Obscenity

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Obscenity

• Stuart Anderson

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People v. Nelson

• Nelson is employee of adult book store which
  shows films of sexual acts
• Nelson is charged with criminal obscenity under
  Illinois Law

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Criminal Obscenity
Criminal obscenity, here, exhibiting obscene
films Movie is obscene if (1) the average
person, applying contemporary adult community
standards, would find that it appeals to the
prurient interest and (2) depicts or describes,
in a patently offensive way sexual acts or
sadomasochistic sexual acts and (3) it lacks
serious literary, artistic, political or
scientific value. (c) Interpretation of
Evidence. Evidence shall be admissible to show
(4) The degree, if any, of public acceptance of
the material in this State (5) Appeal to
prurient interest, or absence thereof, in
advertising or other promotion of the
material The State has the burden of proving
obscenity, but is not required to produce any
evidence of community standards.
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• Nelson sought to enter a survey by Dr. Bell to
  show that a majority of Illinoisans found
  depictions of sexual activity acceptable
• Dr. Bells expert testimony there was no
  community standard concerning the depiction of
  sexual activity in certain circumstances
• Prosecutor objected to the expert testimony,
  since Dr. Bells analysis of the inconclusive
  survey is an invasion of the jurys fact-finding
  province (?)

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• The Trial Court
• The survey evidence and the expert analysis would
  invade the jurys province.
• The Appellate Court
• Exclusion was an error
• Validity There were no attacks on the
  methodology or partiality
• Relevance It is relevant directly, under the
  statutes allowed evidence (c)(4). The evidence
  isnt dispositive because it didnt show the
  movies in question, but it is relevant to whether
  the majority of Illinoisans find sexually
  explicit films acceptable.
• The error was prejudicial because it is a strong
  case for the defendant. the admissible evidence
  only testified to what else was available in
  other bookstores, whereas the survey demonstrates
  grades of acceptability.
• The exclusion of the talk of consensus is
  proper because it is a social science concept
  which may be foreign to the jury, it is
  distracting, and the results are clear enough for
  the jury to interpret themselves.

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The Survey Purpose of the survey to find the
community standards in Illinois relating to
obscenity for the defense law firm, not for the
particular trial. Target Adults in
Illinois Sample 770 people chosen randomly, out
of 77 areas of roughly equal population. Reliabil
ity 99 repeatable within a confidence interval
3.5 Method Interviewers conducted the
interview with questionnaires (independently
verified). Dr. Bells Professional opinion 75
of the population have to agree on a proposition
for it to be a consensus. Without a consensus
as to whether these depictions are acceptable,
there is no community standard.
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QUESTION Is it your opinion that in recent
years the standards in Illinois have changed so
that depictions of nudity and sexual activities
in movies and publications available only to
adults are now more acceptable or
less acceptable? More acceptable 60.5 less
acceptable 25.7 neither 7.8 don't know 4.4
no answer 1.3 other .2. QUESTION Do you
think it is acceptable or not acceptable in
Illinois 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? Acceptable 58.1 not
acceptable 33.2 neither 5.2 no answer
3.5. GENERAL QUESTION In your opinion, is it
now all right or not all right in the State of
Illinois for QUESTION Adults who want to view
them, to purchase magazines that depict nudity
and actual or pretended sexual activities? All
right 63.1 not all right 31.0 neither 2.2
no answer 3.6.
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QUESTION Movie theaters, restricting attendance
to adults only, to show films that depict nudity
and actual or pretended sexual activities for
adults who want to attend? All right 59.2 not
all right 32.1 neither 4.3 no answer
4.4. QUESTION Bookstores that restrict
admittance to adults only to sell publications
and movies? All right 54.8 not all right 37.3
neither 4.0 no QUESTION Arcades that
restrict admittance to adults only to show
films? All right 48.7 not all right 42.1
neither 3.5 no answer 5.7. QUESTION Adults
who want to, in the privacy of their homes, see
movies and publications? All right 67.4 not all
right 25.7 neither 2.9 no answer
4.0. QUESTION 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 variations. Is that
what you understood we meant, or did you think we
meant something else? Understood 93.4 something
else 3.0 neither 1.8 no answer 1.8.
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Usefulness of the Survey

• It was Methodologically valid by the courts
  analysis
• Accepted by the court as evidence as to the
  community standards concerning the films if a
  majority (58.1 presumably) find sexually films
  acceptable, then the majority does not find them
  patently offensive
• Its more relevant than the investigation into
  the availability of similar films in other
  stores.
• It provides an alternative to 12 Rockford natives
  as a means of finding a state-wide standard
• It does not address the question of patently
  offensivethat is an inference not by the
  pollster

