pope illinois argued february decided may miller california third value prong tripartite test judging whether material obscene requires trier fact determine whether work taken whole lacks serious literary artistic political scientific value petitioners attendants adult bookstores sold certain magazines police separately charged offense obscenity illinois law trial courts instructed respective juries convict must find inter alia magazines without value juries also instructed judge whether material obscene determining viewed ordinary adults whole state illinois state appellate affirmed petitioners convictions rejecting contention value issue must determined solely objective basis reference contemporary community standards held prosecution sale allegedly obscene materials jury instructed apply community standards deciding value question first second prongs miller test appeal prurient interest patent offensiveness decided reference contemporary community standards ideas work represents need obtain majority approval merit protection value work vary community community based degree local acceptance proper inquiry whether ordinary member given community find serious value allegedly obscene material whether reasonable person find value material taken whole instruction issue therefore violated first fourteenth amendments pp whether petitioners convictions reversed outright subject salvage erroneous instruction constituted harmless error decided since state appellate considered issue rose clark absence error renders trial fundamentally unfair conviction affirmed reviewing find record developed trial established guilt beyond reasonable doubt since jurors precluded considering value question petitioners convictions stand despite erroneous community standards instruction appellate concludes rational juror properly instructed find value magazines petitioners sold pp white delivered opinion rehnquist powell scalia joined parts ii blackmun joined scalia filed concurring opinion post blackmun filed opinion concurring part dissenting part post brennan filed dissenting opinion post stevens filed dissenting opinion marshall joined brennan joined part blackmun joined post glenn stanko argued cause petitioners briefs steven beckett sally louise dilgart assistant attorney general illinois argued cause respondent brief neil hartigan attorney general roma stewart solicitor general mark rotert jack donatelli assistant attorneys general briefs amici curiae urging reversal filed american booksellers association et al michael bamberger bruce rich roger funk maxwell lillienstein american civil liberties union et al bruce ennis david ogden harvey grossman jane whicher jack novik david goldstein volunteer lawyers arts irwin karp fred koenigsberg edward cooper james clancy filed brief city santa ana california amicus curiae justice white delivered opinion miller california set tripartite test judging whether material obscene third prong miller test requires trier fact determine whether work taken whole lacks serious literary artistic political scientific value issue case whether prosecution sale allegedly obscene materials jury may instructed apply community standards deciding value question july rockford illinois police detectives purchased certain magazines two petitioners attendant adult bookstore petitioners subsequently charged separately offense obscenity sale magazines petitioner moved dismiss charges ground version illinois obscenity statute rev ch violated first fourteenth amendments constitution petitioners argued among things statute unconstitutional failing require value question judged solely objective basis opposed reference sic contemporary community standards app trial courts rejected contention instructed respective juries judge whether material obscene determining viewed ordinary adults whole state illinois petitioners found guilty appealed illinois appellate second district also rejected petitioners contention issue value must determined objective basis reference contemporary community standards app app illinois denied review granted certiorari ii suggestion cases question value allegedly obscene work determined reference community standards indeed cases contrary smith held federal prosecution mailing obscene materials first second prongs miller test appeal prurient interest patent offensiveness issues fact jury determine applying contemporary community standards observed unlike prurient appeal patent offensiveness iterary artistic political scientific value discussed miller terms contemporary community standards citing schauer law obscenity comment meant point oversight miller opinion call attention approve deliberate choice miller careful point first amendment protects works taken whole serious literary artistic political scientific value regardless whether government majority people approve ideas works represent ideas work represents need obtain majority approval merit protection neither insofar first amendment concerned value work vary community community based degree local acceptance proper inquiry whether ordinary member given community find serious literary artistic political scientific value allegedly obscene material whether reasonable person find value material taken whole instruction issue case therefore unconstitutional iii question remains whether convictions reversed outright subject salvage erroneous instruction found harmless error petitioners contend statute invalid face convictions must necessarily reversed understand state allowed preserve conviction law poses threat first amendment values statute petitioners convicted longer books repealed replaced statute call application community standards value question facial invalidation