Obscenity
Saliba v. State (Indiana) ~ 1985
Cinema Blue v. State of NC ~ 1990
Matt Epperson
Law & Social Science
2/22/06
A (short) History of Obscenity
- Hicklin v. Regina (England) – Common law rule defining obscenity
as any material that tended to “deprive and corrupt those whose minds
are open to such immoral influences.”
•1868
•Led to banning of works by Balzac, Flaubert, James Joyce, and D.H.
Lawrence based on isolated passages
1957 – Roth v. United States – more strict definition of obscenity:
Material whose “dominant theme taken as a whole appeals to the
prurient interest” to the “average person, applying contemporary
community standards.”
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•Subsequent cases displayed difficulty in applying the “Roth Test,”
particularly the idea of ‘community standards’
History - Miller v. California (1973)
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5-4 ruling passed in U.S. Supreme Court under Chief Justice Warren
Burger: “obscene material is not protected by the First Amendment.”
Further defined three criteria to be used for state regulation:
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The average person, applying contemporary community standards, must find
that the work, taken as a whole, appeals to the prurient interest
The work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by applicable state law; and
The work, taken as a whole, lacks serious literary, artistic, political, or
scientific value
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“Obscene character of materials may be determined by jury based on
viewing of allegedly offensive material, and State need not present an
expert witness or other evidence of community standards”
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“Defendant in an obscenity prosecution is entitled to introduce relevant
and appropriate expert testimony on issue of contemporary community
standards” (6th and 14th Amendment)
Saliba v. State – Facts
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Saliba charged with exhibiting obscene film in his adult bookstore in
Indianapolis
Film depicted three males in homosexual activities
Defense -- Dr. Roderick Bell conducted public opinion poll to
determine community standards in Marion County
State objected to the poll’s validity (with their own expert) and the
trial judge ruled the study inadmissible – Saliba convicted
Appealed – Court ruled that study was relevant, and trial court erred
in excluding the poll, and that study complied with generally
accepted survey techniques (First time Indiana appellate addressed
admissibility of a public opinion poll)
Judgment reversed and cause remanded for a new trial
In assessing Relevancy and Trustworthiness of a Public Opinion Poll,
7 criteria were highlighted (Baumholser v. Amax Coal Co, 1980)
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Poll was conducted by an expert in the field of surveying
The relevant universe was examined
A representative sample was drawn from the relevant universe
The mode of questioning was “correct” (mail, telephone, etc)
The sample, questionnaire, and the interviews were designed in
accordance with generally accepted standards
The data gathered was accurately reported
The data was analyzed in a statistically correct manner
“The adherence to this generally accepted methodology renders the poll’s
results admissible in the form of expert opinion…Any objection, other
than to the lack of foundational requisites, and any testimony challenging
the foundational testimony affect the weight accorded the poll, not its
admissibility”
Bell’s Study:
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Identified “universe” – Marion County
Universe sampled by telephone using random digit dialing
Two-week period - 500 adults were questioned by interviewers from
hired field service
Interviewers were instructed and supervised by Dr. Bell
Questionnaire was prepared using “extensive pretesting” designed
to insure the questions were understood
Subset of sample was recontacted by field supervisor to verify the
interview took place and responses were accurately coded
Subset of this subset was drawn by Bell to reverify
“Results of poll were 98% repeatable within a margin of error of 3%
to 4%”
Bell’s Study
Sample Questions:
”Do you personally think it is acceptable or not acceptable for the
average adult to see any depiction of actual or pretended sexual
activities shown in movies and publications that he or she wants to?
Question 13 (last question):
“Finally, we have used the phrases ‘nudity’ and ‘sexual activities’ in the
interview. What we mean by these terms is total male and/or
female nudity, and sexual intercourse including all kinds of sexual
variation. Is that what you understood we meant, or did you think
we meant something else?”
Objection’s to Bell Study: Dr. Vargus
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Vargus not present during Bell’s testimony, and reviewed survey
over lunch break on day of trial
Said poll potentially generated “30% pseudo-opinion”
Objected to clarity of questions used in questionnaire
Recognized validity of the pretest and cross checks
Alleged sample was skewed because 60% of the subjects were
women
Contended personal interviews would be preferable given the
complexity of the poll
Trial Court’s only problem with the poll was the positioning of
Question 13 – “did not advise the respondent of what level of sexual
explicitness until the end of the poll, and even at that time the
question was not clear”
Bell Study Strengths:
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Proper universe and sampling technique
Good n (500)
Cross checks for inter-rater reliability
Weaknesses:
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Lack of information presented
• Pretest wasn’t explained
• Statistical methods weren’t discussed
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Questions were somewhat vague – difficult to relate answers to
materials in question
Sample= county but Questions= State
Question #13 – This appears to be a clarification question, which
goes to measurement. As such, it should be presented at the
beginning of the survey, to increase reliability of the responses and
internal validity of the study as a whole
A better approach to Bell
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Conduct similar survey as Bell, but be more explicit in
describing the actual movie in question – to clarify
whether “community standards” would find it tolerable.
