Obscenity Saliba v. State (Indiana) ~ 1985 Cinema Blue v. State of NC ~ 1990

1. ObscenitySaliba v. State (Indiana) ~ 1985Cinema Blue v. State of NC ~ 1990 Matt Epperson Law & Social Science 2/22/06

2. A (short) History of Obscenity 1868 - Hicklin v. Regina (England) – Common law rule defining obscenity as any material that tended to “deprive and corrupt those whose minds are open to such immoral influences.” Led to banning of works by Balzac, Flaubert, James Joyce, and D.H. Lawrence based on isolated passages 1957 – Roth v. United States – more strict definition of obscenity: Material whose “dominant theme taken as a whole appeals to the prurient interest” to the “average person, applying contemporary community standards.” Subsequent cases displayed difficulty in applying the “Roth Test,” particularly the idea of ‘community standards’

3. History - Miller v. California (1973) • 5-4 ruling passed in U.S. Supreme Court under Chief Justice Warren Burger: “obscene material is not protected by the First Amendment.” Further defined three criteria to be used for state regulation: • The average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to the prurient interest • The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and • The work, taken as a whole, lacks serious literary, artistic, political, or scientific value • “Obscene character of materials may be determined by jury based on viewing of allegedly offensive material, and State need not present an expert witness or other evidence of community standards” • “Defendant in an obscenity prosecution is entitled to introduce relevant and appropriate expert testimony on issue of contemporary community standards” (6th and 14th Amendment)

4. Saliba v. State – Facts • Saliba charged with exhibiting obscene film in his adult bookstore in Indianapolis • Film depicted three males in homosexual activities • Defense -- Dr. Roderick Bell conducted public opinion poll to determine community standards in Marion County • State objected to the poll’s validity (with their own expert) and the trial judge ruled the study inadmissible – Saliba convicted • Appealed – Court ruled that study was relevant, and trial court erred in excluding the poll, and that study complied with generally accepted survey techniques (First time Indiana appellate addressed admissibility of a public opinion poll) • Judgment reversed and cause remanded for a new trial

5. In assessing Relevancy and Trustworthiness of a Public Opinion Poll, 7 criteria were highlighted (Baumholser v. Amax Coal Co, 1980) • Poll was conducted by an expert in the field of surveying • The relevant universe was examined • A representative sample was drawn from the relevant universe • The mode of questioning was “correct” (mail, telephone, etc) • The sample, questionnaire, and the interviews were designed in accordance with generally accepted standards • The data gathered was accurately reported • The data was analyzed in a statistically correct manner “The adherence to this generally accepted methodology renders the poll’s results admissible in the form of expert opinion…Any objection, other than to the lack of foundational requisites, and any testimony challenging the foundational testimony affect the weight accorded the poll, not its admissibility”

6. Bell’s Study: • Identified “universe” – Marion County • Universe sampled by telephone using random digit dialing • Two-week period - 500 adults were questioned by interviewers from hired field service • Interviewers were instructed and supervised by Dr. Bell • Questionnaire was prepared using “extensive pretesting” designed to insure the questions were understood • Subset of sample was recontacted by field supervisor to verify the interview took place and responses were accurately coded • Subset of this subset was drawn by Bell to reverify • “Results of poll were 98% repeatable within a margin of error of 3% to 4%”

7. Bell’s Study Sample Questions: ”Do you personally think it is acceptable or not acceptable for the average adult to see any depiction of actual or pretended sexual activities shown in movies and publications that he or she wants to? Question 13 (last question): “Finally, we have used the phrases ‘nudity’ and ‘sexual activities’ in the interview. What we mean by these terms is total male and/or female nudity, and sexual intercourse including all kinds of sexual variation. Is that what you understood we meant, or did you think we meant something else?”

8. Objection’s to Bell Study: Dr. Vargus • Vargus not present during Bell’s testimony, and reviewed survey over lunch break on day of trial • Said poll potentially generated “30% pseudo-opinion” • Objected to clarity of questions used in questionnaire • Recognized validity of the pretest and cross checks • Alleged sample was skewed because 60% of the subjects were women • Contended personal interviews would be preferable given the complexity of the poll • Trial Court’s only problem with the poll was the positioning of Question 13 – “did not advise the respondent of what level of sexual explicitness until the end of the poll, and even at that time the question was not clear”

9. Bell Study Strengths: • Proper universe and sampling technique • Good n (500) • Cross checks for inter-rater reliability Weaknesses: • Lack of information presented • Pretest wasn’t explained • Statistical methods weren’t discussed • Questions were somewhat vague – difficult to relate answers to materials in question • Sample= county but Questions= State • Question #13 – This appears to be a clarification question, which goes to measurement. As such, it should be presented at the beginning of the survey, to increase reliability of the responses and internal validity of the study as a whole

