In Roth v. United States (1957), the Supreme Court rejected the Hicklin test and ruled that the appropriate test for obscenity is "whether to the average person, applying
contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest." Writing for the Court, Justice Brennan defined obscenity as "material which deals with sex in a manner appealing to prurient interest . . . having a tendency to excite lustful thoughts [or] as [a] shameful and morbid interest in sex."
See Emphasis, which I supplied. Thus, the local jury is exactly the body to determine what is obscene -- community standards. "The state didn't prove" -- careful, you are falling into the trap the defense created. The defense made its case and put up an expert. The prosecution pointed to the videotape cover (see above) and let the jury decide.
For most of us, there is little argument this is obscenity/porn. While I personally LIKE porn, I recognize the community's right to regulate it.
The "comics are for kids" bit by the state is meant to move the jury. It is not the appropriate legal on-point argument, but then closing arguments to juries are rarely about the pointy-headed legal minutae. They are about broader concepts. Plus, again, careful who gives you your info. Just because this is how the defense presented the prosecution's case does not necessarily mean it is ALL the prosecution said in its closing to the jury.
And, the Supreme Court decides on pure legalities, not on the effectiveness of closing arguments. The Supreme Court looked at the facts, saw that the jury decided it was obscene (fulfilling the community standard test), noted that local laws regulating obscenity are allowed to be passed under constitutional law, and let it stand.
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Originally posted by Rokenn:
Castillo, who has continued to work at the shop, says the matter has changed the way Keith's does business. The store stopped carrying anything that might be considered X-rated, and now carries only R-rated comics. They are kept in their own 18-and-over section, just as Demon Beast Invasion had been.
"Considering that there's a whole Catch-22 in this, it's difficult to figure what's offensive and what is not," says shop owner Keith Colvin. "Until a jury pronounces something obscene, it's not obscene."
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It doesn't take a jury to tell me or you this is obscene. If there was a local law limiting the sale of obscenity, and no jury had yet ruled as to what is "obscene," would you really sale this videotape, thinking it was not obscene? [img]graemlins/1ponder.gif[/img] To quote John Stossel: Give Me a Break!
Besides, what he has done is exactly what should have been done to begin with -- he has simply conformed to local law.
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"That's the chilling effect people talk about," Brownstein says. "Their right to sell, and the right of people to buy, some legally protected material has been chilled."
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Two mistakes here. (1.) The "chilling effect" is misapplied -- it only applies to material protected by the 1st Amendment -- obscenity by its very definition does not enjoy that protection. (2.) Ergo, "some legally protected has been chilled" is also incorrect -- it was never legally protected.