Under all three parts of the Miller test, does a jury consider “community standards”?

Friday, November 15, 2002

Juries apply “contemporary community standards” to the first two prongs of the Miller test — the prurient-interest and patently offensive prongs. However, the U.S. Supreme Court ruled in its 1987 decision Pope v. Illinois that the serious-value question was to be determined by a reasonable-person standard — whether a reasonable person would judge a work to have serious value — rather than by community standards.

The Court reasoned: “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.”

This means that a work could receive protection under a national reasonable person standard even if the work would fail the standards of a more restrictive community.