repealed statute serve purpose preventing future prosecutions constitutionally defective standard secretary state maryland joseph munson facially invalidate repealed statute reverse petitioners convictions petitioners still retried statute provided erroneous instruction repeated petitioners plausibly claim repealed statute failed give notice sale obscene materials prosecuted see dombrowski pfister photographs circumstances see reason require retrial said beyond reasonable doubt jury verdict case affected erroneous instruction situation comparable rose clark rose jury murder trial incorrectly instructed element malice yet held inquiry appropriate explained absence error renders trial fundamentally unfair denial right counsel trial financially interested judge conviction affirmed reviewing find record developed trial established guilt beyond reasonable doubt error rose entirely preclude jury considering element malice fact jury conceivably impermissible presumption mind considered element malice reason retry defendant facts jury necessarily found established guilt beyond reasonable doubt said jury instructed presume malice predicate facts still must find existence facts beyond reasonable doubt connecticut johnson powell dissenting many cases predicate facts conclusively establish intent rational jury find defendant committed relevant criminal act intend cause injury similarly present cases jurors precluded considering question value informed convict must find among things magazines petitioners sold utterly without redeeming social value error instruct juries use state community standard considering value question reviewing concludes rational juror properly instructed find value magazines convictions stand although plainly authority decide whether facts given case constitutional error harmless standard chapman california sparingly rose clark supra case illinois appellate considered issue therefore vacate judgment remand may ordered footnotes instructions stated obscenity determination made statewide standard rather reference standard single city town region within state app course noted mere fact minority population may believe work serious value mean reasonable person standard met state contends without instruction apply contemporary community standards jury loss decide value issue brief respondent obscenity prosecution trial discretion instruct jury decide value question considering whether reasonable person find serious literary artistic political scientific value work taken whole instruction likely confuse jury reasonable man instructions given generations contexts tort suits state also suggests attempting justify use community standards instruction value question instruction functional equivalent reasonable man instruction risk however community standards instruction jury member consider bound follow prevailing local views value without considering whether reasonable person arrive different conclusion new statute provides relevant part material performance obscene average person applying contemporary adult community standards find taken whole appeals prurient interest average person applying contemporary adult community standards find depicts describes patently offensive way ultimate sexual acts sadomasochistic sexual acts whether normal perverted actual simulated masturbation excretory functions lewd exhibitions genitals taken whole lacks serious literary artistic political scientific value rev ch effective jury rose instructed homicides presumed malicious absence evidence rebut implied presumption instruction shifted burden proof element crime violation sandstrom montana francis franklin understand rose justice steven dissent apparently based fiction reviewing say beyond reasonable doubt jury fact impermissible instruction mind concluded defendant killed malice say jury found unnecessary rely presumption connecticut johnson powell dissenting impermissible instruction superfluous rose say reviewing retrace jury deliberative processes facts found jury clear beyond reasonable doubt jury never heard impermissible instruction verdict problem instructions cases jury impermissibly aided constrained finding relevant element crime rose erroneous presumption case possible reliance unreasonable community views value question leaving open possibility petitioners convictions preserved despite instructional error rose extent cases prior rose may indicate conviction never stand instructions provided jury require find element crime proper standard proof see cabana bullock rose longer good authority justice scalia concurring join opinion regard harmless error think implausible community standard embracing entire state illinois cause jury convict reasonable person standard least circumstances reviewing concludes rational juror properly instructed find value magazines constitution offended letting convictions stand join opinion regard objective reasonable person test serious literary artistic political scientific value miller california think faithful assessment miller intended asked reconsider miller present case must note however view quite impossible come objective assessment least literary artistic value many accomplished people found literature dada art replication soup since ratiocination little esthetics fabled reasonable man little help inquiry replaced perhaps man tolerably good taste description betrays lack ascertainable standard evenhanded accurate decisionmaking always impossible regime least impossible cases matter think better advised adopt legal maxim long wisdom mankind de gustibus non est disputandum use arguing taste use litigating law courts decide beauty novelty even today standards approach proposed part ii justice