to that type of sexualmaterial that is available in the community; 4) who on the venire panel hassuch strong religious beliefs against sexual material that they could notfollow the law; 5) who on the venire panel could not put their personalstandards aside and apply the community standards; 6) who on the venire panelhas been sexually abused; 7) who on the venire panel could not watch thematerial in question and be fair to the defendant.

         Ifyour voir dire time is limited, you should engage the venire panel in a candid discussion of the material thatjurors will be required to review in an effort to exclude for cause those whocould not follow the law, by applying their own personal standards rather thanthe community standards, after reviewing such graphic material.

                  1.Stock government motion

         Thegovernment will typically file a Motion In Limine seeking to limit voir direquestions solely to jurorsÕ memberships in organizations either in favor oragainst pornography laws.  It willattempt to preclude voir dire onthe following:

(l)Any questions, or remarks in the presence of the jury panel, regarding theirunderstanding of the First Amendment;

 

(2)Any questions relating to the First Amendment and its protections generally;

 

(3)Any question regarding what "consenting adults" should be allowed toread or view;

 

(4)Any questions regarding an explicit description of the contents of the materialalleged to be obscene in this case, and a related question regarding whetherthey will be too offended by these films and magazines to serve as a juror andbe fair;

 

(5)Any question to the jury regarding their definition or understanding of"community standards", or whether they think people"tolerate" the sale of "sexually explicit" materials;

 

(6)Any question regarding their understanding, definition, or knowledge of"prurient interest";

 

(7)Any question regarding whether the jurors themselves have a"prurient" (i.e., shameful, morbid, unhealthy, abnormal, etc.)interest in sex;

 

(8)Any question giving an impression that films or magazines cannot be"prurient" unless they are sexually arousing to the jurorsthemselves;

 

(9)Any question discussing or defining the "prurient interest" conceptgenerally;

 

(10)Any question regarding their understanding, definition, or knowledge of the"average person" or "reasonable person";

 

(11)Any question regarding their personal sexual preferences and ideas, or whatthey (or others) may do in the privacy of their homes;

 

(12)Any question designed, or having a tendency, to embarrass or intimidate thejury panel or member thereof;

 

(13)Any question exploring the religious beliefs of prospective jurors, and howsuch beliefs might affect their verdict, other than religious preference ormembership generally and frequency of attendance;

 

(14)Any hypothetical or similar question calling for a prejudgment of the evidence;

 

(15)Any technical legal question relating to the law to be applied in this case;

 

(16)Any question regarding their knowledge of businesses in the community which maydistribute "sexually explicit" materials, or the availability of suchmaterials generally.

 

SeeStock government Motion In Limine at

http://www.nationallawcenter.org/copy_of_nlc/oblimini.htm

 

         Thegovernment will argue that its position is supported by Smith v. UnitedStates, 431 U.S. 291, 308 where the Courtupheld a trial courtÕs refusal to allow voir dire on Òprospective jurors...understanding of IowaÕscommunity standards and Iowa law.Ó The government will try to convince a courtthat the Supreme Court held such questions to be per se improper. In fact, what the Court concluded in Smith is that Ò[t]he propriety of aparticular question is a decision for the trial court to make in the firstinstance.  In this case, however,we cannot say that the District Court abused its discretion in refusing to ask thespecific questions tendered by petitioner.Ó

                  2.Response

         Thefollowing consists of a portion of the response to the governmentÕs stockMotion In Limine:

         Thegovernment also seeks to prohibit questions regarding whether jurors could befair given the nature of the case and the nature of the evidence.  The government argues that Ò[s]uchquestion[s] [are] misleading because [they] focus [] the jurors on theirreaction to what the evidence may be, instead of properly instructing them toplace their own feeling and apply the Ôaverage personÕ and ÔcontemporarystandardsÕ concepts.Ó  Thegovernment, here,  misses thepoint.  If a juror could not,because of his or her reactions to the type of case and/or the evidenceexpected in the case, correctly apply the law, that juror, then, must be struckfor cause.  Indeed, would thegovernment argue that a juror could not be asked if he or she could be fair ina case that involved a minority defendant even though the jury would be told itmust follow the law and treat such a defendant equally under the law?  The simple matter is that, because ofthe graphic nature of the material in question, some jurors may feel theycannot fairly apply the law.  Forexample, a juror may state that he or she understands that the communitystandards allow for nudity in movies. The same juror might, however, also state that he or she would be sooffended by being required to watch a video containing nudity that he or shewould convict the defendants, regardless of the community standards.  That juror, then, is subject to bechallenged for cause.

        

         Similarly,the government also seeks to prohibit asking jurors whether their education,political and religious beliefs and affiliations would affect their views onthe question of obscenity.  Again, the government misses the point because of the way it phrases thehypothetical question.  Clearly,jurors should be asked whether their beliefs and affiliations would allow themto correctly apply the law in an obscenity case.  Indeed, this is no different than the type of question thatthe government normally requests the Court ask during voir dire inquiring whether a personÕs beliefs or affiliationsprohibit a person from sitting in judgment of another person (i.e. incorrectly applying the law).

