Questions about the legality of simulated images and non-nude photography

IIRC, the jury instructuons ask jurors to use the standards of their community as seen by an average person. They don’t mention state law at all…

Check Smith v USA from 1977. That’s where they explain this.

Read the Miller Test. It’s outright stated in the second prong what is to be defined by the laws of the state it’s defined in.

  • Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest.

  • Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions, specifically defined by applicable state law.

  • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

No. “patently offensive” has to be defined by the law of that specific state for an indictment to proceed and affirmed by a jury to secure a conviction.

If it were that arbitrary, then loli and other forms of niche pornography would be virtually non-existent.

I’m aware of that decision, and the jurisprudence affect that has in the area of obscenity law doesn’t mitigate the degree of control the state legislatures have over what can be considered “patently offensive”.

In Smith, the defendant tried to claim that because the state of Iowa repealed crimes relating to MAILING obscene material, the law was inapplicable, but that was wrong because obscenity still had a definition under that state’s own laws which the material he was charged under fell under.
Federal courts still have to consider such statutes when evaluating a case, otherwise they will not be granted an indictment.

Obscenity is perhaps the only area of law where state law can “trump” federal law by simply not viewing such materials as “obscene”, as the US State of Oregon has been able to do.

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