Pope v. Illinois

Delivered the opinion of the Court.

In Miller v. California, 413 U. S. 15 (1973), the Court set out a tripartite test for judging whether material is obscene. The third prong of the Miller test requires the trier of fact to determine “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id., at 24. The issue in this case is whether, in a prosecution for the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question.

I

On July 21, 1983, Rockford, Illinois, police detectives purchased certain magazines from the two petitioners, each of whom was an attendant at an adult bookstore. Petitioners were subsequently charged separately with the offense of “obscenity” for the sale of these magazines. Each petitioner moved to dismiss the charges against him on the ground that the then-current version of the Illinois obscenity statute, Ill. Rev. Stat., ch. 38, ¶ 11-20 (1983), violated the First and Fourteenth Amendments to the United States Constitution. Both petitioners argued, among other things, that the statute was unconstitutional in failing to require that the value question be judged “solely on an objective basis as opposed to reference [sic] to contemporary community standards.” App. 8, 22. Both trial courts rejected this contention and instructed the respective juries to judge whether the material was obscene by determining how it would be viewed by ordinary adults in the whole State of Illinois. Both petitioners were found guilty, and both appealed to the Illinois Appellate Court, Second District. That court also rejected petitioners’ contention that the issue of value must be determined bn an objective basis and not by reference to contemporary community standards. 138 Ill. App. 3d 726, 486 N. E. 2d 350 (1985); 138 Ill. App. 3d 595, 486 N. E. 2d 345 (1985). The Illinois Supreme Court denied review, and we granted certio-rari, 479 U. S. 812 (1986).

h-i b — I

There is no suggestion m our cases that the question of the value of an allegedly obscene work is to be determined by reference to community standards. Indeed, our cases are to the contrary. Smith v. United States, 431 U. S. 291 (1977), held that, in a federal prosecution for mailing obscene materials, the first and second prongs of the Miller test — appeal to prurient interest and patent offensiveness — are issues of fact for the jury to determine applying contemporary community standards. The Court then observed that, unlike prurient appeal and patent offensiveness, “[ljiterary, artistic, political, or scientific value ... is not discussed in Miller in terms of contemporary community standards.” Id., at 301 (citing F. Schauer, The Law of Obscenity 123-124 (1976)). This comment was not meant to point out an oversight in the Miller opinion, but to call attention to and approve a deliberate choice.

In Miller itself, the Court was careful to point out that “[t]he First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” 413 U. S., at 34. Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole. The instruction at issue in this case was therefore unconstitutional.

Ill

The question remains whether the convictions should be reversed outright or are subject to salvage if the erroneous instruction is found to be harmless error. Petitioners contend that the statute is invalid on its face and that the convictions must necessarily be reversed because, as we understand it, the State should not be allowed to preserve any conviction under a law that poses a threat to First Amendment values. But the statute under which petitioners were convicted is no longer on the books; it has been repealed and replaced by a statute that does not call for the application of community standards to the value question. Facial invalidation of the repealed statute would not serve the purpose of preventing future prosecutions under a constitutionally defective standard. Cf., e. g., Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 964-968, and n. 13 (1984). And if we did facially invalidate the repealed statute and reverse petitioners’ convictions, petitioners could still be retried under that statute, provided that the erroneous instruction was not repeated, because petitioners could not plausibly claim that the repealed statute failed to give them notice that the sale of obscene materials would be prosecuted. See Dombrowski v. Pfister, 380 U. S. 479, 491, n. 7 (1965); United States v. Thirty-seven Photographs, 402 U. S. 363, 375, n. 3 (1971). Under these circumstances, we see no reason to require a retrial if it can be said beyond a reasonable doubt that the jury’s verdict in this case was not affected by the erroneous instruction.

The situation here is comparable to that in Rose v. Clark, 478 U. S. 570 (1986). In Rose, the jury in a murder trial was incorrectly instructed on the element of malice, yet the Court held that a harmless-error inquiry was appropriate. The Court explained that in the absence of error that renders a trial fundamentally unfair, such as denial of the right to counsel or trial before a financially interested judge, a conviction should be affirmed “[wjhere a reviewing court can find that the record developed at trial established guilt beyond a reasonable doubt. . . Id., at 579. The error in Rose did not entirely preclude the jury from considering the element of malice, id., at 580, n. 8, and the fact that the jury could conceivably have had the impermissible presumption in mind when it considered the element of malice was not a reason to retry the defendant if the facts that the jury necessarily found established guilt beyond a reasonable doubt. The Court said: “When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond reasonable doubt. Connecticut v. Johnson, 460 U. S. 73, 96-97 (1983) (Powell, J., dissenting). In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury.” Id., at 580-581.