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To truly attempt to define “community standards,” create
a survey with a progressive intensity scale of subject
material that might be considered obscene:
Kissing....oral sex…….(use your imagination)
Have respondents identify the point at which the
material is no longer tolerable to the community.
– It would be important to establish the validity of this measure,
and as communities constantly change, this measure would not
necessarily have long-term generalizability
State of NC v. Cinema Blue -- Facts
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Adult bookstore indicted on numerous charges of disseminating
obscenity, conspiring to disseminate, and St. John and Peterson
were indicted as accessories before the fact
Trial involved consideration of the obscenity of three videotapes and
one magazine
Defense sought study to define “contemporary community
standards”
Concerns about admissibility – due to NC’s previous exclusion of an
ethnographic study and survey
Experts proposed to conduct a study using the actual materials
alleged to be obscene
Prosecuting Attorney claimed that conducting this study would
subject the defendants and their experts to prosecution
Request for injunction of study was denied
Defendants sought and received affirmative protective relief through
federal district court
State appealed to district court, relief was stayed, study terminated
prematurely
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Defense experts consisted of PhD’s from Ohio State, UNC, UC Santa
Barbara, Duke, and two Michigan attorneys – with accumulated
expertise in issues of obscenity
Expertise was stipulated, and results of study were described as
“trustworthy,” and “using state-of-the-art procedures”
However, study was excluded in entirety: “This evidence would be of
no assistance to the trier of fact, and any probative value would be
outweighed by its prejudice”
Almost entire defense (including comparable materials) were
excluded, three of the videos were found to be obscene, and one
video and magazine were found not to be obscene
Petitioners were sentenced to a total of six years each, and Cinema
Blue was fined $150,000
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Appealed – NC court of appeals affirmed convictions without
elaborating on constitutional issues raised
NC Supreme Court dismissed notice of appeal and denied the
Petition for Discretionary Review, without comment
Appealed to US Supreme Court, which accepted the case and the
study
US Supreme Court – “This case presents this Court with an ideal
opportunity to address this highly confused area of the law.”
(admissibility of survey and other expert testimony re: obscenity)
“Pursuant to the concerns addressed by appellate decisions,
Defendants’ experts here conducted landmark research into the
area of the obscenity test, specifically addressed all methodological
and legal issues, and the trial court still, in a conclusory fashion,
excluded the totality of this testimony and evidence. If a study
utilizing the actual materials alleged to be obscene is not admissible
in a criminal prosecution, it would appear that nothing is”
Cinema Blue – Re-examination of Miller
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Petitioners had submitted pretrial motions challenging its
constitutionality on vagueness & overbreadth grounds – denied
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US Supreme Court
• “Lack of sufficient constitutional safeguards”
• “nebulous and subjective nature of Miller test”
• Miller assumes “that a trier of fact is somehow magically imbued with
knowledge of the contemporary community standards”
• “Constitutionally overbroad”
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Although questioned, Miller left intact
The Film Evaluation Study
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An experimental model using the films and magazine from the case
Universe – Mecklenburg County
Sampling – Random digit dialing – Recruit within quotas
Recruiting to possibly view a movie and fill out questionnaire, possibly view
adult, X-rated sexually explicit films
Phone interview was attempted whether subject agreed to view film or not
– this would become a comparison group to evaluate selection bias
129 ended up viewing films – 110 watched one of five sexually explicit films,
and 19 watched a nonexplicit film (control group)
Experimental subjects were given pre-film and post-film questionnaires, and
later pre and post- magazine questionnaires
Pre and post-film comparisons made with experimental and control group,
as well as selection and mixture modeling with comparison group to
address self-selection bias
Addressed potential test-effect bias
Results – majority of respondents felt that videos and magazine did not
appeal to prurient interest, nor did it go beyond community standards
Film Evaluation Study Strengths:
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Experimental method – viewed as gold standard
• Pre & Post-Test
• Control Group
• Random assignment
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Proper Universe
Sampling – established comparison group to deal with selection bias
Measurement – Questions were much more explicit and descriptive than
Saliba – used scale
Measured testing effects using control group
Used actual movies and magazine in question
Published study in peer-reviewed journals with explicit details of design
and methods
Demographic Breakdown of participation levels, and questionnaire
results
Weaknesses:
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Small control group (n=19)
Did study truly address self-selection bias?
• Even with comparison techniques, it may be difficult for the average
reader to believe that there is not something significantly different
about the opinions of this experimental group, who agreed over the
phone to show up for a 2 ½ hour session in which they would possibly
view an X-rated film