Should children be included in the "community" whose "contemporary standards" determine what's obscene? What if children never saw the material?
And what if the community is one where 500,000 people in a single year paid $5 each to see one sexually explicity film, "Deep Throat," and 240,000 in 37 weeks bought tickets to another, "The Devil and Miss Jones"?
These questions were raised yesterday in argument in the Supreme Court about the obscenity conviction in Los Angeles of William Pinkus, who did business as Rosslyn Nes Co. and Kamera.
The justices will decide by early July whether Pinkus must serve the concurrent four-year prison terms imposed for each of 11 counts by federal Judge David W. Williams, who was upheld by the 9th U.S. Circuit Court of Appeals.
The key issue is whether Williams properly instructed the jury how to decide whether or not freedom of speech and press protected Pinkus when he delivered through the mails illustrated brochures promoting sex films, books and magazines.
In the past decision, the Supreme Court has held that one part of the test for obscenity is whether, as a whole, a book film or photo appeals to the prurient interest of the "average person, applying community standards."
In the Pinkus case, the trial judge acknowledged that it "in no way" involves "any distribution of any kind to children," and "no exposure of any of this evidence to children."
Over defense objections, however, Williams instructed the jury that "in determining community standards, you are to consider the community as a whole," including "men, women and children, from all walks of life."
Under questioning yesterday, government lawyer Jerome A. Feit, of the Justice Department's Criminal Division, urged the court to uphold the conviction as basically sound, although he didn't even try to defend the "children" instruction. He termed it "not to be praised" and "far from perfect." He said that he "disapproved" of it and that it shouldn't be repeated.
Chief Justice Warren E. Burger, however, offered a possible implied defense. "Have you ever seen a perfect instructions" he asked. Feit allowed that he hadn't.
In 1973, the Supreme Court said that questioned material "will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person - or indeed a totally insensitive one."
Yet Williams instructed the jury to include the "sensitive" as well as the "insensitive" among the "everyone in the community" who are the source of hypothetical average standards.
Feit acknowledged that this instruction gave him trouble, too.
Williams also directed the jury to gauge whether the material was designed to appeal to the prurient interest of "the average person," but also "of members of a deviant sexual group."
This caused Justice John Paul Stevens to wonder aloud how sexually normal jurors would know what would appeal to deviants.
For Pinkus, Bernard A. Berkman of Cleveland recalled that Williams had declined to allow the jury to see "Deep Throat" and "The Devil and Miss Jones" in order to compare these financially successful films with Pinkus' sex film "613."
The lawyer suggested to the justices that they might want to view the films to make such a comparison for themselves. The justices did not respond to the suggestion.