481 U.S. 497 (1987)
On July 21, 1983, Rockford, Illinois, police detectives purchased certain magazines from the two petitioners, each of whom was an attendant at an adult bookstore.1 Petitioners were subsequently charged separately with the offense of obscenity for the sale of these magazines under the then-current version of the Illinois obscenity statute, Ill. Rev. Stat., ch. 38, ¶ 11-20 (1983).2
Each petitioner moved to dismiss the charges on the ground that the statute violated the First and Fourteenth Amendments.3 They argued, among other things, that the statute was unconstitutional in failing to require that the value question be judged solely on an objective basis as opposed to reference to contemporary community standards.4 Both trial courts rejected this contention and instructed the respective juries to judge whether the material was obscene by determining how it would be viewed by ordinary adults in the whole State of Illinois.5 Both petitioners were found guilty.6
Both petitioners appealed to the Illinois Appellate Court, Second District.7 That court also rejected petitioners’ contention that the issue of value must be determined on an objective basis and not by reference to contemporary community standards.8 The Illinois Supreme Court denied review, and the United States Supreme Court granted certiorari.9
The statute under which petitioners were convicted has since been repealed and replaced by a statute that does not call for the application of community standards to the value question.10
Whether, in a prosecution for the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question under the third prong of the Miller test?11
The third prong of the Miller test asks whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.12 This inquiry is not judged by reference to contemporary community standards.13 The proper inquiry is whether a reasonable person would find such value in the material, taken as a whole.14
No. The established facts show that each trial court instructed the respective juries to determine obscenity by how ordinary adults in the whole State of Illinois would view the magazines.15 The Illinois Appellate Court affirmed those instructions.16 This application of a statewide community standard to the value element directly contravenes the objective reasonable-person standard required by the third prong.17 The value of protected expression does not vary from community to community based on local acceptance.18
The jury may not be instructed to apply community standards when deciding the value question under the third prong of the Miller test.19
Related opinions on this issue
Justice Scalia joined the Court’s opinion with regard to an objective or reasonable person test of serious literary, artistic, political, or scientific value.20 He did so because he thought that approach represented the most faithful assessment of what Miller intended.21 Scalia observed that it is quite impossible to come to an objective assessment of literary or artistic value.22
He noted that many accomplished people have found literature in Dada and art in the replication of a soup can.23 Scalia suggested that the Court would be better advised to adopt the maxim that there is no use litigating about taste.24
Justice Blackmun joined Parts I and II of the Court’s opinion.25 He agreed that the value of a work does not vary from community to community based on the degree of local acceptance it has won.26 Blackmun emphasized that the First Amendment does not permit a majority to dictate to discrete segments of the population the value that may be found in pieces of work.27
He noted that even a minority view among reasonable people that a work has value may protect that work from being judged obscene.28
Justice Stevens dissented from the majority's formulation of the obscenity standard.29 He argued that the reasonable person standard assumes all reasonable persons would resolve the value inquiry in the same way, which is not the case.30 Stevens pointed out that there are many cases in which some reasonable people would find that specific sexually oriented materials have serious artistic, political, literary, or scientific value, while other reasonable people would conclude that they have no such value.31
The Court's formulation does not tell the jury how to decide such cases.32 He concluded that First Amendment protection must not be contingent on this type of subjective determination by a juror creating a reasonable person.33
Whether convictions obtained after an erroneous community-standards instruction on the value element must be reversed outright or may instead be preserved if the error is found harmless beyond a reasonable doubt?34
An instructional error on an element of the offense does not require automatic reversal.35 A reviewing court may affirm if it concludes beyond a reasonable doubt that the jury's verdict was unaffected by the error.36 The court must also determine that no rational juror properly instructed could have found value in the materials.37
Yes. The established facts show that the juries were required to find the magazines utterly without redeeming social value yet were erroneously told to apply a statewide community standard.38 The statute has since been repealed.39 Because the Illinois Appellate Court never conducted harmless-error review, the proper disposition is to vacate and remand rather than reverse outright.40 The reviewing court may then determine whether the evidence establishes guilt beyond a reasonable doubt under the correct objective standard.41
Convictions obtained after an erroneous community-standards instruction on the value element may be preserved if the error is found harmless beyond a reasonable doubt.42
Related opinions on this issue
Justice Brennan joined all but footnote 11 of Justice Stevens’ dissent.43 He reiterated his view that the concept of obscenity cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials.44 This defect also prevents substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and it avoids very costly institutional harms.45
Brennan stated that this defect prevents fair notice to persons who create and distribute sexually oriented materials.46 He concluded that any regulation of such material with respect to consenting adults suffers from this fundamental flaw.47
Justice Stevens dissented from the harmless-error remand.48 He explained that the erroneous instructions denied petitioners a jury determination on one of the critical elements of the crime.49 Stevens argued that this type of omission can never constitute harmless error because it violates the constitutional right to trial by jury.50
He maintained that an appellate court is not free to decide in a criminal case that a jury would have found something that it did not find.51 Stevens further distinguished Rose v. Clark, noting that the error here went to the ultimate fact the juries were required to find rather than a mere superfluous presumption.52