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Validity of the Survey

• Dr. Bells own conclusion that there is no
  community standard
• Sample Population to whole
• Enough old people? How were the surveys
  administered?
• Who is most unlikely to take a survey like this?
• Test effect Reactivity
• Desirability of a Control?
• Not a causal analysis
• Gauge value of the 58 acceptable
  findingespecially since Dr. Bell cannot testify
  to explain
• Disparity between description the mode of
  questioning and the subject-film itself
• False dichotomy of acceptable/not acceptable

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Saliba v. State

• Saliba is owner of adult book store who showed a
  film of three males engaged in homosexual
  activity
• Saliba is charged with exhibiting an obscene film
  under Indiana Law

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Obscenity in Indiana
A person who exhibits obscene matter Movie is
obscene if (1) the average person, applying
contemporary community standards, finds that the
dominant theme of the move or performance, taken
as a whole, appeals to the prurient interest in
sex (2) the movie depicts in a patently
offensive way, sexual conduct and (3) the movie
lacks serious artistic, political, or scientific
value. The State has the burden of proving
obscenity, but is not required to produce any
evidence of community standards
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• Saliba sought to enter a survey by Dr. Bell
  concerning the community standards in Marion
  county towards sexually explicit material
• The results of the survey were not discussed on
  Appeal. The survey was denied on the grounds of
  methodology and relevancy without a consideration
  of the results.

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The Trial Court Excluded the survey (1) it was
relevant if valid because the community
determines whether or not it is a crime (2)
validity Question 13 should have been at the
beginningafter Dr. Vargus and Dr. Bell testified
that he had pre-tested the surveyQuestion 13
should have been at the beginning, and other
issues raised by Dr. Vargus The error with
Question 13 was in leaving the level of sexual
explicitness to the end
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• The Appellate Court
• Exclusion was an error
• Relevance
• 2 levels of relevance
• Community standards in general expert witness
  testimony based on a public opinion poll is
  uniquely suited to a determination of community
  standards
• danger of relying on a jury to make such a
  subjective judgment about the opinions of the
  whole community.
• (2) Community standards regarding the film Q13
  (and pretests) defined nudity and sexual activity
  as total male and/or female nudity and sexual
  intercourse as including all kinds of sexual
  variation, it gauges the relevant attitudes
• Relevant, but not dispositive because the final
  question is the movie itself
• Trustworthiness (validity) methodological
  question
• Generally accepted surveying technique (2)
  statistically correct methods
• This leads to six foundationsomission of one
  justifies exclusion, other objections only affect
  the weight of an admitted survey

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The Survey Purpose of the survey to find the
community standards in Marion County relating to
sexually explicit movies, done for the
trial Target Adults in Marion county Sample
500 people selected by random digit
dialing Reliability 98 repeatable within a
margin of error of 3 to 4 Method Telephone
survey Pretest extensive
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The foundations

• (1) expert pollster
• (2) relevant universe examined
• (3) representative sample
• (4) correct mode of questioning
• (5) study design generally acceptable
• (6) accurate report of data
• (7) correct statistical analysis
• Dr. Vargus critique (based on assumptions about
  Dr. Bells method)
• Clarity of the questions, ambiguity of the
  pretest
• Personal interviews would have been better
• 60 of interviewees were women
• 30 psuedo-Opinion (if Bell didnt pretest)
• The Appellate court found Dr. Vargus critique
  merely an attack on technical inadequacies
  both Dr. Bell and Dr. Vargus were qualified, and
  Dr. Bells method was generally accepted, if not
  ideal

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6. In your opinion, have standards in Indiana
changed in recent years so that depictions of
nudity and sexual activities in movies and
publications available only to adults are now
more acceptable or less acceptable, or haven't
they changed much? 7. 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? In your
opinion, is it now all right or not all right in
the state of Indiana for 8. adults who want to
view them, to purchase magazines that show nudity
and actual or pretended sexual activities? 9.
movie theaters, restricting attendance to adults
only, to show films that depict nudity and actual
or pretended sexual activities for adults who
want to attend? 10. bookstores that restrict
admittance to adults to sell publications and
movies depicting nudity and actual or pretended
sexual activities for adults who want to go
inside and buy them?
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11. arcades that restrict admittance to adults
only to show films that depict nudity and actual
or pretended sexual activities? 12. adults who
want to, in the privacy of their homes, to see
movies and publications that depict nudity and
actual or pretended sexual activities? 13.
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?
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Problems Sample 60 women population of Marion
county as a wholeby gender, race, religion,
etc.?, phone as sample source, self-selection of
respondents Questions Abstractness of the
survey, Specifically homosexual?, Telephone
interview against film, lack of perspective, test
effect and reactivity Science of the
Court Experts as experts? Accepting Dr. Vargus
testimony, but dismissing it not because his
analysis was substantially based on assumptions
but because his disagreement was technical while
Dr. Bells methods were generally
acceptedaccording to whom? Distinction between
numbers and testimony Dissent irrelevant because
acceptable/unacceptable does not address
community standards regarding prurient interest
in sex and because it did not address the film in
particular and because it is generally vague.