stevens dissent eliminate difficulty arguably aggravates refined enough judgment estimate whether reasonable person find literary artistic value particular publication carries refinement point meaninglessness ask whether taste said unpredictable answer question must always yes little practical difference proposal part iii justice stevens dissent asserts forthrightly government may constitutionally criminalize mere possession sale obscene literature absent connection minors obtrusive display unconsenting adults post omitted today opinions suggest display need reexamination miller justice blackmun concurring part dissenting part join part justice stevens dissenting opinion agree harmless error analysis may appropriately applied case join parts ii justice white opinion judgment remanding case analysis however believe standard enunciated parts opinion meets concerns voiced dissent justice white points ideas work represents need obtain majority approval merit protection neither insofar first amendment concerned value work vary community community based degree local acceptance ante justice white emphasizes course mere fact minority population may believe work serious value mean reasonable person standard met ante thus contrary dissent characterization think juror asked create reasonable person order apply standard announces today might well believe majority population find value book reasonable minority find value post rather opinion stands clear proposition first amendment permit majority dictate discrete segments population composed art critics literary scholars scientists value may found various pieces work minority may find value work mean jury conclude reasonable person find value material taken whole ante reasonable people certainly may differ constitutes literary artistic merit see ante scalia concurring believe justice scalia recognizes concurrence although may applaud opinion today envisions even minority view among reasonable people work value may protect work judged obscene justice brennan dissenting justice stevens persuasively demonstrates unconstitutionality criminalizing possession sale obscene materials consenting adults write separately reiterate view regulation material respect consenting adults suffers defect concept obscenity defined sufficient specificity clarity provide fair notice persons create distribute sexually oriented materials prevent substantial erosion protected speech byproduct attempt suppress unprotected speech avoid costly institutional harms paris adult theatre slaton brennan dissenting therefore join justice stevens dissent justice stevens justice marshall joins justice brennan joins except justice blackmun joins part dissenting correctly holds juries convicted petitioners given erroneous instructions one three essential elements obscenity conviction nevertheless disagree disposition case three separate reasons error instructions harmless attempt clarify constitutional definition obscenity faithful first amendment believe illinois may criminalize sale magazines consenting adults enjoy constitutional right read possess distribution magazines presumptively protected first amendment held however constitutional protection apply obscene literature state prosecutor convince trier fact three components obscenity standard set forth miller california satisfied may view prohibit sale sexually explicit magazines criminal prosecution prosecutor must prove three elements beyond reasonable doubt thus cases addition first two elements miller standard juries required find basis proof beyond reasonable doubt magazines lacks serious literary artistic political scientific value ibid required finding fundamentally different conclusion majority populace considers magazines offensive worthless correctly holds juries cases instructed make required finding instead asked decide whether ordinary adults whole state illinois view magazines petitioners sold value app erroneous instructions juries found petitioners guilty obscenity find one essential elements crime type omission never constitute harmless error constitutional right trial jury prohibits judge directing verdict prosecution martin linen supply jury verdict stand instructions provided jury require find element crime proper standard proof cabana bullock justice white explained hardly need saying judgment conviction entered defendant matter strong evidence unless evidence presented jury judge jury waived unless jury judge finds evidence defendant guilt proved beyond reasonable doubt harmless error wholly deny defendant jury trial one elements offense charged henderson morgan white concurring emphasis added application doctrine circumstances violate petitioners constitutional right trial jury also pervert notion harmless error asked hold error occurred interfere jury ability legitimately reach verdict reached analysis may often appropriate principle apply unless jury found elements required support conviction doctrine may enable remove taint proceedings order preserve jury findings constitutionally supplement findings fundamental appellate matter trial free decide criminal case asked jury found something find consistently rejected possibility harmless error circumstances see jackson virginia carpenters bollenbach see also marks suggests cases longer good authority light decision last term rose clark see ante emphatically disagree rose clark held analysis applicable instructions informed jury proper elements crime proper standard proof impermissibly gave jury option finding one elements presumption violation sandstrom montana francis franklin holding analysis applicable explained presumption question remove issue intent jury consideration distinguishable instructional