Pope v. Illinois, 481 U.S. 497 (1987)

The three-part test for judging if sexually explicit material is obscene as enunciated in Miller v. California, 413 U.S. 15 (1973), required an assessment of ‘‘whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’’ Pope v. Illinois posed the question of whether judges could instruct juries to use community standards when they decided this ‘‘value question.’’

Two employees of an adult bookstore were separately charged of the offense of ‘‘obscenity’’ under Illinois law after they sold magazines to police detectives. At their trials, the judges instructed the juries to determine the value of the magazines based on how they thought ‘‘ordinary adults in the whole State of Illinois’’ would view them. The defendants argued Miller’s value question should be judged ‘‘solely on an objective basis,’’ which the trial courts and state appellate courts rejected.

The Supreme Court, voting six to three, vacated Pope’s conviction and remanded the case to the state courts for reconsideration. Justice White’s majority opinion was joined by Justices Rehnquist, Powell, O’Connor, Scalia (who wrote a concurring opinion), and Blackmun, who concurred in part and dissented in part. Justice Brennan dissented, as well as Justice Stevens whose dissent was joined by Justices Brennan, Marshall, and Blackmun.

Justice White flatly declared, ‘‘There is no suggestion in our cases that the question of the value of an allegedly obscene work is to be determined by reference to community standards. Indeed, our cases are to the contrary.’’ The justice stressed that the majority opinion in Miller was ‘‘careful to point out’’ that the First Amendment protects works of serious value ‘‘regardless of whether the government or a majority of the people approve of the ideas these works represent.’’ The value of such work, moreover, does not vary from community to community according to whether or to what degree the work wins public acceptance.

Justice White concluded that the ‘‘proper inquiry,’’ contrary to the approach taken in Illinois, did not rest on how ‘‘ordinary members’’ of a particular community view the social value of an allegedly obscene work; rather it depended on whether a ‘‘reasonable person,’’ using by implication a national standard, found social value in the work taken as a whole. In a footnote, Justice White, trying to clarify his position, stated that ‘‘the mere fact ... only a minority of a population may believe a work has serious value does not mean the ‘reasonable person’ standard’ would not be met.’’ The justice’s adoption of this legal fiction in effect followed Justice Brennan’s holding in Jacobellis v. Ohio, 503 U.S. 540 (1964), where he stated Roth’s (Roth v. United States, 354 U.S. 476, 1957) three elements had to be separately applied; the Illinois courts conflated Miller’s second and third elements by answering the value question according to community standards.

Justice Scalia agreed only with Justice White’s interpretation of the intent of the Miller test but quickly cast doubts on whether an objective assessment of literary or artistic value was possible and suggested the ‘‘fabled ‘reasonable man’’’ will be of ‘‘little help’’ in the inquiry. Justice Brennan’s dissent restated his view that criminalizing the sale of obscene materials to consenting adults is unconstitutional. Justice Steven’s lengthy dissent critiqued Justice White’s incorporation of the ‘‘reasonable person’’ into the Miller test. He stressed in particular the improbability that this legal fiction would produce a consensus on obscenity that had eluded the justices’ best efforts or allow purveyors of pornography like Pope to know when a magazine or other material crossed the legal threshold and became obscene and thus when they were violating the law.

ROY B. FLEMMING

References and Further Reading

• Hixson, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois University Press, 1996.
• Mackey, Thomas C. Pornography on Trial: A Handbook With Cases, Law, and Documents. Santa Barbara, CA: ABC–Clio, 2002.

Cases and Statutes Cited

• Jacobellis v. State of Ohio, 503 U.S. 540 (1964)
• Miller v. California, 413 U.S. 15 (1973)
• Pope v. Illinois, 481 U.S. 497 (1987)
• Roth v. United States, 354 U.S. 476 (1957)