Bill calls for end of California’s statewide obscenity standard

Thursday, February 26, 1998

A measure recently introduced in the California senate would dramatically change the state's obscenity law to allow juries to define obscenity at the local level rather than applying a statewide standard.

State Sen. Dick Mountjoy proposed Senate Bill 1859 in an effort to allow local communities to define obscene material based on their own community morals, eliminating the need to consider standards in larger cities.

California's current law defines obscene matter with reference to a statewide standard. Mountjoy said this standard does not adequately protect the moral values of more conservative communities.

“Each community should determine its own standards with respect to what residents perceive is obscene,” the senator said in a press release. “What people of Alpine County or Orange County consider obscene, the people of San Francisco may not. Senate Bill 1859 will allow these varying standards to be respected.”

Mountjoy says his proposed legislation adopts a “pure Miller standard” in defining obscenity. In the 1973 case Miller v. California, the U.S. Supreme Court established “basic guidelines”—collectively called the Miller test—for juries to consider in obscenity cases.

The test requires jurors to consider “contemporary community standards” in determining whether material is obscene. The Supreme Court gave states little guidance on how to define “community.” Instead, the court wrote: “We emphasize that it is not our function to propose regulatory schemes for the States.”

Kat Sunlove, lobbyist for The Free Speech Coalition, a self-described “adult entertainment trade association,” called the legislation “horrible, very horrible.”

She said: “This bill would make it virtually impossible to do business in the state of California if you are in the adult entertainment business.”

Sunlove said “the local community standard is simply too small a criteria for speech. Such a standard doesn't reflect the broad base of American plurality.”

Mountjoy has said it is “unfair and discriminatory to impose the standards of some communities on all Californians.”