5th Cir. Pattern Jury Instr. (Criminal) 2.60

18 U.S.C. § 1461

Title 18, United States Code, Section 1461, makes it a crime for anyone to use the United

States mail to transmit obscene material.

For you to find the defendant guilty of this crime, you must be convinced that the

government has proved each of the following beyond a reasonable doubt:

First: That the defendant knowingly used the mail for the conveyance [delivery] of certain

material [caused certain material to be delivered by mail], as charged;

Second: That the defendant knew at the time of the mailing that the material was of a

sexually oriented nature; and

Third: That the material was obscene.

Although the government must prove that the defendant generally knew the mailed

material was of a sexually oriented nature, the government does not have to prove that the

defendant knew the material was legally obscene.

Freedom of expression has contributed much to the development and well-being of our free

society. In the exercise of the fundamental constitutional right to free expression which all of us

enjoy, sex may be portrayed, and the subject of sex may be discussed, freely and publicly. Material

is not to be condemned merely because it contains passages or sequences that are descriptive of

sexual activity. However, the constitutional right to free expression does not extend to that which

is obscene.

To prove a matter is “obscene,” the government must satisfy three tests: (1) that the work

appeals predominantly to prurient interest; (2) that it depicts or describes sexual conduct in a

patently offensive way; and (3) that the material, taken as a whole, lacks serious literary, artistic,

political, or scientific value.

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

in sex, as distinguished from an ordinary interest in sex.

The first test, therefore, is whether the predominant theme or purpose of the material, when

viewed as a whole and not part by part, and when considered in relation to the intended and

probable recipients, is an appeal to the prurient interest of an average person in the community as

a whole [to the prurient interest of members of a group with specific sexual interests]. In making

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this decision, you must examine the main or principal focus of the material, when assessed in its

entirety and based on its total effect, not on incidental themes or isolated passages or sequences.

The second test is whether the material depicts or describes, in a patently offensive way,

sexual conduct such as ultimate sexual acts, actual or simulated; masturbation; excretory functions;

or lewd exhibition of the genitals.

These first two tests which I have described are to be decided by you, applying

contemporary community standards. This means that you should make the decision in the light of

contemporary standards that would be applied by the average person in this community, with an

average and normal attitude toward and interest in sex. Contemporary community standards are

those accepted in this community as a whole. You must decide whether the material would appeal

predominantly to prurient interests and would depict or describe sexual conduct in a patently

offensive way when viewed by an average person in this community as a whole, that is, by the

community at large or in general. Matter is patently offensive by contemporary community

standards if it so exceeds the generally accepted limits of candor in the entire community as to be

clearly offensive. You must not judge the material by your own personal standards, if you believe

them to be stricter than those generally held, nor should you determine what some groups of people

may believe the community ought to accept or refuse to accept. Rather, you must determine the

attitude of the community as a whole.

[However, the prurient -appeal requirement may also be assessed in terms of the sexual

interest of a clearly defined group with specific sexual interests if the material in question was

intended to appeal to the prurient interest of that group, as distinguished from the community in

general.]

If you find that the material meets the first two tests of the obscenity definition, your final

decision is whether the material, taken as a whole, lacks serious literary, artistic, political, or

scientific value. Unlike the first two tests, this third test is not to be decided on contemporary

community standards but rather on the basis of whether a reasonable person, considering the

material as a whole, would find that the material lacks serious literary, artistic, political, or

scientific value. An item may have serious value in one or more of these areas even if it portrays

sexually oriented conduct. It is for you to say whether the material in this case has such value.

All three of these tests must be met before the material in question can be found to be

obscene. If any one of them is not met, the material would not be obscene within the meaning of

the law.