Jury’s obscenity finding must be thrown out, says Wisconsin appeals court

Tuesday, July 27, 1999

Prosecutors must retry an obscenity case against a video store because the judge improperly instructed the jury, a Wisconsin appeals court has ruled.

A jury had found that Tee & Bee, Inc., which does business as Super Video, sold an obscene videotape entitled “Wall to Wall the Way You Like It, Vol. 13″ to an undercover police officer. The state then brought a civil action against the store. After the jury ruled the videotape obscene, the trial judge imposed a $2,500 civil forfeiture fee.

On appeal, Tee & Bee, Inc. argued that the jury's finding should be thrown out because the judge improperly instructed the jury on the law of obscenity.

Specifically, the video store argued the judge erred by:

  • Failing to give the jury a proper “tolerance standard” instruction.
  • Not properly defining the term “prurient interest.”
  • Failing to instruct the jury that the community standard is a statewide, rather than local, standard.

The store had asked the trial judge to instruct the jury that “the line between protected expression and punishable obscenity must be drawn at the limits of the community's tolerance rather than in accordance with the dangerous standards of individual propriety and taste.”

Instead of giving a “tolerance standard” instruction, the judge told the jury that “contemporary community standards are defined in the laws as the prevailing accepted standards existing as of January 12, 1995, not what is tolerated, of average adult people in the State of Wisconsin.”

The Wisconsin appeals court ruled that this instruction was flawed because it conflicted with U.S. Supreme Court case law stating that “contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community.”

Tee & Bee, Inc. also contended the trial judge misstated the law of obscenity to the jury by wrongfully defining the term “prurience.”

When it set out general guidelines for obscenity cases in the 1973 decision Miller v. California, the U.S. Supreme Court said the first guideline of the Miller test is that the material must appeal to the “prurient” or lustful interest. Prurience has been defined as having a shameful or morbid interest in sex.

The trial judge instructed the jury that “appealing to the prurient interests means the material attempts to or intends to appeal generally to a shameful or morbid interest in sex.”

The store contended that the language “attempts to or intends to appeal” stretched the general definition of prurience. The appeals court agreed, writing that those terms “are not elements of the offense, nor properly included in the definition of prurience.”

Finally, the appeals court found another error in the trial judge's instructions. According to the appeals court, the trial judge erred in failing to tell the jury to apply a statewide community standard instead of a local community standard.

“Because obscenity and First Amendment rights are matters of statewide concern … statewide community standards must be used in determining whether material is obscene,” the appeals court wrote in its July 20 decision in State v. Tee & Bee, Inc.

Even though the judge's instructions at one point referred to the community as the State of Wisconsin, the appeals court noted that in other parts of the instructions, the jury could have been “misled” into believing the proper community standard was local.

The appeals court concluded: “We agree with Super Video that, without clear instruction, the common meaning of 'community' is typically not the State, but a smaller geographical area, such as the city or county from which the jurors were drawn. Thus, the jury may have been misled into believing that a county or even a neighborhood standard, rather that a state standard, was to be applied.”

Jeff Olson, attorney for the video store, said the appeals court decision was important because it recognized the importance of applying a statewide standard in obscenity cases. “When you start slicing the geographical picture too thin in determining community standards, you run the risk of creating a law that doesn't give notice to a person who wants to engage in First Amendment-protected activity whether his or her conduct violates the law,” he said.

Kenneth Berg, the assistant district attorney who handled the case, said the state had not yet determined whether to appeal the ruling or to retry the video store. “We are still exploring all of our options,” he said. “This is a 30-60 day review process.”