Pope v. Illinois

PETITIONER: Richard Pope and Charles Morrison
LOCATION: Adult Book Store

DOCKET NO.: 85-1973
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: State appellate court

CITATION: 481 US 497 (1987)
ARGUED: Feb 24, 1987
DECIDED: May 04, 1987

Glenn A. Stanko - on behalf of the Petitioners
Sally Louise Dilgart - on behalf of the Respondent

Facts of the case

In 1973, the Supreme Court decided Miller v. California and established a three-prong test for determining whether material is obscene. The test asks whether the material in question appeals to a prurient interest, describes sexual conduct in a patently offensive manner, and whether the work as a whole lacks “serious literary, artistic, political, or scientific value.”

On July 21, 1983, police detectives in Rockford, Illinois, purchased magazines from Richard Pope and Charles Morrison, both of whom were attendants in an adult bookstore. Pope and Morrison were subsquently charged under Illinois’ obscenity statute for the sale of those magazines. They each moved to dismiss the charges and argued that the statute was unconstitutional under the First and Fourteenth Amendments because it did not require that the value of the work in question be judged on an objective basis but instead allowed for judgment based on contemporary community standards. The trial courts denied the motions and instructed the juries to determine whether the material would be viewed as obscene by adults in Illinois. Pope and Morrison appealed, and the Illinois Appellate Court, Second District, affirmed the ruling of the lower courts. The Illinois Supreme Court denied review.



May a jury be instructed to apply community standards regarding the value of a work to satisfy the third prong of the obscenity test established by the Court in Miller v. California?

Media for Pope v. Illinois

Audio Transcription for Oral Argument - February 24, 1987 in Pope v. Illinois

William H. Rehnquist:

We will hear arguments next in No. 85-1973, Pope against Illinois.

Mr. Stanko, you may proceed whenever you're ready.

Glenn A. Stanko:

Mr. Chief Justice, and may it please the Court:

The constitutional test for obscenity which is applicable to the states through the First and the Fourteenth Amendments contains three parts, each part of which must exist separately and independently in order for a work to be found obscene.

The third part of that three-part test, the third component, is a value consideration.

And that value consideration has been specifically crafted to protect works having value from hostile majoritarian sentiment.

Richard Pope and Charles Morrison were both tried under a State of Illinois statute which allowed the views of a majority to determine the question of whether the work was utterly without redeeming social value.

In short, community standards were applied to the value consideration.

That Illinois obscenity statute is unconstitutional in each and every possible application, no matter to whom applied or to what applied, whether it's a retailer, a distributor, a publisher, or, as in this case, a clerk in an adult bookstore, or whether it's applied to a--

Byron R. White:

Well, we're really just talking about this particular case.

This statute has been replaced, hasn't it?

Glenn A. Stanko:

--That's correct, Your Honor.

Subsequent to the convictions in this case, the State of Illinois passed a new obscenity statute.

I think it's instructive to note that the obscenity statute put into place by the State of Illinois legislature conforms precisely to the construction for which we argue in this case.

And explicitly, it puts community standards into the first element of the test, which is the patently offensive part of the test.

It includes community standards in the second element, which is the... excuse me, the first is prurient interest; the second is patently offensive.

And it omits community standards from the value determination.

So what we have is the State of Illinois arguing for a construction of the statute which is really consistent... inconsistent with what it has on the books right now.

Antonin Scalia:

Well, Mr. Stanko, I don't understand your point when you say that the issue is whether, you know, the majority can run roughshod over... it really isn't an issue of whether the majority can or not.

Your complaint is that it has to be the majority that does it, and that you can't use community standards.

You're perfectly willing to have literary works banned because the majority considers that they have no literary merit.

Glenn A. Stanko:

That's not true at all.

Antonin Scalia:

All you're insisting is that it be a nationwide standard and not a community standard.

It's just a question of how big the majority has to be, isn't it?

Glenn A. Stanko:

That's not true, Your Honor.

Antonin Scalia:

Oh, then I don't understand your--

Glenn A. Stanko:

I'm not arguing for a standard.

And I think it's improper to characterize it as a standard.

The value determination is a focus.

The jury should look at value and determine it, just as it determines similar elements in any other criminal case.