Memoirs of a Woman of Pleasure Introduced an Intermediate Second Prong in the Test for Obscenity as "Affronting Current Community Standards" - The Third Circuit in 1964 equated this prong with the Manual Enterprises quality of patent offensiveness or indecency. Miller v. California rejected the Memoirs formula and substituted its own guidelines reverting again to the phrase "patent offensiveness" found originally in Manual Enterprises.

As Part of Miller Guidelines - Miller requires, that a work "portray sexual conduct in a patently offensive way." The trier of fact must determine "whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law" as written or authoritatively construed. Miller specifically approved a charge to the jury to determine if the material affronted "contemporary community standards of decency."

Patent Offensiveness to be Determined by Contemporary Community Standards - While Miller does not specify that patent offensiveness be measured against contemporary community standards, United States v. B & H Distributing Corp., 375 F.Supp. 136 (W.D. Wis. 1974), indicates that such was the intention. In 1977, the United States Supreme Court in Smith v. United States, 431 U.S. 291, held that Miller did intend that the jury measure patent offensiveness against contemporary community standards.

Has Smith v. United States Changed the Test From Community Standards of Decency to Community Standards of Tolerance? - A statement in Smith v. United States to the effect that "community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in the community," and "that obscenity is to be judged according to the average person in the community rather than the most prudish or the most tolerant," have caused some confusion about whether patent offensiveness, is to be measured by the average person's reading of community standards of decency or community standards of tolerance. It seems, however, that if the Court were to make a change in the definition of "patent offensiveness" from indecency to tolerance it would have specifically done so and not done it in an off-hand manner.

Manual Enterprises v. Day Which Defines Patent Offensiveness is a Binding Precedent - As has been outlined, Manual Enterprises defines patent offensiveness as "so offensive on its face as to affront current community standards of decency." This definition has never been specifically overruled by subsequent Supreme Court cases and would appear to be a binding precedent. Marks v. United States, 430 U.S. 188 (1977), made it clear that the three judge plurality in Memoirs was the law and therein established the proposition that, "The holding, of the Court may be viewed as that position taken by those members who concurred in the judgment oil the narrowest grounds." Applying this rule to Manual Enterprises, it would appear that the Court opinion of Justices Harlan and Stewart fits that requirement and is binding precedent. It is also to be observed that the United States Supreme Court in Hamling v. United States, 418 U.S. 87 (1974), treated Manual Enterprises as an authoritative binding precedent when it said:

And as made clear by the opinion of Mr. Justice Harlan in Manual Enterprises the language of 18 U.S.C. 1461 had been prior to the date of our decision in Miller, authoritatively construed in a manner consistent with Miller. The words of Section 1461... connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores... the statute... has always been taken as aimed at obnoxiously debasing portrayals of sex... the statute reaches only indecent material.

To see all of the cases in the Obscenity Law Reporter on "patent offensiveness," you can download a PDF version of this chapter. (597 KB file size)