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Written by Jillian Von Gunten with Walter Huber, published on January 1, 2009 , last updated on February 18, 2024

Pinkus v. United States (1978)

The Supreme Court decision in Pinkus v. United States, 463 U.S. 293 (1978), centered on the adequacy of jury instructions in an obscenity case relating to contemporary community standards. The instructions were found to be in violation of the due process clause of the Fourteenth Amendment.


Pinkus convicted for mailing obscenity

William Pinkus had been convicted by a federal trial court for mailing obscene materials in the form of advertisements for obscene magazines and videos. Because the materials were mailed prior to the Court’s decision in Miller v. California (1973), he was charged under the standards set by Roth v. United States (1957) and Memoirs v. Massachusetts (1966).


Pinkus challenged the jury instructions

Pinkus challenged his conviction based on what he argued to be improper jury instructions. Specifically, he raised four challenges to the instructions.


  • Children were to be included as part of the community to determine community standards;
  • So-called “sensitive persons” were to be included as part of the community to determine community standards;
  • Members of “a deviant sexual group” were to be included as part of the community to determine community standards;
  • And the consideration of “pandering” (i.e., promotional or advertising) materials were allowed in determining whether the materials were intended to appeal to prurient interests.

Court thought children should not have been part of the community

The Supreme Court reversed the decision of the lower court and remanded the case for retrial. The Court saw no constitutional violations concerning “sensitive persons,” “members of a deviant sexual group,” and “pandering” but found error in the jury instruction to consider children when determining community standards. In delivering the opinion of the Court, Chief Justice Warren E. Burger wrote, “[W]e . . . make clear that children are not to be included for these purposes as part of the ‘community’ as that term relates to ‘obscene materials.’ ”


In considering “sensitive persons,” Burger stated, “The vice is in focusing upon the most susceptible or sensitive members when judging the obscenity of materials, not in including them along with all others in the community.” Similarly, the Court dismissed the petitioner’s arguments for instructions concerning deviant groups and instructions concerning pandering, both of which focused on the question of whether these publications and the promotional materials were intended to appeal to “prurient interests.”


In dissent, Justice Lewis F. Powell Jr. argued that the jury instruction as pertained to the inclusion of children was “harmless error” and likely had no discernable impact on the jury’s decision. For that reason, Powell felt that overturning the lower court’s ruling was unwarranted.


This article was originally published in 2009. Jillian Von Gunten was a student at Muskingum University. Walter Huber is a Professor and Chair of the Department of Political Science and Criminal Justice at Muskingum University. He serves as the Director of the University’s Center for Regional Planning and Development.


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