Petitioner was convicted of mailing obscene materials and
advertising brochures for such materials in violation of 18 U.S.C.
§ 1461 (1976 ed.), and the Court of Appeals affirmed. Since the
materials were mailed prior to 1973, he was tried under the
standards of
Roth v. United States, 354 U.
S. 476, and
Memoirs v. Massachusetts,
383 U. S. 413,
rather than under those of
Miller v. California,
413 U. S. 15. He
claims that the trial court's instructions to the jury were
improper because they included children and sensitive persons
within the definition of the community by whose standards obscenity
was to be judged; charged that members of deviant sexual groups
could be considered in determining whether the materials appealed
to prurient interest in sex; and also charged that pandering could
be considered in determining whether the materials were
obscene.
Held:
1. Children are not to be included as part of the "community" as
that term relates to the "obscene materials" proscribed by § 1461,
and hence it was error to instruct the jury that children are part
of the relevant community. A jury conscientiously striving to
define such community, the "average person," by whose standards
obscenity is to be judged, might very well reach a much lower
"average" when children are part of the equation than it would if
it restricted its consideration to the effect of allegedly obscene
materials on adults. Pp.
436 U. S.
296-298.
2. However, inclusion of "sensitive persons" in the charge
advising the jury of whom the community consists was not error. In
the context of this case, the community includes all adults who
compose it, and a jury can consider them all in determining the
relevant community standards, the vice being in focusing upon the
most susceptible or sensitive members, rather than in merely
including them, as the trial court did, along with all others in
the community. Pp.
436 U. S.
298-301.
3. Nor was the instruction as to deviant groups improper.
Nothing prevents a court from giving an instruction on prurient
appeal to such groups as part of an instruction pertaining to
appeal to the average person when the evidence, as here, would
support such a charge. Pp.
436 U. S. 301-303.
Page 436 U. S. 294
4. The pandering instruction, which permitted the jury to
consider the touting descriptions in the advertising brochures,
along with the materials themselves, to determine whether the
materials were intended to appeal to the recipient's prurient
interest in sex,
i.e., whether they were "commercial
exploitation of erotica solely for the sake of their prurient
appeal,"
Ginzburg v. United States, 383 U.
S. 463,
383 U. S. 466,
was proper in light of the evidence. To aid a jury in determining
whether materials are obscene, the methods of their creation,
promotion, or dissemination are relevant. Pp.
436 U. S.
303-304.
551 F.2d 1155, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. STEVENS, J.,
filed a concurring opinion,
post, p.
436 U. S. 305.
BRENNAN, J., filed a separate opinion, in which STEWART and
MARSHALL, JJ., joined,
post, p.
436 U. S. 305.
POWELL, J., filed a dissenting opinion,
post, p.
436 U. S.
306.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to decide whether the court's
instructions in a trial for mailing obscene materials prior to
1973, and therefore tried under the
Roth-Memoirs
standards, could properly include children and sensitive persons
within the definition of the community by whose standards obscenity
is to be judged. We are also asked to determine whether the
evidence supported a charge that members of deviant sexual groups
may be considered in determining whether the materials appealed to
prurient interest in sex; whether a charge of pandering was proper
in light of the evidence; and whether comparison evidence proffered
by petitioner should have been admitted on the issue of
contemporary community standards.
Page 436 U. S. 295
Petitioner was convicted after a jury trial in United States
District Court on 11 counts, charging that he had mailed obscene
materials and advertising brochures for obscene materials in
violation of 18 U.S.C. § 1461 (1976 ed.). [
Footnote 1] On appeal, his conviction was reversed on
the grounds that the instructions to the jury defining obscenity
had been cast under the standards established in
Miller v.
California, 413 U. S. 15
(1973), although the offenses charged occurred in 1971, when the
standards announced in
Roth v. United States, 354 U.
S. 476 (1957), and particularized in
Memoirs v.