errors prevent jury considering issue emphasis added quoting connecticut johnson powell dissenting reasoned evidence overwhelming intent instruction allowing jury use presumption deemed simply superfluous justice powell earlier stated cases evidence may dispositive intent reviewing say beyond reasonable doubt jury found unnecessary rely presumption connecticut johnson dissenting opinion case course far different ever determine instructions element superfluous since error instructions went ultimate fact juries required find rose clark modify precedents requiring jury find elements crime proper standard modified sixth amendment provision criminal prosecutions accused shall enjoy right trial impartial jury ii aside error remanding convictions must clearly reversed announces obscenity standard fails accomplish goal ascribes stressing need avoid mere majoritarian inquiry proper inquiry whether ordinary member given community find serious literary artistic political scientific value allegedly obscene material whether reasonable person find value material taken whole ante judgment communicative material sort entitled protection first amendment reasonable persons consider serious literary artistic political scientific value years ago recognized system government accommodation widest varieties tastes ideas good literature educational value refined public information good art varies individuals one generation another multitude competing offerings public pick choose seems one trash may others fleeting even enduring values hannegan esquire iii even basic reason believe convictions must reversed difficulties inherent reasonable person standard reaffirm conviction government may constitutionally criminalize mere possession sale obscene literature absent connection minors obtrusive display unconsenting adults recent years struggled proper definition obscenity six members expressed opinion first amendment least precludes criminal prosecutions sales involved case dissenting smith explained view question offensiveness community standards whether national local one average juror expected answer evenhanded consistency average juror may well one reaction sexually oriented materials completely private setting entirely different reaction social context studies shown opinion held large majority group concerning neutral objective subject significant impact distorting perceptions group members normally take different position since obscenity means neutral subject since ascertainment community standard subjective task expression individual jurors sentiments inevitably influence perceptions jurors particularly normally minority moreover record never discloses obscenity standards jurors actually apply decisions cases effectively unreviewable appellate final analysis guilt innocence criminal defendant obscenity trial determined primarily individual jurors subjective reactions materials question rather predictable application rules law conclusion especially troubling image whether created words sounds pictures may produce wide variety reactions justice harlan noted often true one man vulgarity another lyric indeed think largely government officials jurors make principled distinctions area constitution leaves matters taste style largely individual cohen california judgment line communications offend blurred identify criminal conduct also blurred delimit protections first amendment footnotes omitted petitioners pope morrison accepted employment clerks bookstores hardly expected examine stores entire inventories even way knowing magazines sold legally obscene perhaps enterprise carried clandestine manner might fair impute knowledge something illegal going stores large signs indicating nature enterprise one claiming store largest selection adult merchandise northern illinois see people exhibit people morrison jud cir illinois appellate found pope necessary scienter difficult believe fully apprised type character three magazines simply looking app pet cert obvious pope knew magazines pornographic mean knew known legally obscene illinois statute precedents quite reasonable conclude sale magazines indeed law police never allow store remain operation much less publicly advertise goods examination statute given much guidance ordinary circumstances ignorance law excuse committing crime principle presupposes penal statute adequately puts citizens notice illegal constitution tolerate schemes criminalize categories speech conceded vague uncertain defined legislatively smith legislature define crime richard pope michael morrison expected criminal prosecution circumstances may much trap innocent ancient laws caligula cardiff concern vagueness inherent criminal obscenity statutes constitutional objection criminalization sale sexually explicit material involving children consenting adults stanley georgia held georgia criminalize mere possession obscene matter decision grounded upon recognition ur whole constitutional heritage rebels thought giving government power control men minds justification find law georgia desire protect individual mind effects obscenity concluded desire control moral content person thoughts wholly inconsistent philosophy first amendment adopted restrictive reading stanley opining implications criminalization sale distribution obscenity see reidel reels film crabbed approach offends overarching first amendment principles discussed stanley almost much insults citizenry declaring right read possess material may legally obtain stanley recognized legitimate reasons state regulate obscenity protecting children protecting sensibilities unwilling viewers surely broad criminal prohibition sale obscene material survive simply state may constitutionally restrict