        

         Insum, the defense agrees that the law will require jurors in this case to applythe Òcommunity standardsÓ rather than their own.  Nevertheless, based upon a particular jurorÕs backgroundand/or life experiences, he or she may not be able to apply this law and maychoose to apply his or her own views regarding pornography.  All parties have an interest indetermining whether jurors can, in fact, apply the law or whether they must bestruck for cause.  In addition,assuming that a juror could put his or her personal standards aside, allparties in this case also have an interest in determining whether jurors, basedupon their background and/or life experiences, would be capable of measuringthe community standards of the average person in the community rather thanapplying the standards of members of the community that are highly prudish orthat are overly sexual.  Only byprobing jurors regarding their backgrounds and/or life experiences will theparties be insured that the twelve jurors selected are capable of applying thecommunity standards of the average person and, thereby, capable of correctlyapplying the law.

 

B.Comparables

       It will be your job to educate the jurors as to theÒcommunity standardsÓ (i.e. what is available in thecommunity).  One way to do this isthe use of comparable materials more graphic than the materials at issue intrial that are available in both adult and mainstream outlets (remember BasicInstinct). The government will fight you atevery turn.  As part of its cannedMotion In Limine, it will arguethat Òfederal and state courts rarely admit such comparison evidence whenoffered by the defendant, and only if a rigorous foundation for itsadmissibility is satisfied.Ó 

         ThegovernmentÕs argument is absolutely misplaced unless what it means to say isthat, in cases in which it has secured a conviction (perhaps becausecomparables were excluded), appellate courts appear to have given trial courtsa great deal of latitude in area of comparables. 

         Inpoint of fact, comparables are very important to gauging community standards.  See, e.g., United States v. VariousArticles of Obscene Merchandise, Schedule 2102, 709 F.2d 132 (2d Cir. 1983) (Judge, sitting as the trier of fact, basedhis decision that materials in question were not obscene on comparablematerials).  Texas state courts, infact, recognize that the community standards in Texas are best comprehended byjurors who have access to Òcomparables.Ó See, e.g., Berg v. State,599 S.W.2d 802 (Tex. 1980).  Arecent Ohio opinion held that it was reversible error not to allow a defendantto put on comparable material involved in an earlier prosecution in which adifferent defendant was acquitted. See Ohio v. Dute, 2003Ohio App. LEXIS 2495 (Oh. App.2003) (ÒThe defendant in an obscenity case must be allowed to introduce competent,relevant evidence bearing on the issues to be tried.  It is error for a trial court in an obscenity case to denyor unreasonably curtail a defendant's right to introduce into evidencecompetent and non-repetitive testimony or exhibits that directly relate to orbear upon the absence of any or all of the elements of the Miller obscenity test.  The Metcalfvideotapes, having been found by a Hamilton County jury not to be obscene,arguably demonstrated contemporary community standards. A trial court may notunreasonably curtail the right of the defendant in an obscenity case tointroduce competent, non-cumulative evidence bearing upon the Miller test elements, including evidence of communitystandards.Ó).

         Thereare two very important cases to read in relation to the introduction ofcomparables.  The first is Hamlingv. United States, 418 U.S. 87, 125-27(1974) where the trial courtÕs allowance of some comparables and disallowanceof others is discussed at length. Nevertheless, the ultimate holding in Hamling is simply that the trial court has a great amount ofdiscretion in this regard.  Thesecond is Womack v. United States,294 F.2d 204 (D.C. Cir. 1961) which most courts rely upon to determine thefoundation requirements for comparables:

Thepredicate for a conclusion that a disputed piece of mailed matter is acceptableunder contemporary community standards, as shown by proffered other matteralready in unquestioned circulation, must be that the two types of matter aresimilar. And as another part of his foundation he must show a reasonable degreeof community acceptance of works like his own.

 

Id. at 206. It is not at all clear when comparablematerial goes from being ÒavailableÓ to being ÒacceptedÓ and that is the fightyou will face.  That is why havingstatistics related to how often comparable material is purchased and/or rentedcould be essential.

         Inshort, you will have to fight to educate the jury.  During voir dire you will hear the common refrain fromvenire panel members: ÒHow am I suppose to know the community standards, all Iknow is my own standards?Ó Hopefully that will resonate with the judge and,even in the face of the governmentÕs obstreperousness, the judge will allow youto educate the jury as to community standards through the use of comparables.

         C.Expert Witnesses

       You can also use expert witnesses to educate thejury regarding what goes on in the community.  Many times you will want to use a psychiatrist, counselor orsexologist to educate the jury regarding human sexual behavior.  A pollster may conduct public opinionstudies regarding the material in question.[2]  There may be times where an expert isnecessary to show the redeeming value of the material (such as a professor ofliterature or political science). An expert on the internet might be helpful if you intend to show theavailability of similar material over the internet (this expert would have tobe able to come up with a statistical model of how many distincthits one gets for a particular search and how many people in a particulargeographical region go to the particular sites).  The list is endless.

         Aswith comparables, the government will oppose any attempt to help educate thejury.  They will argue that theSupreme Court held in Paris Adult Theatre v. Slaton, 413 U.S. 493, 56 (1973) that the government is notrequired to introduce expert testimony, but, of course, that is entirely besidethe point.  In Kaplan v.California, 413 U.S. 115, 121 (1973), theSupreme Court made clear that, in fact, the Òdefense should be free tointroduce appropriate expert testimonyÓ in obscenity cases.  See also, United States v. Bagnell, 679 F.2d 826, 833 (11th Cir. 1982) (ÒWhile experttestimony in obscenity cases is not required, it clearly ispermissible.Ó).  Of course, likeany expert testimony, you must meet the standards of Daubert and Kuhmo Tire Co.[3]

         One issue to keep in mind is that the Supreme Courthas left open the question of whether, where the material is alleged to appealto a deviant