Massachusetts, 383 U. S. 413
(1966), were applicable. Accordingly, the case was remanded to the
District Court for a new trial under the standards controlling in
1971. No. 73-2900 (CA9 Feb. 5, 1975,
rehearing denied May
13, 1975);
see Marks v. United States, 430 U.
S. 188 (1977).
On retrial in 1976, petitioner was again convicted on the same
11 counts. He was sentenced to terms of four years' imprisonment on
each count, the terms to be served concurrently, and fined $500 on
each count, for a total fine of $5,500. The Court of Appeals
affirmed. 551 F.2d 1155 (CA9 1977).
I
The evidence presented by the Government in its case in chief
consisted of materials mailed by the petitioner, accompanied by a
stipulation of facts which, among other things, recited that
petitioner, knowing the contents of the mailings, [
Footnote 2] had "voluntarily and
intentionally" used the mails on 11 occasions to deliver brochures
illustrating sex books, magazines,
Page 436 U. S. 296
and films, and to deliver a sex magazine (one count) and a sex
film (one count), with the intention that these were for the
personal use of the recipients. From the stipulation and the
record, it appears undisputed that the recipients were adults who
resided both within and without the State of California. Because of
the basis of our disposition of this case, it is unnecessary for us
to review the contents of the exhibits in detail.
The defense consisted of expert testimony and surveys offered to
demonstrate that the materials did not appeal to prurient interest,
were not in conflict with community standards, and had redeeming
social value. Two films were proffered by the defense for the
stated purpose of demonstrating that comparable material had
received wide box office acceptance, thus demonstrating that the
materials covered by the indictment were not obscene and complied
with community standards.
As a rebuttal witness, the Government presented an expert who
testified as to what some of the exhibits depicted and that, in his
opinion, they appealed to the prurient interest of the average
person and to that of members of particular deviant groups.
II
In this Court, as in the Court of Appeals, petitioner challenges
four parts of the jury instructions and the trial court's rejection
of the comparison films.
A.
Instruction as to Children
Petitioner challenges that part of the jury instruction which
read:
"In determining community standards, you are to consider the
community as a whole, young and old, educated and uneducated, the
religious and the irreligious, men, women and
children,
from all walks of life."
(Emphasis added.)
Page 436 U. S. 297
The Court of Appeals concluded that the inclusion of children
was "unnecessary," and that it would "prefer that children be
excluded from the court's [jury] instruction until the Supreme
Court clearly indicates that inclusion is proper." 551 .2d at 1158.
It correctly noted that this Court had been ambivalent on this
point, having sustained the conviction in
Roth, supra,
where the instruction included children, and having intimated later
in
Ginzburg v. United States, 383 U.
S. 463,
383 U. S. 465
n. 3 (1966), that it did not necessarily approve the inclusion of
"children" as part of the community instruction. [
Footnote 3]
Reviewing the charge as a whole under the traditional standard
of review, cogent arguments can be made that the inclusion of
children was harmless error,
see Hamling v. United States,
418 U. S. 87,
418 U. S. 107
(1974); however, the courts, the bar, and the public are entitled
to greater clarity than is offered by the ambiguous comment in
Ginzburg on this score. Since this is a federal
prosecution under an Act of Congress, we elect to take this
occasion to make clear that children are not to be included for
these purposes as part of the "community" as that term relates to
the "obscene materials" proscribed by 18 U.S.C. § 1461 (1976 ed.).
Cf. Cupp v. Naughten, 414 U. S. 141,
414 U. S. 146
(1973).
Earlier in the same Term in which
Roth was decided, the
Court had reversed a conviction under a state statute which
Page 436 U. S. 298
made criminal the dissemination of a book "found to have a
potentially deleterious influence on youth."
Butler v.
Michigan, 352 U. S. 380,
352 U. S. 383
(1957). The statute was invalidated because its "incidence . . . is
to reduce the adult population . . . to reading only what is fit
for children."