Similhrly, in the present cases the jurors were not precluded from considering the question of value: they were informed that to convict they must find, among other things, that the magazines petitioners sold were utterly without redeeming social value. While it was error to instruct the juries to use a state community standard in considering the value question, if a reviewing court concludes that no rational juror, if properly instructed, could find value in the magazines, the convictions should stand.

Although we plainly have the authority to decide whether, on the facts of a given case, a constitutional error was harmless under the standard of Chapman v. California, 386 U. S. 18 (1967), we do so sparingly. Rose v. Clark, supra, at 584. In this case the Illinois Appellate Court has not considered the harmless-error issue. We therefore vacate its judgment and remand so that it may do so.

It is so ordered.

As noted in petitioners’ motions to dismiss, App. 7, 21, the statute under which petitioners were prosecuted had been construed to incorporate the third prong of the tripartite test set out in the plurality opinion in Memoirs v. Massachusetts, 383 U. S. 413 (1966), viz., material is obscene only if “utterly without redeeming social value.” Id., at 418. See People v. Ridens, 59 Ill. 2d 362, 321 N. E. 2d 264 (1974); People v. Thomas, 37 Ill. App. 3d 320, 346 N. E. 2d 190 (1976). In Miller v. California, 413 U. S. 15, 22 (1973), the Court held that this test is not constitutionally mandated because it imposes a burden of proof on the State that is “virtually impossible to discharge under our criminal standards of proof.” Nonetheless, at the time petitioners were prosecuted Illinois still chose to retain the higher burden of proof on the value question, which it was of course free to do. For purposes of this ease, it makes no difference that the value inquiry was under the Memoirs as opposed to the Miller test.

The instructions stated that the obscenity determination was to be made under a statewide standard rather than by reference to the standard of any single city, town, or region within the State. App. 11, 25-26.

Of course, as noted above, the mere fact that only a minority of a population may believe a work has serious value does not mean the “reasonable person” standard would not be met.

The State contends that without an instruction to apply contemporary community standards the jury will be at a loss as to how to decide the value issue. Brief for Respondent 21. In an obscenity prosecution the trial court, in its discretion, could instruct the jury to decide the value question by considering whether a reasonable person would find serious literary, artistic, political, or scientific value in the work, taken as a whole. Such an instruction would be no more likely to confuse a jury than the “reasonable man” instructions that have been given for generations in other contexts, such as tort suits.

The State also suggests, in attempting to justify the use of a “community standards” instruction on the value question, that such an instruction is the functional equivalent of a “reasonable man” instruction. Id., at 16. The risk, however, is that under a “community standards” instruction a jury member could consider himself bound to follow prevailing local views on value without considering whether a reasonable person would arrive at a different conclusion.

The new statute provides in relevant part:

“Any material or performance is obscene if: (1) the average person, applying contemporary adult community standards, would find that, taken as a whole, it appeals to the prurient interest; and (2) the average person-, applying contemporary adult community standards, would find that it depicts or describes, in a patently offensive way, ultimate sexual acts or sadomasochistic sexual acts, whether normal or perverted, actual or simulated, or masturbation, excretory functions or lewd exhibitions of the genitals; and (3) taken as a whole, it lacks serious literary, artistic, political or scientific value.” Ill. Rev. Stat., ch. 38, Hll-20(b) (1985) (effective Jan. 1, 1986).

The jury in Rose was instructed that “[a]U homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption.” This instruction shifted the burden of proof on an element of the crime, in violation of Sandstrom v. Montana, 442 U. S. 510 (1979), and Francis v. Franklin, 471 U. S. 307 (1985).

We do not understand Rose, as Justice Steven’s dissent apparently does, to be based on the fiction that a reviewing court could say beyond all reasonable doubt that the jury in fact did not have the impermissible burden-shifting instruction in mind when it concluded that the defendant killed with malice. To say that the jury “would have found it unnecessary to rely on the presumption,” Connecticut v. Johnson, 460 U. S. 73, 97, n. 5 (Powell, J., dissenting), or that the impermissible instruction was “superfluous,” Rose, 478 U. S., at 581, is not to say that the reviewing court can retrace the jury’s deliberative processes but that the facts found by the jury were such that it is clear beyond a reasonable doubt that if the jury had never heard the impermissible instruction its verdict would have been the same.

The problem with the instructions in both cases is that the jury could have been impermissibly aided or constrained in finding the relevant element of the crime: in Rose, by the erroneous presumption; in this case, by possible reliance on unreasonable community views on the value question. By leaving open the possibility that petitioners’ convictions can be preserved despite the instructional error, we do no more than we did in Rose. To the extent that cases prior to Rose may indicate that a conviction can never stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof, see, e. g., Cabana v. Bullock, 474 U. S. 376, 384 (1986), after Rose, they are no longer good authority.