POPE V. ILLINOIS, 481 U. S. 497 (1987)

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U.S. Supreme Court

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

Pope v. Illinois

No. 85-1973

Argued February 24, 1987

Decided May 4, 1987

481 U.S. 497


Under Miller v. California, 413 U. S. 15, the third or "value" prong of the tripartite test for judging whether material is obscene requires the trier of fact to determine "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." After petitioners, both of whom were attendants at adult bookstores, sold certain magazines to police, they were separately charged with the offense of "obscenity" under Illinois law. Both trial courts instructed the respective juries that, to convict, they must find, inter alia, that the magazines were without "value." The juries were also instructed to judge whether the material was obscene by determining how it would be viewed by ordinary adults in the whole State of Illinois. The State Appellate Court affirmed both petitioners' convictions, rejecting their contention that the "value" issue must be determined solely on an objective basis, and not by reference to "contemporary community standards."


1. In a prosecution for the sale of allegedly obscene materials, the jury should not be instructed to apply community standards in deciding the value question. Only the first and second prongs of the Miller test -- appeal to prurient interest and patent offensiveness -- should be decided with reference to "contemporary community standards." The ideas that a work represents need not obtain majority approval to merit protection, and the value of that work does not vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community would find serious value in the allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole. The instruction at issue therefore violated the First and Fourteenth Amendments. Pp. 481 U. S. 500-501.

2. Whether petitioners' convictions should be reversed outright, or are subject to salvage because the erroneous instruction constituted harmless error, will not be decided by this Court, since the State Appellate Court has not considered the harmless error issue. Under Rose v. Clark, 478 U. S. 570, in the absence of error that renders a trial fundamentally unfair, a conviction should be affirmed where the reviewing court can find that the record developed at trial established guilt beyond

Page 481 U. S. 498

a reasonable doubt. Here, since the jurors were not precluded from considering the value question, petitioners' convictions should stand despite the erroneous "community standards" instruction if the appellate court concludes that no rational juror, if properly instructed, could find "value" in the magazines petitioners sold. Pp. 481 U. S. 501-504.

138 Ill.App.3d 726, 486 N.E.2d 350, vacated and remanded.

WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J.,and POWELL, O'CONNOR, and SCALIA, JJ., joined, and in Parts I and II of which BLACKMUN, J., joined. SCALIA, J., filed a concurring opinion, post, p. 481 U. S. 504. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, post, p. 481 U. S. 505. BRENNAN, J., filed a dissenting opinion, post, p. 481 U. S. 506. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, in all but n. 11 of which BRENNAN, J., joined, and in Part I of which BLACKMUN, J., joined, post, p. 481 U. S. 507.

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