Ibid. The instruction given here, when read
as a whole, did not have an effect so drastic as the
Butler statute. But it may well be that a jury
conscientiously striving to define the relevant community of
persons, the "average person,"
Smith v. United States,
431 U. S. 291,
431 U. S. 304
(1977), by whose standards obscenity is to be judged, would reach a
much lower "average" when children are part of the equation than it
would if it restricted its consideration to the effect of allegedly
obscene materials on adults.
Cf. Ginsberg v. New York,
390 U. S. 629
(1968). There was no evidence that children were the intended
recipients of the materials at issue here, or that petitioner had
reason to know children were likely to receive the materials.
Indeed, an affirmative representation was made that children were
not involved in this case. [
Footnote 4] We therefore conclude it was error to instruct
the jury that they were a part of the relevant community, and
accordingly the conviction cannot stand.
B.
Instruction as to Sensitive Persons
It does not follow, however, as petitioner contends, that the
inclusion of "sensitive persons" in the charge advising the jury of
whom the community consists was error. The District Court's charge
was:
"Thus the brochures, magazines and film are not to be
Page 436 U. S. 299
judged on the basis of your personal opinion. Nor are they to be
judged by their effect on a particularly
sensitive or
insensitive person or group in the community. You are to judge
these materials by the standard of the hypothetical average person
in the community, but, in determining this average standard, you
must include the
sensitive and the insensitive, in other
words, you must include everyone in the community."
(Emphasis added.)
Petitioner's reliance on passages from
Miller, 413 U.S.
at
413 U. S. 33,
and
Smith v. United States, supra at
431 U. S. 304,
for the proposition that inclusion of sensitive persons in the
relevant community was error is misplaced. In
Miller, we
said,
"[T]he primary concern with requiring a jury to apply the
standard of 'the average person, applying contemporary community
standards' is to be certain that, so far as material is not aimed
at a deviant group, it will be judged by its impact on an average
person, rather than a particularly susceptible or sensitive person
-- or indeed a totally insensitive one.
See Roth v. United
States, supra at
354 U. S. 489."
This statement was essentially repeated in
Smith:
"[T]he Court has held that § 1461 embodies a requirement that
local, rather than national, standards should be applied.
Hamling v. United States, supra. Similarly, obscenity is
to be judged according to the average person in the community,
rather than the most prudish or the most tolerant.
Hamling v.
United States, supra; Miller v. California, supra; Roth v. United
States, 354 U. S. 476 (1957). Both of
these substantive limitations are passed on to the jury in the form
of instructions."
(Footnote omitted.)
The point of these passages was to emphasize what was an issue
central to
Roth, that
"judging obscenity by the effect of isolated passages upon the
most susceptible persons, might well
Page 436 U. S. 300
encompass material legitimately treating with sex, and so it
must be rejected as unconstitutionally restrictive of the freedoms
of speech and press."
354 U.S. at
354 U. S. 489.
[
Footnote 5] But nothing in
those opinions suggests that "sensitive" and "insensitive" persons,
however defined, are to be excluded from the community as a whole
for the purpose of deciding if materials are obscene. In the narrow
and limited context of this case, the community includes all adults
who constitute it, and a jury can consider them all in determining
relevant community standards. The vice is in focusing upon the most
susceptible or sensitive members when judging the obscenity of
materials, not in including them along with all others in the
community.
See Mishkin v. New York, 383 U.
S. 502,
383 U. S.
508-509 (1966).
Petitioner relies also on
Hamling v. United States,
418 U. S. 87
(1974), to support his argument. Like
Miller and
Smith, supra, though,
Hamling merely restated the
by now familiar rule that jurors are not to base their decision
about the materials on their "personal opinion, nor by its effect
on a particularly sensitive or insensitive person or group." 418
U.S. at
418 U. S. 107.
It is clear the trial court did not instruct the jury to focus on
sensitive persons or groups. It explicitly said the jury should not
use sensitive persons as a standard, and emphasized that, in
determining the "average person" standard, the jury "must include
the sensitive and the insensitive, in other words . . . everyone in
the community."
