Pinkus v. United States, 436 U.S. 293 (1978)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Petitioner was convicted of mailing obscene materials and advertising brochures for such materials in violation of 18 U.S.C. § 1461 (1976 ed.), and the Court of Appeals affirmed. Since the materials were mailed prior to 1973, he was tried under the standards of Roth v. United States, 354 U.S. 476, and Memoirs v. Massachusetts, 383 U.S. 413, rather than under those of Miller v. California, 413 U.S. 15. He claims that the trial court’s instructions to the jury were improper because they included children and sensitive persons within the definition of the community by whose standards obscenity was to be judged; charged that members of deviant sexual groups could be considered in determining whether the materials appealed to prurient interest in sex; and also charged that pandering could be considered in determining whether the materials were obscene.

Held:

1. Children are not to be included as part of the "community" as that term relates to the "obscene materials" proscribed by § 1461, and hence it was error to instruct the jury that children are part of the relevant community. A jury conscientiously striving to define such community, the "average person," by whose standards obscenity is to be judged, might very well reach a much lower "average" when children are part of the equation than it would if it restricted its consideration to the effect of allegedly obscene materials on adults. Pp. 296-298.

2. However, inclusion of "sensitive persons" in the charge advising the jury of whom the community consists was not error. In the context of this case, the community includes all adults who compose it, and a jury can consider them all in determining the relevant community standards, the vice being in focusing upon the most susceptible or sensitive members, rather than in merely including them, as the trial court did, along with all others in the community. Pp. 298-301.

3. Nor was the instruction as to deviant groups improper. Nothing prevents a court from giving an instruction on prurient appeal to such groups as part of an instruction pertaining to appeal to the average person when the evidence, as here, would support such a charge. Pp. 301-303.

4. The pandering instruction, which permitted the jury to consider the touting descriptions in the advertising brochures, along with the materials themselves, to determine whether the materials were intended to appeal to the recipient’s prurient interest in sex, i.e., whether they were "commercial exploitation of erotica solely for the sake of their prurient appeal," Ginzburg v. United States, 383 U.S. 463, 466, was proper in light of the evidence. To aid a jury in determining whether materials are obscene, the methods of their creation, promotion, or dissemination are relevant. Pp. 303-304.

551 F.2d 1155, reversed and remanded.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 305. BRENNAN, J., filed a separate opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 305. POWELL, J., filed a dissenting opinion, post, p. 306.