Obscenity and Indecency


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The Honorable John. R. Doe, Judge


Student’s Name, Judge

Case Summary

Petitioner bookstore owner was found by a jury to be guilty of obscenity when she sold the book The Genius, written by Theodore Dreiser, to the public. Respondents argued successfully in Superior Court that the passage in question was obscene and therefore not protected by the First Amendment. Petitioner appeals the decision under the claim that the book in its entirety has redeeming social value and is therefore protected by the First Amendment.


The issues before the Court are whether the lower court erred when it allowed the passage in question to be considered obscene or not in isolation from the rest of the material contained in the book, thereby precluding the jury from considering the literary merits of the entire work.


The District Attorney for the City of Indianapolis arrested the petitioner on obscenity charges when she sold a copy of the book The Genius to the public on November 1, 2013. The petitioner was found guilty of obscenity by a jury on November 2, 2013, based on a single passage no more than 72 words in length. The petitioner was fined one dollar and spent a single day in jail, but with the encouragement and support of fellow booksellers around the nation decided that The Genius was too important from a literary perspective to allow the verdict to stand and appealed the decision.


The Comstock Act of 1873 made the use of obscene material for commercial purposes illegal within the United States. This statute remain unchallenged in federal courts until 1957 when the Supreme Court ruled in Roth v. United States that obscene material does not enjoy First Amendment protections.

Ever since the Roth decision the Supreme Court has tried to create a robust definition of obscenity. In 1974, the Court in its decision in Miller v. California finally developed the current definition that depends on a three pronged test. Under this test the work in question must meet all three criteria. These criteria are as follows:

1. Prurient Interests: if an average person living in a community applies contemporary standards when considering the work in its entirety and finds it appeals to prurient interests, then the work meets the first obscenity test.

2. Patently Offensive: the work must describe a sexual act in a patently offensive manner, which is specifically prohibited under state law.

3. Lacks Redeeming Social Value: the work must lack any socially redeeming value when considered in its entirety.

For a work to appeal to prurient interests it must be both sexual in nature and cause an average adult to be ashamed of their reaction when the material is read. It is not enough that an average person experiences lust, they also must feel a morbid or lascivious interest in the sexual material. In other words, feeling embarrassed or aroused when reading a sexually explicit passage in a book is not sufficient for the work to be judged obscene. The average person judging the obscenity of the material must also be an adult with average moral standards and not a moral or sexual outlier within the community.

The community standard changed with the Court’s decision in Miller by favoring a community standard over a national one. This holding gave states, counties, and cities considerable latitude for deciding what constituted obscene material within their own jurisdictions. What might be considered obscene in rural Washington, for example, would probably elicit little more than a yawn in Los Angeles. Since the jury of twelve adults found the passage from The Genius to be obscene within Indiana and assuming that the sexual sensibilities of the jury members were a representative sampling of the community as a whole, then the passage met the first test under Miller.

The second test under Miller involves determining whether the work is patently offensive. Pornography, even though it may be considered offensive by some people, is protected by the First Amendment. Depictions or descriptions of normal or perverse sexual acts may or may not be obscene depending on how it is described or depicted. According to the Court in Miller a sexual act is obscene if it provides too much sexual detail and/or is repetitive in nature. In essence, the Court in Miller was attempting to draw a line between constitutionally-protected pornography and hard-core pornography which is not protected speech. Generally speaking, nudity is in itself not offensive, but the inclusion of genitalia descriptions during a sexual act could be considered obscene.

The passage from The Genius presented to the jury for consideration did not contain any descriptions of nudity, let alone descriptions of genitalia during a sexual act. The passage contains no detailed descriptions of a sexual act and cannot be considered repetitive since only a single passage was presented to the jury. Based on this analysis the passage from The Genius is not obscene using the second test under Miller.

The final test of obscenity under Miller is whether the literary work, when considered as a whole, contains any socially redeeming value. This test was first formulated in Roth; therefore at least two Supreme Courts have weighed in on this obscenity test and both have confirmed that judging the social merits of a literary work cannot depend on just a single chapter or passage considered in isolation from the work as a whole. In addition, the Supreme Court ruled in Pope v. Illinois (1987) that a reasonable person, rather than an average person, should judge whether a literary work has any redeeming social value. This ruling shifted the responsibility for judging the social merits of a work away from the masses and handed it to the experts. The use of a reasonable person to judge the value of a literary work provides a check on the will of the majority. Experts are often called upon to assess the value of a work before making an obscenity determination and this was not done during the jury trial. This failure also renders the obscenity conviction invalid.

According to many literary experts the works of the early 20th century writer Theodore Dreiser places him among the best writers of that era. Based on this alone there would be a presumption that his book The Genius would be important to the social fabric of both the early 20th century and contemporary America. Any student of literature, especially from a historical perspective, would probably be outraged if any of Dreiser’s works were eliminated from the public domain because a thorough understanding of the writer would require access to all of his writings, not just a few. Based on this alone The Genius cannot be judged obscene.

A literary work also has to be considered in its entirety under the value test of Roth and Miller. The respondent only presented a single 72-word passage to the jury for consideration and therefore the jury could not consider the literary merits of the work as a whole. The Supreme Court in both Roth and Miller continued its support of this requirement by aligning itself with the 1933 lower federal court decision that overturned a ban on the import of James Joyce’s Ulysses because it included descriptions of explicit sexual acts. The judge in the case felt the inclusion of the descriptions was an essential component of what was a sincere and serious literary work that had significant social value. Given that the Indiana jury failed to consider the merits of the entire work the lower court erred and the obscenity ruling is rendered invalid.


Based on the analysis…


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