The Relevant Community - Miller v. California, 413 U.S. 15 (1973); Hamling v. United States, 418 U.S. 87 (1974) and Smith v. United States, 431 U.S. 291 (1977) have put to rest the controversy as to which is the "relevant" community which the trier of fact must use in judging whether the average person applying community standards would find appeal to the prurient interest. These three cases, considered together, have given a new frame of reference. Miller says a national community is not constitutionally required and Hamling interprets Miller further to mean that no precise geographical area is a constitutional requirement for establishing the relevant community. Miller says that the community may be statewide and Hamling says that Miller also permits the use of smaller geographical communities such as the community or vicinage from which the jurors come. The jury may properly apply the community standards of that district although evidence of standards outside that district may be admitted. Smith adds that the state can define a geographic limit to community standards by defining the area from which a jury could be selected.

OLR Note - It would appear from Hamling that if a state court construction of its statute requires that a state community standard be applied, that such may be done. In the absence of a statute or such construction, it would appear that "local" standards may be utilized by the jurors. The phrase used by the court in Hamling referred to the permissible use by the jurors of the standards of the "community" or "vicinage" from which they come. This will normally permit the use of county standards or federal district standards, if a federal case. In fact community standards may be utilized without reference to a precise geographical area.

Measuring Contemporary Community Standards - The judge of contemporary community standards is the trier of the fact. The jurors are entitled to draw on their knowledge of the norms of the community from which he or she may come. He or she is also the judge of whether the "average person" in applying such standards would find that the disputed material appeals to "prurient interest" or is "patently offensive." "Experts" may be used 'to testify as to the nature of the contemporary community standards,' but such testimony is not constitutionally required Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). "Comparables" or similar materials found "Not Obscene" or "Obscene" in other communities or before other triers of fact need not be admitted in determining the contemporary standards of a particular community. "Contemporary" means "present day" standards. The standards to be measured are those which deal with the depiction or description of sexual conduct. The "Community" may be the area from which the jurors are drawn if the case were to be tried by a jury. The constituent members of the community are men, women and children. Where a federal prosecution is involved and children are not intended recipients of the material, they are not to be specifically included in the equation Pinkus v. United States, 436 U.S. 293 (1978). The relevant communities with regard to a federal violation will ordinarily be the federal district in which the case is heard. The presence or absence of a state statute on obscenity is irrelevant in the determination of federal district standards.

Pope v. Illinois, decided in 1987, clarified the fact that the third prong of the Miller test is not to be modified by the phrase "community standards." That case indicated that the trier of the fact should determine whether a "reasonable person" would find serious literary, artistic, political or scientific value in such material taken as a whole.

Role of Community Standards - It appears that since the Miller decision the public has been confused about the significance of community standards in determining whether particular matter is obscene. It has been elevated by such confusion to a role not intended by the Supreme Court. It is clear that it is not an essential element of the definition of prurient appeal or patent offensiveness, but only a control or ruler to be applied to these concepts to avoid the application of personal or individual standards.

To see all of the cases in the Obscenity Law Reporter on "community standards," you can download a PDF version of this chapter. (354 KB file size)