Among citizens concerned about obscenity in their local communities, one question repeatedly arises: How, as citizens in our area, do we set our community standards? The phrase “community standards” comes from the Supreme Court’s decision in Miller v. California, 413 U.S. 15 (1973). In setting forth the test for obscenity, the Court stated that the issues of whether the material has patently offensive representations of sexual conduct and whether the material appeals to the prurient interest should be judged by the community standards. This phrase was an attempt to counter the suggestion that obscenity should be judged by “national standards.” The Court noted that “it is not realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.” Through this statement the Court realized that it would be unworkable to try to determine acceptability on a basis as broad as the entire nation. The concept of the “community” merely provided a more workable vehicle for such a determination.
Community standards cannot be discussed in a vacuum. The legal concept of community standards is relevant only during an obscenity prosecution. As a legal concept, a community may be the state, the county or the city. The “community” for purposes of an obscenity prosecution may be defined by statute or by case law. If it is not specifically defined, the court may instruct the jury that they should consider the standards of the geographic area from which the jury pool is drawn.
The parameters of this legal concept do not mean, however, that a community should not strive to improve the quality of life by refusing to accept or even tolerate potentially obscene material. A community that makes it unprofitable for business to sell or rent pornographic or obscene material will make great strides in establishing a standard of community non-acceptance for such material.
The best way to firmly establish community standards is through consistent enforcement of the obscenity laws. Businesses that distribute sexually oriented material will clearly see the types of material that will be accepted by the community and those that will not. Communities like Cincinnati, Ohio, that have eliminated the distribution of obscene material have done so in large part because of consistent law enforcement efforts. This model can be replicated in any community and every community can maintain an environment free of illegal obscene material.
Phil Burress, President, Citizens for Community Values (http://www.ccv.org) writes about one city’s fight to be free from obscenity:
Since Citizens for Community Values’ inception in 1983, we have attempted to educate the community about obscenity, its harm, and our community standards. Cincinnati is often called a conservative town. People have confused conservatism with high community values. Yes, conservatives are more likely to fight for high community standards than liberals, but that doesn’t make a community conservative.The Mapplethorpe issue was consistently referred to as conservatives “versus” liberals. Community standards are not left or right. They are high, low or somewhere in between. A liberal community can have high standards just as easily as a conservative community can have low standards. Liberals and conservatives alike, for the most part, want a wholesome, clean community in which to raise their families. They want a community free of sex shops on every corner. Have you ever seen just one adult bookstore or one video store renting adult tapes in a community? NO! Where the community standards are low enough to permit their existence, there will never be a shortage of people who are willing to take advantage of fellow human beings’ weaknesses.In 1973 the Supreme Court ruled that each community can set its own community standards. How are they set? It really is simple, here is how you fit into the formula: If you want low community standards, be silent.
The law states that all material is protected by the First Amendment until a judge or jury finds the material obscene. Therefore, if you know of a place of business, open to the public, which sells, rents, displays, gives away, or distributes in any way material you believe to be obscene, and you are silent, the material will never be prosecuted. A judge or jury will never make the decision on whether the material is obscene if you are silent. And, consequently, the material will never be prosecuted. As community standards continue to drop, you will begin to see strip clubs, peep booths, and adult bookstores. Tomorrow, a person could open a porno store in downtown Cincinnati selling video tapes of men having sex with animals, and that material would be protected by the First Amendment until it is prosecuted and a judge or jury finds it obscene.
If you want high community standards, speak up.
If you find questionable material available, you must write a letter or call and report the questionable material to your local law enforcement agency. It’s reported in the same manner you would report any other crime.
If you were right, and the material is found obscene by a judge or jury, community standards are raised back to the level before the material was made available.
If you were wrong, and the material is found not to be obscene by a judge or jury, community standards stay where they are until the next court case. The legal process is the only way to raise community standards unless the questionable material is removed voluntarily. The key phrase is “Silence is Acceptance.”
If you see something you believe to be obscene and you are silent, you are, in reality, accepting it as a community standard.