10. A better approach to Bell • Conduct similar survey as Bell, but be more explicit in describing the actual movie in question – to clarify whether “community standards” would find it tolerable. • To truly attempt to define “community standards,” create a survey with a progressive intensity scale of subject material that might be considered obscene: Kissing....oral sex…….(use your imagination) Have respondents identify the point at which the material is no longer tolerable to the community. • It would be important to establish the validity of this measure, and as communities constantly change, this measure would not necessarily have long-term generalizability

11. State of NC v. Cinema Blue -- Facts • Adult bookstore indicted on numerous charges of disseminating obscenity, conspiring to disseminate, and St. John and Peterson were indicted as accessories before the fact • Trial involved consideration of the obscenity of three videotapes and one magazine • Defense sought study to define “contemporary community standards” • Concerns about admissibility – due to NC’s previous exclusion of an ethnographic study and survey • Experts proposed to conduct a study using the actual materials alleged to be obscene • Prosecuting Attorney claimed that conducting this study would subject the defendants and their experts to prosecution • Request for injunction of study was denied • Defendants sought and received affirmative protective relief through federal district court • State appealed to district court, relief was stayed, study terminated prematurely

12. Defense experts consisted of PhD’s from Ohio State, UNC, UC Santa Barbara, Duke, and two Michigan attorneys – with accumulated expertise in issues of obscenity • Expertise was stipulated, and results of study were described as “trustworthy,” and “using state-of-the-art procedures” • However, study was excluded in entirety: “This evidence would be of no assistance to the trier of fact, and any probative value would be outweighed by its prejudice” • Almost entire defense (including comparable materials) were excluded, three of the videos were found to be obscene, and one video and magazine were found not to be obscene • Petitioners were sentenced to a total of six years each, and Cinema Blue was fined $150,000

13. Appealed – NC court of appeals affirmed convictions without elaborating on constitutional issues raised • NC Supreme Court dismissed notice of appeal and denied the Petition for Discretionary Review, without comment • Appealed to US Supreme Court, which accepted the case and the study • US Supreme Court – “This case presents this Court with an ideal opportunity to address this highly confused area of the law.” (admissibility of survey and other expert testimony re: obscenity) “Pursuant to the concerns addressed by appellate decisions, Defendants’ experts here conducted landmark research into the area of the obscenity test, specifically addressed all methodological and legal issues, and the trial court still, in a conclusory fashion, excluded the totality of this testimony and evidence. If a study utilizing the actual materials alleged to be obscene is not admissible in a criminal prosecution, it would appear that nothing is”

14. Cinema Blue – Re-examination of Miller • Petitioners had submitted pretrial motions challenging its constitutionality on vagueness & overbreadth grounds – denied • US Supreme Court • “Lack of sufficient constitutional safeguards” • “nebulous and subjective nature of Miller test” • Miller assumes “that a trier of fact is somehow magically imbued with knowledge of the contemporary community standards” • “Constitutionally overbroad” • Although questioned, Miller left intact

15. The Film Evaluation Study • An experimental model using the films and magazine from the case • Universe – Mecklenburg County • Sampling – Random digit dialing – Recruit within quotas • Recruiting to possibly view a movie and fill out questionnaire, possibly view adult, X-rated sexually explicit films • Phone interview was attempted whether subject agreed to view film or not – this would become a comparison group to evaluate selection bias • 129 ended up viewing films – 110 watched one of five sexually explicit films, and 19 watched a nonexplicit film (control group) • Experimental subjects were given pre-film and post-film questionnaires, and later pre and post- magazine questionnaires • Pre and post-film comparisons made with experimental and control group, as well as selection and mixture modeling with comparison group to address self-selection bias • Addressed potential test-effect bias • Results – majority of respondents felt that videos and magazine did not appeal to prurient interest, nor did it go beyond community standards

19. Film Evaluation Study Strengths: • Experimental method – viewed as gold standard • Pre & Post-Test • Control Group • Random assignment • Proper Universe • Sampling – established comparison group to deal with selection bias • Measurement – Questions were much more explicit and descriptive than Saliba – used scale • Measured testing effects using control group • Used actual movies and magazine in question • Published study in peer-reviewed journals with explicit details of design and methods • Demographic Breakdown of participation levels, and questionnaire results

20. Weaknesses: • Small control group (n=19) • Did study truly address self-selection bias? • Even with comparison techniques, it may be difficult for the average reader to believe that there is not something significantly different about the opinions of this experimental group, who agreed over the phone to show up for a 2 ½ hour session in which they would possibly view an X-rated film