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Written by Judith Haydel, last updated on September 19, 2023

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In Pope v. Illinois, 481 U.S. 497 (1987), the Supreme Court ruled that in applying the third, or value question, prong of the three-part obscenity test articulated in Miller v. California (1973) to a prosecution for the sale of allegedly obscene materials, the proper standard of review is whether a reasonable person would consider that the work “taken as a whole, lacks serous literary, artistic, political, or scientific value.”


Pope case confirmed that third prong of Miller test warrants higher review standard

Miller and Smith v. United States (1977) specify that the first and second prongs of the Miller test are factual issues for the jury to decide, applying contemporary community standards. In Pope, the Court confirmed that the third prong warrants a higher standard of review, the objective or reasonable person test, and should not be based on contemporary community standards.


Defendants argued that jury instructions using “contemporary community standards” violated First Amendment

The case arose in 1983, when two police officers entered an adult bookstore in Rockford, Illinois, and bought three magazines from bookstore employees Richard Pope and Michael Morrison. After the sale, Pope and Morrison were arrested and charged with violating Illinois’s obscenity statute. At their separate trials, each argued in part that the Illinois statute under which they were charged violated the First and Fourteenth Amendments because it did not require that the value question be judged on a “reasonable person” basis.


The jury instructions in both trials advised that the obscenity determination should be made using the community standards rule regarding the third prong of the Miller test. They were found guilty, and their convictions were upheld on appeal. They appealed to the Supreme Court.


Supreme Court said third prong of Miller test should be based on what value a reasonable person would give the work

Justice Byron R. White wrote the majority opinion, in which Chief Justice William H. Rehnquist and Justices Lewis F. Powell, Sandra Day O’Connor, and Antonin Scalia joined. Justice Scalia also wrote a concurring opinion. They agreed that the proper standard for interpreting the third prong of the Miller test should be based on what a reasonable person might consider to be the value of the work. Justice Harry A. Blackmun concurred in the parts of the majority opinion addressing the reasonable person standard.


Dissenters thought clarifying obscenity was unfaithful to the First Amendment

Justices William J. Brennan Jr., John Paul Stevens, and Thurgood Marshall dissented. In his dissent Justice Brennan reiterated his opinion that obscenity cannot be defined specifically enough for First Amendment purposes and should not be regulated with respect to consenting adults. Justice Stevens, in a dissent joined by Justice Marshall, wrote that the majority’s attempt to clarify the constitutional definition of obscenity was unfaithful to the First Amendment and that Illinois should not be able to criminalize the sale of magazines to consenting adults.


Court disagreed on harmless error analysis

Because the Illinois appellate court did not consider harmless error, the Court did not decide whether the jury instructions amounted to it; however, they disagreed on whether a harmless error analysis was appropriate in this case. The majority agreed that the jury instructions were incorrect but ruled the convictions should stand if the appellate court concluded that no rational juror, if properly instructed, could find “value” in the allegedly obscene magazines. In his dissent, Justice Blackmun opined that the Court’s harmless error analysis was inappropriate in this case. Justices Stevens and Marshall believed that the jury instructions were not harmless error.


This article was originally published in 2009. Dr. Judith Ann Haydel (1945-2007) was a political science professor at the University of Louisiana-Lafayette and McNeese State University.


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