A book publisher decides to reprint a novel, The Genius, by Theodore Dreiser, considered by many literary experts to be one of the leading writers of the early 20th century. A district attorney (running for reelection) prosecutes a local bookstore owner under the state’s obscenity laws for selling a copy of the reprinted novel. The basis of the prosecution is that the book contains the following passage: “She accepted first the pressure of his arm, then the slow gentleness with which he caressed her. Resistance seemed almost impossible now, for he held her close—tight within the range of his magnetism. When finally she felt the pressure of his hand upon her quivering limbs, she threw herself back in a transport of agony and delight. ‘No, no, Eugene,’ she begged. ‘No, no! Save

Question

me from myself. Oh, Eugene!’” A jury found the book obscene based on that excerpt (the only part of the book to which the district attorney objected). Will that conviction be upheld on appeal? Why or why not? Discuss the complete test a court would apply.

What will be an ideal response?

Answer 1

An appellate court would use the Miller v. California test to determine if the book is obscene: (a) Would a reasonable person, applying contemporary local community standards, find that the work, taken as a whole, appeals to the prurient interest in sex? The quoted passage alone could not appeal to the prurient interest in sex in a reasonable person; that is, it would not sexually arouse a reasonable person. And if that is the only passage in the book to which the district attorney objected, the work was not considered as a whole. That normally would be all a court would need to overturn the conviction. But on the chance that the appellate judges answer this part “yes,” consider the rest of the Miller test. (b) Does the work depict in a patently offensive way sexual conduct specifically defined by applicable state law? Even if a jury found the passage to be patently offensive (i.e., “hard core” material), an appellate court would reject that finding. Under Jenkins v. Georgia (the “Carnal Knowledge” case), only “ultimate sex acts” or “lewd exhibition of the genitals” would be patently offensive. (c) Does the work lack serious literary, artistic, political, or scientific value? Certainly the defense attorneys could get many experts to testify that Theodore Dreiser is a major American author, and that any of his works, including The Genius, has serious literary value. The jury’s decision would be overturned on appeal.