Pennsylvania considers letting local juries define obscenity

Thursday, February 19, 1998

Pennsylvania legislators are considering a bill that would change state obscenity law to allow local juries to define “community standards” based on the mores of their respective counties.

The bill, currently before a House judiciary subcommittee, would allow juries to determine what material is acceptable in their own community—without having to determine standards of other localities. Current law defines the “community” as the state.

Rep. Thomas Armstrong (R-Lancaster) said he sponsored the legislation because of a case five years ago in his jurisdiction in which a jury acquitted a novelty shop employee who distributed a sex video of obscenity charges.

Armstrong said he believes the jury would have convicted the individual of obscenity if it could have defined “community standards” based on Lancaster County standards.

Dorn Checkley, director of Pennsylvania vs. Pornography, supports the legislation: “It is hard enough to ask a jury to figure out what is acceptable in their community, much less asking them to try to figure out what is acceptable in Erie or Allentown or Pittsburgh or Philadelphia.”

But First Amendment advocates warn the bill, if passed, would severely restrict free speech. Video store and theater owners, for example, fear that material could be declared obscene in conservative counties and could be perfectly acceptable for other areas of the state.

“This measure would wreak havoc with the state obscenity law,” said Robert Richards, founding director of the Pennsylvania Center for the First Amendment.

“It is difficult enough now to have some consistency in the results of obscenity cases,” he said. “A jury in a rural community would have real differences of opinion with juries in Pittsburgh or Philadelphia,” he said in an interview with the First Amendment Center.

Richards criticized the proposed legislation as “running contrary to First Amendment interests. There will simply not be equal justice under the law if this measure passes. There are approximately 66 or 67 different counties in Pennsylvania. With this legislation, we would have 66 or 67 different standards of what obscenity is.”

Defining obscenity and the applicable standards can be a daunting task for jurors. In a 1973 case, Miller v. California, the U.S. Supreme Court established “basic guidelines”—collectively called the Miller test—for juries to consider in obscenity prosecutions.

These guidelines are: (1) “whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

In Miller, the court emphasized that “it is not our function to propose regulatory schemes for the States.” This comment has given rise to states adopting different methods for juries to determine “contemporary community standards.”

Professor Eric M. Freedman, who teaches First Amendment law at Hofstra University School of Law, fears that the attempt to enact separate obscenity standards for each county could “further the negative and regrettable trend of balkanizing the First Amendment by reducing state law to the lowest common denominator. “

He told the FAC: “This is an attempt to further pursue a conservative strategy and is antithetical to the First Amendment as the protector of a national dialogue. This Pennsylvania bill is a progression from the Miller test itself which was a major step backwards in large part because it invented this whole concept of ‘community standards.’

“The First Amendment can be eviscerated if mobilized activists in different localities can impose their own speech preferences on the rest of the people. Fortunately, even if this idea is taken as far as it can go, there will still be limits because only a tiny fraction of material in society can qualify as legally obscene.”

An FAC call placed to Armstrong was not returned.

— The Associated Press contributed to this report.