public display prohibit sale material minors case smith know whether ugly pictures record beneficial value stevens dissenting know though fact large demand comparable materials indicates provide amusement information least satisfy curiosity interested persons moreover serious people persuaded serve worthwhile purpose others believe arouse passions lead commission crimes true surely mountain material within protected zone equally capable motivating comparable conduct moreover baneful effects materials disturbingly reminiscent arguments formerly made valued works art end believe must rely capacity free marketplace ideas distinguish useful beautiful ugly worthless footnotes omitted first amendment protects works taken whole serious literary artistic political scientific value regardless whether government majority people approve ideas works represent miller california see ante section ii infra explain disagreement formulation obscenity standard section iii infra elaborate reasons believing constitution tolerate criminal prosecution cases purposes discussion however disagreements irrelevant see rose clark instruction permissive presumption may found superfluous delaware van arsdall failure permit witness bias chapman california improper comment defendant failure testify see rose supra stevens concurring analysis may inappropriate even error implicate reliability accuracy factual findings cases consistent theory constitution entitles criminal defendant fair trial perfect one van arsdall supra notwithstanding rejection community values test standard still effect require juror apply community values unless juror find ordinary member community reasonable person course impossible conclusion surely conflicts admonition value works vary community community based degree local acceptance whether majority people find value material immaterial ante indeed applied tort context analogizes ante reasonable man standard extolled enabling triers fact look community standard restatement second torts comment absent intolerable orthodoxy first amendment protection circumscribed attitudes reasonable man described excellent character stands like monument courts justice vainly appealing order lives example keeton dobbs keeton owen prosser keeton law torts ed quoting herbert misleading cases common law ed problems formulation accentuated expert evidence adduced value material discrete segment population art scholars scientists literary critics certainly jury conclude although people reasonably find value material ordinary reasonable person definitional problems confronts buttress conclusion none available formulas including one announced today reduce vagueness tolerable level time striking acceptable balance protections first fourteenth amendments one hand asserted state interest regulating dissemination certain sexually oriented materials paris adult theatre slaton brennan dissenting see roth douglas black dissenting sewell georgia stewart dissenting denial certiorari paris adult theatre supra brennan stewart marshall dissenting smith stevens dissenting recognized recently bulk scholarly commentary opinion resolution basic approach first amendment issues involved obscenity laws incorrect fails adequately protect first amendment values see attorney general pornography final report july state level oregon recently held state constitution gives people oregon right write print read say show sell anything consenting adult even though expression may generally universally considered obscene state henry least five adult obscenity statutes although criminalize certain materials harmful minors see alaska stat ann rev stat tit et seq stat ann et seq supp comp laws ann et seq stat tit et seq supp see also papachristou jacksonville lanzetta new jersey connally general construction especially intolerant vague statutes first amendment area see smith goguen grayned rockford interstate circuit dallas cramp board public instruction orange county smith california winters new york trials state used fact stores open years age proof respondents knew materials obscene see tr people pope pp jud cir tr people morrison jud cir explained splawn california signs identify adult character motion picture theatre bookstore convey message sexually provocative entertainment found within signs however also provide warning find erotic materials offensive shop elsewhere kinds books magazines entertainment sensible regulatory scheme truthful description subject matter pleasing offensive others encouraged punished dissenting opinion statements make clear films sexually provocative hardly confession obscene insurmountable vagueness problems involved criminalization view implicated respect civil regulation sexually explicit material area state retain substantial leeway see smith stevens dissenting see generally winters supra standards certainty statutes punishing offenses higher depending primarily upon civil sanction enforcement moreover long deny access market allows viewing public satisfy appetite sexually explicit fare believe state may regulate sale exhibition even nonobscene material see young american mini theatres schad mount ephraim stevens concurring prohibiting sale exhibition sexually explicit material minors material containing depiction minors long established state may go beyond constitutional definition obscenity see new york ferber ginsberg new york see also ferber supra stevens concurring person right receive information without regard social worth without regard obscenity seem follow state constitutionally punish one undertakes provide information willing adult recipient paris adult theatre brennan dissenting see also reidel marshall dissenting reels film douglas dissenting