481 U.S. 497 (1987), 85-1973, Pope v. Illinois

Docket Nº:No. 85-1973
Citation:481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439, 55 U.S.L.W. 4595
Party Name:Pope v. Illinois
Case Date:May 04, 1987
Court:United States Supreme Court
 
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Page 497

481 U.S. 497 (1987)

107 S.Ct. 1918, 95 L.Ed.2d 439, 55 U.S.L.W. 4595

Pope

v.

Illinois

No. 85-1973

United States Supreme Court

May 4, 1987

Argued February 24, 1987

CERTIORARI TO THE APPELLATE COURT OF ILLINOIS,

SECOND DISTRICT

Syllabus

Under Miller v. California, 413 U.S. 15, the third or "value" prong of the tripartite test for judging whether material is obscene requires the trier of fact to determine "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." After petitioners, both of whom were attendants at adult bookstores, sold certain magazines to police, they were separately charged with the offense of "obscenity" under Illinois law. Both trial courts instructed the respective juries that, to convict, they must find, inter alia, that the magazines were without "value." The juries were also instructed to judge whether the material was obscene by determining how it would be viewed by ordinary adults in the whole State of Illinois. The State Appellate Court affirmed both petitioners' convictions, rejecting their contention that the "value" issue must be determined solely on an objective basis, and not by reference to "contemporary community standards."

Held:

1. In a prosecution for the sale of allegedly obscene materials, the jury should not be instructed to apply community standards in deciding the value question. Only the first and second prongs of the Miller test -- appeal to prurient interest and patent offensiveness -- should be decided with reference to "contemporary community standards." The ideas that a work represents need not obtain majority approval to merit protection, and the value of that work does not vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community would find serious value in the allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole. The instruction at issue therefore violated the First and Fourteenth Amendments. Pp. 500-501.

2. Whether petitioners' convictions should be reversed outright, or are subject to salvage because the erroneous instruction constituted harmless error, will not be decided by this Court, since the State Appellate Court has not considered the harmless error issue. Under Rose v. Clark, 478 U.S. 570, in the absence of error that renders a trial fundamentally unfair, a conviction should be affirmed where the reviewing court can find that the record developed at trial established guilt beyond

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a reasonable doubt. Here, since the jurors were not precluded from considering the value question, petitioners' convictions should stand despite the erroneous "community standards" instruction if the appellate court concludes that no rational juror, if properly instructed, could find "value" in the magazines petitioners sold. Pp. 501-504.

138 Ill.App.3d 726, 486 N.E.2d 350, vacated and remanded.

WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and POWELL, O'CONNOR, and SCALIA, JJ., joined, and in Parts I and II of which BLACKMUN, J., joined. SCALIA, J., filed a concurring opinion, post, p. 504. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, post, p. 505. BRENNAN, J., filed a dissenting opinion, post, p. 506. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, in all but n. 11 of which BRENNAN, J., joined, and in Part I of which BLACKMUN, J., joined, post, p. 507.

WHITE, J., lead opinion

[107 S.Ct. 1920] JUSTICE WHITE delivered the opinion of the Court.

In Miller v. California, 413 U.S. 15 (1973), the Court set out a tripartite test for judging whether material is obscene. The third prong of the Miller test requires the trier of fact to determine "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id. at 24. The issue in this case is whether, in a prosecution for

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the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question.

I

On July 21, 1983, Rockford, Illinois, police detectives purchased certain magazines from the two petitioners, each of whom was an attendant at an adult bookstore. Petitioners were subsequently charged separately with the offense of "obscenity" for the sale of these magazines. Each petitioner moved to dismiss the charges against him on the ground that the then-current version of the Illinois obscenity statute, Ill.Rev.Stat., ch. 38, ¶ 11-20 (1983), violated the First and Fourteenth Amendments to the United States Constitution. Both petitioners argued, among other things, that the statute was unconstitutional in failing to require that the value question be judged "solely on an objective basis, as opposed to reference [sic] to contemporary community standards." App. 8, 22.1 Both trial courts rejected this contention, and instructed the respective juries to judge whether the material was obscene by determining how it would be viewed by ordinary adults in the whole State of Illinois.2 Both petitioners

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were found guilty, and both appealed to the Illinois Appellate Court, Second District. That court also rejected petitioners' contention that the issue of value must be determined on an objective basis, and not by reference to contemporary community standards. 138 Ill.App.3d 726, 486 N.E.2d 350 (1985); 138 Ill.App.3d 595, 486 N.E.2d 345 (1985). The Illinois Supreme Court denied review, and we granted certiorari, 479 U.S. 812 (1986).

II

There is no suggestion in our cases that the question of the value of an allegedly obscene work is to be determined by reference to community standards. Indeed, our cases are to the contrary. Smith v. United States, 431 U.S. 291 (1977), held that, in a federal prosecution for mailing obscene materials, the first and second prongs of the Miller test -- appeal to prurient interest and patent offensiveness -- are issues of fact for the jury to determine applying contemporary community standards. The Court then observed that, unlike prurient appeal and patent [107 S.Ct. 1921] offensiveness, "[l]iterary, artistic, political, or scientific value . . . is not discussed in Miller in terms of contemporary community standards." Id. at 301 (citing F. Schauer, The Law of Obscenity 123-124 (1976)). This comment was not meant to point out an oversight in the Miller opinion, but to call attention to and approve a deliberate choice.

In Miller itself, the Court was careful to point out that

[t]he First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.

413 U.S. at 34. Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community

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would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.3 The instruction at issue in this case was therefore unconstitutional.

III

The question remains whether the convictions should be reversed outright, or are subject to salvage if the erroneous instruction is found to be harmless error. Petitioners contend that the statute is invalid on its face, and that the convictions must necessarily be reversed because, as we understand it, the State should not be allowed to preserve any conviction under a law that poses a threat to First Amendment values. But the statute under which petitioners were convicted is no longer on the books; it has been repealed and replaced by a statute that does not call for the application of community standards to the value question.4 Facial invalidation

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of the repealed statute would not serve the purpose of preventing future prosecutions under a constitutionally defective standard. Cf., e.g., Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 964-968, and n. 13 (1984). And if we did facially invalidate the repealed statute and reverse petitioners' convictions, petitioners could still be retried under that statute, provided that the erroneous instruction was not repeated, because petitioners could not plausibly claim that the repealed statute failed to give them notice [107 S.Ct. 1922] that the sale of obscene materials would be prosecuted. See Dombrowski v. Pfister, 380 U.S. 479, 491, n. 7 (1965); United States v. Thirty-seven Photographs, 402 U.S. 363, 375, n. 3 (1971). Under these circumstances, we see no reason to require a retrial if it can be said beyond a reasonable doubt that the jury's verdict in this case was not affected by the erroneous instruction.

The situation here is comparable to that in Rose v. Clark, 478 U.S. 570 (1986). In Rose, the jury in a murder trial was incorrectly instructed on the element of malice,5 yet the Court held that a harmless error inquiry was appropriate. The Court explained that, in the absence of error that renders a trial fundamentally unfair, such as denial of the right to counsel or trial before a financially interested judge, a conviction should be affirmed "[w]here a reviewing court can find that the record developed at trial established guilt beyond a

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reasonable doubt. . . ." Id. at 579. The error in Rose did not entirely preclude the jury from considering the element of malice, id. at 580, n. 8, and the fact that the jury could conceivably have had the impermissible presumption in mind when it considered the element of malice was...

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