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The 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. 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 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.
Attendants at two adult bookstores in Rockford, Illinois, were charged separately with violating an Illinois obscenity statute by selling allegedly obscene magazines. At the attendants' respective trials, the juries were instructed to judge whether the magazines were obscene under the three-part test set out in Miller v California (1973) 413 US 15, 37 L Ed 2d 419, 93 S Ct 2607, by determining how the magazines would be viewed by ordinary adults in the whole state of Illinois. Both attendants were found guilty. On appeal, the Illinois Court of Appeals, Second District, affirmed their convictions, rejecting the contention that the third prong of the Miller test--whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value--must be determined on an objective basis and not by reference to contemporary community standards. The Illinois Supreme Court denied review.
Did the jury instruction to apply statewide community standard in deciding value of allegedly obscene magazines violate First Amendment?
The U.S. Supreme Court vacated the judgment and remanded so that the appellate court could consider the harmless error issue. While it was error to instruct the juries to use a state community standard in considering the value question, if no rational juror, if properly instructed, could find value in the magazines the convictions should stand.