481 U. S. 497
May 4, 1987
Pope was charged with selling obscene magazines. At trial, the jury was instructed to find him guilty if the average Illinois citizen would find the magazines without any literary or artistic merit. The jury found him guilty, but he appealed, arguing that the correct legal standard under Supreme Court precedent was whether a reasonable person, as opposed to an average local citizen, would find that the magazine lacked any redeeming merit. On this basis, Pope wanted his conviction overturned.
The Court ruled unanimously that the wrong standard had been used, but also ruled 5-4 that his conviction need not be overturned, and could be subjected to a harmless error analysis. White wrote for the majority, first making clear that the reasonable person test that was required by precedent would allow for redeeming merit to be found even if only a minority of the population would discern such merit. Moving on to harmless error, White said that remanding for that analysis was appropriate when the error made did not make the trial fundamentally unfair. He contended that a judge would be able to tell based on the evidence presented if a rational jury would still have convicted based on the correct standard.
Blackmun disagreed with the harmless error section, but thought that White’s description of the legal standard for obscenity was all right. Brennan wrote to say that no regulation of the sale of obscenity to adults was Constitutional in his view due to the impossibility of knowing what is and is not permitted. Stevens, joined by Brennan, Marshall, and Blackmun, showed that Court precedents mandated that convictions must be overturned when the error has to do with an element of a crime that must be proven beyond reasonable doubt. Then, in a section not joined by Blackmun, he argued that the reasonable person standard was vague, standardless, and completely unworkable. In view of the difficulty of defining unprotected obscenity, Stevens thought that it could not be Constitutionally criminalized.
Scalia filed a fascinating concurrence. He explained that he had joined the majority out of faithfulness to precedent, but harbored doubts about whether the reasonable person standard meant anything. “I must note, however, that, in my view, it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can.” Haha, take that Duchamp and Warhol!!!
I keep in mind what Jesus said in Mark 9:42. “Whoever causes one of these little ones who believe in Me to sin, it would be better for him if a great millstone were hung around his neck and he were thrown into the sea.” In my opinion, the Supreme Court was horribly wrong to to allow obscenity so long as it retained some ‘redeeming’ literary or artistic ‘merit.’ Sexual sin is sexual sin, no matter what literary qualities the work possesses. Furthermore, it’s often true that the non-obscene parts of such works are also quite evil. To give an example, Ulysses getting banned for a decade because of the masturbation scene was a bit like Al Capone going to jail for tax evasion.