The difficulty of framing charges in this area is well
recognized. But the term "average person," as used in this charge,
means what it usually means, and is no less clear than "reasonable
person" used for generations in other contexts.
Cf. Hamling .
United States, supra at
418 U. S.
104-105. Cautionary instructions to avoid subjective
personal and private views in determining community standards can
do no more than tell the individual juror that, in evaluating the
hypothetical "average
Page 436 U. S. 301
person," he is to determine the collective view of the
community, as best as it. can be done.
Simon E. Sobeloff, then Solicitor General, later Chief Judge of
the United States Court of Appeals for the Fourth Circuit, very
aptly stated the dilemma:
"Is the so-called definition of negligence really a definition?
What could be fuzzier than the instruction to the jury that
negligence is a failure to observe that care which would be
observed by 'reasonable man' -- a chimerical creature conjured up
to give an aura of definiteness where definiteness is not possible.
. . . "
"Every man is likely to think of himself as the happy
exemplification of 'the reasonable man;' and so the standard he
adopts in order to fulfill the law's prescription will resemble
himself, or what he thinks he is, or what he thinks he should be,
even if he is not. All these shifts and variation of his personal
norm will find reflection in the verdict. The whole business is
necessarily equivocal. This we recognize, but
we are reconciled
to the impossibility of discovering any form of words that will
ring with perfect clarity and be automatically self-executing.
Alas, there is no magic push-button in this or in other branches of
the law. [
Footnote 6]"
(Emphasis added.)
However one defines "sensitive" or "insensitive" persons, they
are part of the community. The contention that the instruction was
erroneous because it included sensitive persons is therefore
without merit.
C.
Instruction as to Deviant Groups
Challenge is made to the inclusion of "members of a deviant
sexual group" in the charge, which recited:
"The first test to be applied, in determining whether a given
picture is obscene, is whether the predominant
Page 436 U. S. 302
theme or purpose of the picture, when viewed as a whole and not
part by part, and when considered in relation to the intended and
probable recipients, is an appeal to the prurient interest of the
average person of the community as a whole or the prurient interest
of members of a deviant sexual group at the time of mailing."
"
* * * *"
"In applying this test, the question involved is not how the
picture now impresses the individual juror, but rather, considering
the intended and probable recipients, how the picture would have
impressed the average person, or a member of a deviant sexual group
at the time they received the picture."
Examination of some of the materials could lead to the
reasonable conclusion that their prurient appeal would be more
acute to persons of deviant persuasions, but it is equally clear
they were intended to arouse the prurient interest of any reader or
observer. Nothing prevents a court from giving an instruction on
prurient appeal to deviant sexual groups as part of an instruction
pertaining to appeal to the average person when the evidence, as
here, would support such a charge.
See Hamling v. United
States, supra at
418 U. S.
128-130. Many of the exhibits depicted aberrant sexual
activities. These depictions were generally provided along with or
as a part of the materials which apparently were thought likely to
appeal to the prurient interest in sex of nondeviant persons. One
of the mailings even provided a list of deviant sexual groups which
the recipient was asked to mark to indicate interest in receiving
the type of materials thought appealing to that particular
group.
Whether materials are obscene generally can be decided by
viewing them; expert testimony is not necessary.
Ginzburg v.
United States, 383 U.S. at
383 U. S. 465;
Hamling v. United States, supra at
418 U. S. 100;
see Jacobellis v. Ohio, 378 U. S. 184,
378 U. S. 197
(1964) (STEWART, J., concurring). But petitioner claims that to
support
Page 436 U. S. 303
an instruction on appeal to the prurient interest of deviants,
the prosecution must come forward with evidence to guide the jury
in its deliberations, since jurors cannot be presumed to know the
reaction of such groups to stimuli as they would that of the
average person. Concededly, in the past, we have
"reserve[d] judgment . . . on the extreme case . . . where
contested materials are directed at such a bizarre deviant group
that the experience of the trier of fact would be plainly
inadequate to judge whether the material appeals to the
[particular] prurient interest."
