Pope v. Illinois (1986)
- Docket
- 85-1973
- Decided
- 1986-01-01
Summary
Question: May a jury be instructed to apply community standards regarding the value of a work to satisfy the third prong of the obscenity test established by the Court in Miller v. California ? Conclusion: No. Justice Byron R. White delivered the opinion of the 5-4 majority. The Court held that, while the first two prongs of the Miller test may be determined based on contemporary community standards, the third prong must be determined based on whether a reasonable person would find value in the material. In this manner, the work in question is protected from needing to obtain majority approval to be deemed of value. Because the statute under which Pope and Morrison were convicted had already been repealed, the Court held that the case should be remanded for consideration of whether the error in this case was harmless. In his concurring opinion, Justice Scalia agreed that the Miller test was meant to be adjudicated based on what a reasonable person would find valuable, but he also argued that art could not be judged objectively. Justice Harry A. Blackmun wrote a partial concurrence and partial dissent in which he argued that the “harmless error” analysis proposed in the majority opinion was inappropriate in this case, but the majority opinion correctly protected a work from being judged solely by the value, or lack thereof, that a majority of community members might ascribe to it. Justice John Paul Stevens wrote a dissent in which he argued that the error in this case was harmful to Pope and Morrison because the jury evaluated their guilt based on unconstitutional instructions. Justice Stevens also wrote that the majority opinion’s attempt to clarify the definition of obscenity subjected the First Amendment’s protection of free speech to the whims of jurors who might believe that a majority view on the value of a work is more reasonable than a minority view. The difficulty in attempting to define obscenity reflects what Justice Stevens found to be the constitutional impossibility of criminalizing the creation or sale of obscene literature to consenting adults. Justice Thurgood Marshall, Justice William J. Brennan, Jr., and Justice Blackmun joined in the dissent. In his separate dissent, Justice Brennan wrote that the concept of obscenity cannot be sufficiently defined to provide fair notice to the creators and purveyors of sexually oriented materials without also seriously undermining the First Amendment protection of free speech.