Obscenity

1
Obscenity

• Cases
• People v Nelson, 88 Ill.App.3d 196, 43 Ill.Dec.
  476, 410 N.E. 2d 476
• U.S. v Pryba, 678 F.Supp. 1225 (1985)

2
U.S. v Pryba Facts

• Involved a 12 count indictment against 1
  corporation and 3 individuals for racketeering in
  connection with the interstate sale of obscene
  videos and magazines
• Brief description of some of the 4 videos and 9
  magazines discussed at trial (She Male
  Confidential , Wet Shots),  The magazines were
  mostly sadomasochistic (one maybe involved what
  the court calls juveniles)

3
The Miller Test

• The legal rule for obscenity comes from the
  SCOTUS Miller case which says material is obscene
  where the fact finder finds 1) the average
  person would find the work taken as a whole
  appeals to prurient interest, 2) the work
  describes in a patently offensive way sexual
  conduct specifically defined and, 3) the work,
  taken as a whole, lacks serious literary
  artistic, political, or scientific value. (see
  Westlaw Background)

4
Issue of Admissibility

• Womack Test
• says Dr. Jay would have to show the material he
  focused on in his study was comparable to that
  involved in the case.

• Various Articles of Merchandise Rule
•   a poll must ask questions regarding the
  material involved in the case or material
  clearly akin to them (1229).

5
Dr. McConahays Public Opinon Poll

• The Poll
• 1) whether he thought the that the portrayal of
  nudity and sex in materials available to adults
  only had become more or less acceptable in recent
  years 2) whether he agreed or disagreed with the
  statement that adults who want to should be able
  to obtain and view materials depicting nudity
  and sex 3) whether he believed that he should be
  able to buy or rent materials depicting nudity
  and sex, and 4) whether he agreed or disagreed
  with the statement that adults who want to should
  not be able to buy or rent materials depicting
  sex and nudity.

• Courts Response
• whatever the defendants poll may show about the
  communitys desire to overturn the obscenity
  lawsit is not probative on whether the charged
  materials enjoy community acceptance

6
Dr. Scotts Ethnography Test

•      Dr. Scott wanted to study ethnography he
  referred to this as the study of what is going
  on in the community (1232)
•      The process Dr. Scott used was to over a
  period of 8 days (1232)
•         i.     View the material
•           ii.      Visit 80-90 bookstores (69 of
  which sell adult magazines) as well as 75 video
  stores (43 of which sell adult videos)
•          iii.      Talks to the owners and
  customers of those locations
•          iv.      Calls newspaper editors and
  find out about letters to the editor concerning
  these issues

7
Weaknesses

• Weaknesses sample bias (he went mostly to places
  where those type of books/magazines were sold/ as
  for news papers, they are also unrepresentative),
  unethical (he was chauffeured around by an
  employee of one of the defendants!), didnt
  investigate the question presented (both in terms
  of the subject and legal matters).

8
Lower Court Finds

• Dr. Scott is simply not qualified on this issue
  (1232)
• It is a prejudicial study (mainly because it
  prevents the U.S. from cross examining the
  interviewees who have been confused by Dr. Scott)
  (1232)
• The study is prejudicial/misleading to the jury.
  (1232)
• His testimony has little or no probative value
  (he only spent 8 days there, only visited the
  stores, etc.) (1235)

9
The link to the legal question

• Overall, the legal rules of admissibility
  recognize the principle that the research
  introduced should actually relate to the question
  of whether or not the material involved is
  legally obscene.

10
Ways to do a better study

• The sampling could have been done through a
  multistage cluster sample first he could have
  sampled towns in the district/ then blocks/ then
  households/ then people in the households/ then
  people in the households.
• Remember the benefit here is he still wouldnt
  need a listing of all individuals in the
  district.
• Remember maximizing the number of clusters
  selected while decreasing the selected elements
  in the is the solution to the problem that 1)
  the clusters will rep. the population of clusters
  only within a range of sampling error and 2)
  that the sample of elements in a cluster will
  rep. all the elements in the cluster only within
  a range of sampling error.
• Remember you can refine it further with
  stratification/ weighting

11
People v Nelson Facts

•         an undercover officer goes into an Ill.
  adult film store to view what is going on/what is
  being sold
•        defendant (stores employee) was found
  guilty in a jury trial of criminal obscenity
•        defendant says he was hurt when the lower
  court refused to admit the results of a poll

12
The Poll

• a.       target adult population of Illinois
• b.      sample 770 adults
• c.       Method the state of Illinois was
  divided into 77 areas that are roughly equal in
  population. A random selection technique was
  then used to give people questionnaires. Finally,
  the interviews as well as the questionnaire
  answers were independently verified.
• d.      The results were found to be 99
  repeatable and had a 3 ½ confidence interval
• e.       75 is what was considered to be a
  consensus
• f.        Findings Since no 75 agreement was
  found, the researcher claimed there was in fact
  no community standard.

13
Courts Interpretation

• The court recognized that while the survey did
  not deal with the particular movies here, it did
  establish that the majority of Illinois adults
  found it acceptable to view, buy or read such
  materials as contained in the movies. (198-199).
  

14
How Can The Survey be Improved?

• In your opinion is it all right or not all right
  in the State of Illinois for Adults who want to
  view them, to purchase magazines that depict
  nudity and actual pretended sexual activities?
• vs.
• In your opinion is it all right or not all right
  in the State of Illinois for Adults who want to
  view them, to purchase a magazine that depicts 14
  acts of oral sex?
• Can we reach this via Coding/Content analysis?

15
The legal link

• Notice how each of the cases handled the idea of
  linking the social research designs to the legal
  issue in a different way.
• Which was better in the end?
• Does letting in valid research that isnt totally
  relevant still useful?