Paris Adult Theatre I v. Slaton, 413 U. S.
49,
413 U. S. 56 n.
6 (1973). But here we are not presented with that "extreme" case,
because the Government did, in fact, present expert testimony on
rebuttal which, when combined with the exhibits themselves,
sufficiently guided the jury. This instruction, therefore, was
acceptable.
D.
Instruction as to Pandering
Pandering is "the business of purveying textual or graphic
matter openly advertised to appeal to the erotic interest of their
customers."
Ginzburg v. United States, supra at
383 U. S. 467,
citing
Roth v. United States, 354 U.S. at
354 U. S.
495-496 (Warren, C.J., concurring). We have held, and
reaffirmed, that to aid a jury in its determination of whether
materials are obscene, the methods of their creation, promotion, or
dissemination are relevant.
Splawn v. California,
431 U. S. 595,
431 U. S. 598
(1977);
Hamling v. United States, 418 U.S. at
418 U. S. 130.
In essence, the Court has considered motivation relevant to the
ultimate evaluation if the prosecution offers evidence of
motivation.
In this case, the trial judge gave a pandering instruction to
which the jury could advert if it found "this to be a close case"
under the three-part
Roth-Memoirs test. This was not a
so-called finding instruction which removed the jury's discretion;
rather, it permitted the jury to consider the touting descriptions
along with the materials themselves to determine whether they were
intended to appeal to the recipient's
Page 436 U. S. 304
prurient interest in sex, whether they were "commercial
exploitation of erotica solely for the sake of their prurient
appeal,"
Ginzburg, supra at
383 U. S. 466,
if indeed the evidence admitted of any other purpose. And while it
is true the Government offered no extensive evidence of the methods
of production, editorial goals, if any, methods of operation, or
means of delivery other than the mailings and the names, locations,
and occupations of the recipients, the evidence was sufficient to
trigger the
Ginzburg pandering instruction.
E.
Exclusion of Comparison Evidence
At trial, petitioner proffered, and the trial judge rejected,
two films which were said to have had considerable popular and
commercial success when displayed in Los Angeles and elsewhere
around the country. He proffered this assertedly comparable
material as evidence that materials as explicit as his had secured
community tolerance. Apparently the theory was that display of such
movies had altered the level of community tolerance.
On appeal, the Court of Appeals began an inquiry into whether
the comparison evidence should have been admitted. It held that
exclusion of the evidence was proper as to the printed materials,
but it abandoned the inquiry when, in reliance on the so-called
concurrent sentence doctrine, it concluded that, even if the
comparison evidence had been improperly excluded as to the count
involving petitioner's film, the sentence would not be affected. It
therefore exercised its discretion not to pass on the admissibility
of the comparison evidence, and hence did not review the conviction
on the film count. [
Footnote
7]
However, the sentences on the 11 counts were not, in fact, fully
concurrent; petitioner's 11 prison terms of four years each were
concurrent, but the $500 fines on each of the counts
Page 436 U. S. 305
were cumulative, totaling $5,500, so that a separate fine of
$500 was imposed on the film count. Petitioner thus had at least a
pecuniary interest in securing review of his conviction on each of
the counts.
In light of our disposition of the case, the issue of
admissibility of the comparison evidence is not before us, and we
leave it to the Court of Appeals to decide whether or to what
extent such evidence is relevant to a jury's evaluation of
community standards.
Accordingly, the case is remanded to the Court of Appeals for
further consideration consistent with this opinion.
Reversed and remanded.
[
Footnote 1]
Title 18 U.S.C. § 1461 (1976 ed.) declares, in essence, that
obscene materials are nonmailable and the Postal Service may not be
used to convey them. It provides for fines and imprisonment upon
conviction for its violation.
