The Impossibility of Community Standards

Abstract

Under a doctrine introduced by the United States Supreme Court in Roth v. United States (1957), works deemed “obscene” according to “contemporary community standards” are not protected by the freedoms of speech and of the press enshrined in the U.S. Constitution. This paper describes a new theory of community standards. In this theory, both individual and community standards are taken to be judgments — categorizations of possible works as either “obscene” or “not obscene.” Community standards are derived systematically from the individual standards. Every possible method of deriving the community standards is considered. The methods are they evaluated according to normative criteria which require that the community standard (a) preserve unanimous agreements about the entire standard, (b) become more permissive when all individuals become more permissive, and (c) not discriminate, ex ante, between individuals or between works. Unanimity Rule is shown to uniquely satisfy these normative criteria. Unanimity Rule is clearly not the rule envisioned by the courts — an individual could not be found guilty unless every single individual in the community considered the work obscene. The consequence is that any community standard used in practice must violate one of these normative criteria.