State Obscenity Laws:

The "Local Community" Whose Standards Apply in the States

Table I. States which define the community whose standards are to be applied as the State itself by statutory enactment.

 

1. Arizona

Ariz. Rev. Stat. Ann. § 13-3501 2. a.

2. Arkansas

Ark. Stat. Ann. § 5-68-301

3. California

Cal. Penal Code § 311 (a)

4. Connecticut

Conn. Gen. Stat. Ann. § 53a-193 (1) 

5. Hawaii

Haw. Rev. Stat. § 712-1210

6. Illinois

720 ILCS 5/11-20 (c) (4)

7. Iowa

Iowa Code Ann. § 728.4

8. Michigan

Mich. Comp. Laws Ann. 752.362 Sec. 2 (1)

9. North Dakota

N.D. Stat. § 12.1-27.1-01

10. Oregon

Or. Rev. Stat. § 167.087  (2)

11. Pennsylvania

18 Pa. Cons. Stat. Ann. § 5903 (b)

12. Rhode Island and Providence Plantations

R.I. Stat. § 11-31-1  (2)

13. South Dakota

S.D. Codified Laws Ann. § 22-24-27 (1)

14. Wisconsin

Wis.Stat. § 944.21 (2)

 

Table II. States which define the community whose standards are to be applied as the State itself by judicial interpretation alone.

 

1. Alabama

Pierce v. State, 292 Ala. 473, 296 So.2d 218 Ala. (1974).

2. Colorado

People v. Tabron, 190 Colo. 161, 544 P.2d 380 Colo. (1976)

3. Georgia

Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456, 460 (1973)

4. New York

People v. Calbud, Inc. 49 N.Y.2d 389, 393,  426 N.Y.S.2d 238, 240 (1980). Feb 14, 1980

5. Washington

State v. J-R Distributors, Inc., 82 Wash.2d 584, 610, 512 P.2d 1049, 1065 (1973)

 

Table III. States which define the community whose standards are to be applied as the County.

 

1. Florida

Davison v. State, 288 So.2d 483 Fla. (1973)

2. Massachusetts

Mass. Gen. Laws § 272 § 31 (1)

3. New Hampshire

N.H. Rev. Stat. § 650:1 IV.

 

Table IV. Jurisdictions which define the community whose standards are to be applied as the district or political subdivision from which the jury is called.

 

1. United States District Courts

Hamling v. U.S., 418 U.S. 87, 105-6, 94 S.Ct. 2887, 2801-2 (1974) 

2. Minnesota

Minn. Stat. § 617.241 Subd. 1 (c)

3. Nevada

Nev. Rev. Stat. 201.235 1

4. South Carolina

S.C. Code Ann. § 16-15-305.(E)

5. Tennessee

Tenn. Code Ann. § 39-17-901 (2)

6. Texas

Richards v. State, 497 S.W.2d 770, 777 (Civ.App. 1973)

7. Utah

State v. International Amusements, 565 P.2d 1112 (Utah, 1977)

 

 

Thus, twenty-nine American jurisdictions have defined the relevant “community” whose standards are to be applied. * By doing so, they have put any and all potential defendants on notice of the physical dimensions of the relevant benchmark community so that the operators of businesses desiring to sell non-obscene erotica may exert their best efforts and energies in ascertaining standards of acceptance or tolerance of those communities and in adhering to those standards by their own selection of and discrimination in what they choose to distribute from among the commercially available materials.  With an exact and reliable definition of the relevant community, the bookseller may keep aware of arrests, convictions and acquittals in the relevant community;  He may conduct interviews and surveys among persons or groups he knows to be a representative part of that community;  He may learn what materials are available in public libraries; He may learn what materials are being sold, rented, or viewed in other mercantile establishments in the defined community, including those establishments, such as convenience stores and truck stops, which are frequented by wide elements of the community’s population, the stock-in-trade of which may act as a barometer of the reading habits of the commonman;  He may possibly learn what kinds of materials are shipped mail-order into the community or accessed through the Internet on a subscription basis or otherwise;  and He may learn the nature of what material is available on cable TV and at local hotels and motels in room pay-per-view in the defined community.

In the absence of such standards, he can only guess as to the meaning of the community alluded to in the statute, and his uncertainty about its standards will be two layers of conjecture deep.

In the case of expressive materials created by the seemingly infinite power of human imagination, no statute could hope to define all possible ultimate sexual acts and the manner of their depiction, and so, if there are to be obscenity laws, there will always remain some imprecision in the scope of their sweep.  However, the definition of a community, unlike the quest to define all possible dimensions of hard core sexual depictions, is a relatively straightforward undertaking which has been accomplished in twenty-nine jurisdictions. Whether they have decided rightly in creating statewide, countywide, or districtwide communities for the purposes of obscenity law is not as important for the purposes of vagueness as that they have acted, they have defined, and they have thereby put potential lawbreakers on fair notice of the crime.




[*] In seventeen remaining states with obscenity laws of general applicability, including Louisiana [Delaware, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, Virginia, and Wyoming], there appears to be no principle established by statute or case defining the “community” whose contemporary standards are to be applied in a criminal obscenity prosecution. It appears likely that there are no state criminal obscenity statutes of general applicability in Alaska, Maine, New Mexico, West Virginia, or Vermont. (Thanks to a correspondent for some proofreading here.)

Caution: The foregoing information was compiled in 2006 and is not updated. Before making any important legal decision that depends on the accuracy of any of the foregoing information, that information must be critically verified afresh.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is xxxlaw@execpc.com