It has been said, “Cincinnati has the highest community standards in the country.” We receive calls from all over the country asking, “How did you achieve such high standards?” A television crew from Germany flew to Cincinnati recently, to do what they called a “60 Minutes-type show” on how Cincinnati got rid of pornography. They were amazed there was a city in the United States free of obscenity.
From other communities we hear people say, “We file complaints and nothing is done by our prosecutor or police department.” They are electing the wrong people to office. They have prosecutor standards, not community standards.
We know that across America there is a shortage of citizens who are willing to speak up and a shortage of law enforcement officers who will prosecute to determine community standards. We are blessed that Greater Cincinnati has no shortage of either.
How to maintain high community standards
1. Prosecution of material that meets the elements of the crime, not necessarily winning the trial, is what raises community standards. As long as merchants choose to pander prosecutable pornography, the law must be enforced so juries or judges can decide if the material is obscene and in violation of community standards. This takes action on the part of law enforcement and prosecutors to diligently and rigorously investigate and enforce state obscenity laws, upholding their sworn duty and oath of office to serve, protect and enforce all state laws. Failure to enforce state obscenity laws is the only way community standards can be lowered.
2. Take a vocal stand against soft core pornography. The attitude of a community toward soft core pornography sends a public policy message concerning all pornography. The road to high community standards begins with a strong message that soft core pornography is unacceptable.
Report OFFENSIVE BILLBOARDS
1. Contact the company that owns the billboard, not the advertiser, and make a respectful appeal to remove it.
2. If the owner refuses to remove it, take two photos of the offensive billboard. Keep one for your records.
3. Send a photo with name, address and phone number of the billboard owner and the exact address location of the billboard, including city and state, to the Outdoor Advertising Association of America for determination whether the billboard owner is violating the OAAA code of ethical conduct.
4. If there is an ethical violation, the OAAA will contact the association member directly.
Outdoor Advertising Association of America, 1850 M Street N.W., Suite 1040, Washington, DC, 20036, http://www.oaaa.org/ .
Q: Will one case decide our community standards?
A: No. The pornographers would like you to believe that if they have a hung jury or win one case that community standards have been established. The fact is that as long as there are adult videotapes in any county, prosecution must never let up. Each tape is decided one at a time. As long as video store owners think obscenity is protected by the First Amendment, then prosecution must occur to settle the issue. Prosecution will let up if the citizen complaints stop.
Q: The video industry says it rents and sells hundreds of millions of “adult” video tapes each year. Doesn’t this demonstrate “community standards”?
A: No. The courts have found that, with regard to community standards, tolerance is not acceptance. In the 1960s, there were more than 250 child pornography monthly magazines, mostly sold from “adult” bookstores. This business was exposed, denounced by the American people, and driven underground. Besides, if Americans have really “accepted” hard core pornography, why have so many organized to fight it, and to demand that prosecutors bring these criminals to court?
Q: Why can’t a majority vote by the citizens set “community standards” and keep SOBs out? Why should they be allowed to operate since they cause problems and distribute “obscenity”?
A: Two reasons: the First Amendment and the presumption of innocence. “Expressive” materials and conduct cannot be banned on the presumption that they might be obscene. That is “censorship” and unconstitutional “prior restraint.” In a criminal trial (presumption of innocence) of an SOB owner charged with distributing “obscenity,” the jury will be instructed to use a “contemporary community standard” as the reference point by which it will judge the material in question and the “innocence” of the accused, Miller v. California, 413 U.S. 15 (1973). If they find it to be obscene, both presumptions will have been rebutted. The defendant is guilty. That does not mean, by itself, that the business may be banned. Excerpted from Crucial Considerations for a Constitutional and Effective Sexually Oriented Business Ordinance, National Law Center for Children and Families, 1996, http://www.nationallawcenter.org/.
Q: Why be concerned about obscenity when there is so much violent crime?
A: Pornography outlets breed and attract violent crime. CONTINUE