recent opinion handed down by the nation's highest court, rather than contributing to clarity, has actually compounded the confusion.
In 1957, the United States Supreme Court decided the case of Roth v. United States, 354 U. S. 476. After holding that obscenity is not within the area of constitutionally protected speech or press, the court stated:
"The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.[1] The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity."
Following this decision, a number of states, through their legislatures, adopted the italicized standard. In 1961, the Arkansas General Assembly passed Act 261, which defines the word, "obscene," in the exact language set forth in the Roth case.
Appellants, for reversal, rely upon the more recent case of Jacobellis v. Ohio, 378 U. S. 184, and assert that this, case makes clear that the "contemporary community standards," mentioned in Roth, actually refers to a "national" community, rather than a "local" community. Appellants vigorously argue that Jacobellis determined conclusively that the "national community standard" must be applied. We cannot accept this contention, since it does not appear that five judges, constituting a major-
- ↑ Emphasis supplied.
