The Bill of Rights and the 14th Amendment

First Amendment

How does the notion of community standards affect obscenity cases?

The first two prongs of the Miller test—prurient interest and patent offensiveness—are both judged by community standards. The applicable community could be a local or state standard. In a few states, there is a state-wide standard. In some states the community is county-by-county. There is no national standard or international standard in obscenity cases. This becomes a major issue in cases involving alleged obscenity on the Internet. Defendants—especially publishers or distributors of pornographic material—have alleged it is unfair for them to be subject to the community standards of a particularly restrictive locale when they for instance may have produced the material in a more tolerant community.

This occurred in a case United States v. Thomas (6th Cir. 1996) involving a California couple responsible for the creation of an online bulletin board full of sex materials. The California-based couple sold material to an undercover federal law enforcement agent in Memphis. The officer then charged the couple with obscenity and the case was prosecuted under the community standards of Tennessee, not California.


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