Sunday, May 13, 2001

Legal standard full of confusion




By Dan Horn
The Cincinnati Enquirer

        The U.S. Supreme Court once described its own efforts to define obscenity as “somewhat tortured.” Even so, the court kept trying. The justices finally resolved the issue in 1973 with a complex decision that created the concept of community standards. In essence, the court told communities to figure obscenity out for themselves.

        The theory is that community standards are not the same everywhere, so the court could not create a true “national standard.” Instead, juries in each community must decide obscenity cases based on their own community's standards.

        And the only way to determine those standards is to have a trial. The jury represents the community and decides where the community draws the line on obscenity. Maybe obscenity is a pornographic picture in a magazine, or maybe it's an X-rated movie.

        Or maybe the community will tolerate almost any form of pornography.

        “People in different states vary in their tastes and attitudes,” the Supreme Court justices wrote.

        Hamilton County's community standards will get a test in court Monday when Elyse Metcalf faces obscenity charges for selling X-rated videos at her Pendleton store, Elyse's Passion.

        Another store, Tip Top Magazines in Corryville, will face similar charges in June.

        Critics say obscenity laws are flawed because the concept of community standards is too vague. “How do you define a community standard without taking into account every individual?” Ms. Metcalf says.

        She says the law is confusing because it's unlike any other. With no written, iron-clad community standard on the books, a trial is the only way to measure the standard and define the crime.

        Most trials work the opposite way: The law books describe the crime in great detail, so everyone knows at the start of the trial exactly what kind of behavior is against the law.

        Ms. Metcalf's trial could be the first official test of Hamilton County's community standards in years.

        Larry Flynt was supposed to be that test two years ago when he was charged with obscenity for selling pornographic videos. But his case ended without a jury verdict, when his Hustler store pleaded guilty to charges involving three of the videos.

       



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