The Supreme Court Monday agreed to review two rulings requiring the Secretary of Housing and Urban Development to pay subsidies to operators of low-income housing projects to avoid rent increases that offset increased costs. A story in yesterday's Washington Post erroneously said the court had let the rulings stand.
The Supreme Court ruled 5 to 4 yesterday that in federal prosecutions community standards of obscenity must be defined by the trial jurors, not by the legislature of the state where they happen to reside.
"It would be just as inappropriate for a legislature to attempt to freeze a jury to one definition of reasonableness as it would be for a legislature to try to define the contemporary community standard of appeal to prurient interest or patent offensiveness," Justice Harry A. Blackmun wrote in the opinion for the court.
The decision upheld the conviction of Jerry Lee Smith of Des Moines, who mailed magazines of films showing nude men and women engaged in various sexual acts to two postal inspectors in Iowa who had requested the material under assumed names.
Smith was convicted and sentenced under an 1873 federal law named after Anthony Comstock, who once wrote that "no embellisment of art can rob lust of its power for evil upon the human nature."
Smith argued that the relevant community standard was in an Iowa state law that prohibited the distribution of obscene materials only to minors, which the postal inspectors were not.
Affirming the Eigth U.S. Circuit Court of Appeals, the Supreme Court held that the issue of offense to contemporary community standards was a federal question not to be answered by a state obscenity law.
In a dissent, Justice John Paul Stevens said that a criminal offense under any federal law should be defined by "a uniform standard applicable throughout the country. This proposition is so obvious that it was not even questioned during the first 90 years of enforcement" of the federal law under which Smith was prosecuted, Stevens said.
Both Blackmun and Stevens drew on a 1973 decision in which the court, renewing its long quest for durable definitions of obscenity unworthy of constitutional protections, rejected a national standard and laid down these guidelines:
"Whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest," "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law," and "whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value."
Blackmum emphasized that yesterday's decision does not nullify the right of the state to regulate in the obscenity field. Instead, he said, the decision means that a state cannot compel the federal government to allow the mails to be used for the dissemination of obscene materials.
In his dissent Stevens recalled a historian who said that Comstock scorned "light literature, pool halls, lotteries, gambling dens, popular magazines, and weekly newspapers."
Stevens argued that "the diversity within the nation which makes a single standard of offensiveness impossible to identify is also present within each of the so-called local communities in which litigation of this kind is prosecuted."
Stevens said the jury in the 1973 case that produced the guidelines "was asked to apply the contemporary community standard of California. A more culturally diverse state . . . hardly can exist, and yet its standard for judging obscenity was judged to be more readily available than a national standard.
"Indeed, in some ways the community standard concept is even more objectionable than a national standard," partly because "the geographic boundaries of the relevant community are not easily defined, and sometimes appear to be subject to elastic adjustment to suit the needs of the prosecutor."
The court took these other actions:
"I am not prepared to rely on either the average citizen's understanding of an amorphous community standard or on my fellow judges' appraisal of what has serious artistic merit as a basis for deciding what one citizen may communicate to another by appropriate means."
Let stand a ruling that Merv Adelson and Irwin Molasky, promoters of Rancho La Costa, a resort near San Diego, are not clearly "public figures," and, consequently are able to maintain a $540 million libel suit against Penthouse magazine for publishing an article entitled "La Costa - the Hundred-Million-Dollar Resort With Criminal Clientele."
Let stand two rulings requiring the Secretary of Housing and Urban Development to pay subsidies to operator of low-income housing projects so that they don't have to raise rents to offset increased costs. HUD had claimed the subsidies were discretionary and that Congress, in any event, hadn't funded them.