11th Cir. Pattern Jury Instr. (Criminal) O57

(for Purpose of Sale or Distribution)

18 U.S.C. § 1465

It’s a Federal crime to transport obscene materials in interstate commerce for

the purpose of selling or distributing them.

The Defendant can be found guilty of this crime only if all the following

facts are proved beyond a reasonable doubt:

(1) the Defendant knowingly transported the materials described in

the indictment in interstate commerce;

(2) the Defendant transported the materials to sell or distribute them;

(3) when the materials were transported, the Defendant knew the

general sexual nature of the material’s content; and

(4) the material was legally obscene.

To move something in “interstate commerce” is to move it from one state

into another state.

To transport material with “the purpose to sell or distribute” is to move the

material with the intent to transfer the material to someone else, even if no money

is involved.

[You may presume that the Defendant intended to sell or distribute the

material if the material comprised two or more of any article of the kind described

in the indictment; or a combined total of five publications or articles of the kind

described in the indictment.

But that presumption may be overcome or outweighed by other evidence.]

The Government doesn’t have to prove that the Defendant knew the material

was legally obscene. It only has to prove that the Defendant knew the general

sexual nature of the material.

So if you find beyond a reasonable doubt that the Defendant moved the

material in interstate commerce and knew about the material’s general sexual

nature, and if you find that the material was legally obscene, as I’ll shortly define

that word for you, then you may find that the Defendant knew the material was

obscene.

Freedom of expression is a constitutional right that is fundamental to our

system, and we all enjoy it. It has contributed much to the development and well -

being of our free society. In exercising this right, sex may be portrayed and the

subject of sex may be discussed freely and publicly. Material may not be

condemned merely because it contains passages or sequences that describe or

depict sexual activity. But the constitutional right to free expression doesn’t extend

to legally obscene material.

To prove beyond a reasonable doubt that material is legally obscene, the

Government must prove three things:

(1) that the material predominantly appeals to prurient interest;

(2) that it depicts or describes sexual conduct in a patently offensive

way; and

(3) that it lacks serious literary, artistic, political, or scientific value.

First, you must view the material as a whole, keeping in mind the intended

and probable audience, and decide whether the material’s predominant theme or

purpose is an appeal to the prurient interest of an average person of the community

as a whole [or the prurient interest of members of a deviant sexual group, as the

case may be].

An appeal to “prurient” interest is an appeal to a morbid, degrading, and

unhealthy interest in sex, not just an ordinary interest.

Viewing the material as a whole for the “predominant theme or purpose of

the material” means looking for the main or principal focus of the whole work

based on its total effect, not on the focus of incidental themes or isolated passages

or sequences.

To decide whether the material appeals to a morbid, degrading, or unhealthy

interest in sex of the “average person of the community as a whole,” you must

consider the contemporary community standards that would be applied by an

average person with an ordinary attitude toward and interest in sex.

Contemporary community standards are those accepted by the community as

a whole; in other words, what society at large or people in general will accept. It

does not include what some groups in the community believe the community

should accept or refuse to accept.

But customs and standards change. So the community as a whole may

decide to accept things that weren’t acceptable before. What matters is what is

acceptable now.

So obscenity is not a matter of individual or personal taste or how the

material strikes an individual juror – whether something is obscene or not depends

on what the average person of the community as a whole would think of it.

[In addition to considering the viewpoint of a normal person, you can

determine whether the material has prurient appeal by considering the sexual

interest of a clearly defined deviant group, such as sadomasochists. You must find

beyond a reasonable doubt that the material appeals to the prurient interest of such

a group.]

Second, you must decide whether the material depicts or describes, in a

patently offensive way, sexual conduct such as ultimate sexual acts or

masturbation, excretory functions, or lewd exhibition of the genitals. But you must

not judge the material by your own standards. You must judge the material by

contemporary community standards and decide whether the material exceeds the

generally accepted limits of public tolerance and is clearly offensive.

I emphasize that whether material appeals to a prurient interest or whether it

is patently offensive must be judged by contemporary community standards, not by

how the material affects you personally. You must consider the material in the

same way that an average person in the community, with a normal attitude toward

and interest in sex would consider it.

Contemporary community standards are those accepted by the community as

a whole; in other words, what society at large or people in general will accept. It

does not include what some groups in the community believe the community

should accept or refuse to accept.

Third, you must decide whether the material lacks serious literary, artistic,

political or scientific value. An item may portray explicit sexual conduct and still

have serious value in one or more of these areas. You must decide whether the

material in this case has such value. The ideas represented in a work do not need

majority approval to be worthy of protection.

So for this decision, you should not use contemporary community standards.

Instead, you must objectively decide whether a reasonable person considering the

material as a whole would find it has or does not have serious literary, artistic,

political, or scientific value.

The Government must prove all three things before you can decide the

material is obscene. If any one of those things is not proved, then the material is

not obscene within the meaning of the law.