[
Footnote 2]
Two of the 11 paragraphs of the stipulation, corresponding to
the evidence relating to the 11 charges, do not recite that
petitioner knew the contents of those two particular mailings.
Neither party has made an issue of this apparent oversight, and we
believe it is without significance.
[
Footnote 3]
Indeed, confusion over this issue might have been foreseen in
light of Mr. Justice Harlan's separate opinion in
Roth and
its companion case,
Alberts v. California. He observed
that the correctness of the charge in
Roth was not before
the Court, but must be assumed correct. It was the
constitutionality of the statute which was being decided. 354 U.S.
at
354 U. S. 499
n. 1, 507 n. 8. Simultaneously, he said that he "agree[d] with the
Court, of course, that the books must be judged as a whole and in
relation to the normal
adult reader,"
id. at
354 U. S. 502
(emphasis added; referring to
Alberts), but the "charge
[in
Roth] fail[ed] to measure up to the standards which I
understand the Court to approve. . . ."
Id. at
354 U. S.
507.
The trial judge tried to accommodate petitioners demand that he
be tried under
Roth-Memoirs, and gave almost precisely the
same instruction in this case as had apparently been approved in
Roth.
[
Footnote 4]
During
voir dire, in response to a prospective juror's
question, and after a bench conference with counsel for both sides,
the District Judge said,
"[I]n no way does [the case] involve any distribution of
material of any kind to children, and that the evidence will, that
there will be a stipulation even that there has been no exposure of
any of this evidence to children."
Though the stipulation did not specifically state no children
were involved, it could be so inferred upon reading it. The
Government does not contend otherwise.
[
Footnote 5]
This rejected standard for judging obscenity was first
articulated in
The Queen v. Hicklin, [1868] L.R. 3 Q.B.
360.
[
Footnote 6]
Sobeloff, Insanity and the Criminal Law: From
McNaghten
to
Durham, and Beyond, 41 A.B.A.J. 793, 796 (1955).
[
Footnote 7]
The validity of the concurrent sentence doctrine is not
challenged here.
See Benton v. Maryland, 395 U.
S. 784,
395 U. S. 791
(1969).
MR. JUSTICE STEVENS, concurring.
If the Court were prepared to reexamine this area of the law, I
would vote to reverse this conviction with instructions to dismiss
the indictment.
See Marks v. United States, 430 U.
S. 188,
430 U. S. 198
(STEVENS, J., concurring and dissenting);
Smith v. United
States, 431 U. S. 291,
431 U. S. 311
(STEVENS, J., dissenting);
Splawn v. California,
431 U. S. 595,
431 U. S. 602
(STEVENS, J., dissenting);
Ward v. Illinois, 431 U.
S. 767,
431 U. S. 777
(STEVENS, J., dissenting). But my views are not now the law. The
opinion that THE CHIEF JUSTICE has written is faithful to the cases
on which it relies. For that reason, and because a fifth vote is
necessary to dispose of this case, I join his opinion.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR.
JUSTICE MARSHALL join.
I concur in the judgment reversing petitioner's conviction.
However, because I adhere to the view that this statute is
"
clearly overbroad and unconstitutional on its face,'" see,
e.g., Millican v. United States, 418 U.
S. 947, 948 (1974) (BRENNAN, J., dissenting), quoting
United States v. Orito, 413 U. S. 139,
413 U. S. 148
(1973) (BRENNAN, J., dissenting), I would
Page 436 U. S. 306
not remand for further consideration, but rather with direction
to dismiss the indictment.
MR. JUSTICE POWELL, dissenting.
Although I agree with the Court that, in a federal prosecution,
the instruction as to children should not have been given, on the
facts of this case, I view the error as harmless beyond a
reasonable doubt. I therefore would affirm the judgment of the
Court of Appeals.