NCJ Number
14524
Journal
St John's Law Review Volume: 48 Issue: 3 Dated: (MARCH 1974) Pages: 568-610
Date Published
1974
Length
43 pages
Annotation
CRITIQUE OF THE JUDICIAL INTERPRETATIONS OF OBSCENITY AS OUTSIDE THE PROTECTION OF THE FIRST AMENDMENT WITH PARTICULAR ATTENTION TO THE 1973 SUPREME COURT DECISION ALLOWING A LOCAL - NOT NATIONWIDE - OBSCENITY STANDARD.
Abstract
THE HISTORICAL BACKGROUND OF THE SOVERIGN'S ATTEMPTS TO CRIMINALIZE OBSCENE BEHAVIOR AND LITERATURE IS TRACED AND THE MANY DIFFICULTIES INVOLVED IN SATISFACTORALLY DEFINING WHAT IS OBSCENE ARE REVIEWED. THE ESSENCE OF THE MILLER DECISION IS THE ALLOCATION TO THE LOCAL COMMUNITY OF THE POWER TO DETERMINE OBSCENITY. PRIOR TO THE MILLER DECISION, CONCEPTS SUCH AS THE 'AVERAGE PERSON' WERE USED HOWEVER, THE MILLER COURT RECOGNIZED THAT THE AVERAGE CITIZEN MAY DIFFER AMONG VARYING COMMUNITIES. THIS LEFT A QUESTION AS TO THE OPTIMAL SIZE OF THE COMMUNITY WHICH WAS TO BE THE FOUNDATION OF THE RELEVANT OBSCENITY STANDARD. THE SUPREME COURT RULED THAT IF STATES SO DESIRE THEY MAY REGULATE OBSCENITY WITHIN THEIR BOUNDARIES. PROBLEMS OF LOCAL AUTONOMY OF COMMUNITIES WITHIN A STATE HAVE NOT YET BEEN RESOLVED. THERE IS STILL A GREAT DEAL OF VAGUENESS IN THE NEW LEGAL DEFINITION OF OBSCENITY. THE COMPONENTS OF THE DEFINITION ARE NOW LEFT TO THE INTERPRETATION OF 'LOCAL' COMMUNITIES. WHICH PERSON OR GROUP OF PEOPLE SHOULD BE ENTRUSTED WITH THIS DETERMINATION IS PROBLEMATIC. IF THE VIEWS OF A COMMUNITY ARE RELATIVELY HOMOGENEOUS, AN OTHERWISE DIFFICULT TASK MAY BE ALLEVIATED. HOWEVER, IT HAS NOT YET BEEN DETERMINED WHAT SIZE COMMUNITY MIGHT, IN FACT, BE REGARDED AS HOMOGENEOUS IN OUTLOOK, OR WHAT WOULD BE THE IMPLICATIONS OF A GREAT DIVERSITY OF OBSCENITY LAWS ON AN ISSUE TOUCHING ALL OF AMERICAN SOCIETY. IN GENERAL, THE SUPREME COURT DECISION IS INTENDED TO GIVE PROSECUTORS AND THE POLICE MORE POWER TO DETER THE DISSEMINATION OF PORNOGRAPHY. (AUTHRO ABSTRACT)