mechanism for ascertaining what they are, sorting them out and selecting one as controlling. The inevitable effect of this is that each member of the Court will apply his own standard. But that is historically the role and function of the jury. The jury is the mechanism provided by the cothmon law for determination of questions involving the presence or absence of due care, reasonableness, prudence, decency and other concepts reflecting the common sense and/or conscience of a community. And the jury can do it better than the members of our highest tribunal. But, of course, the jury could not and would not reflect a national standard, because such a standard is a fiction pure and, simple."[1]
Summarizing the views expressed in the several Jacobellis opinions, it is obvious that the court, in the final analysis, determines obscenity cases de novo, but the standard applied is not so readily apparent.
The stories and pictures in the eight magazines in question, in the main, deal with the theme of sex. The pictures generally portray side or back views of young females, totally unclad, or front views of the girls, unclad from the waist up. A large number of the stories, or articles, deal with adultery or fornication, the number varying in the several magazines.[2] In fact, all can be classified under the general term, "girlie" magazines. A few examples of the type of stories, or articles, found will illustrate the general theme. For instance, the following is an excerpt from a story in Ace, entitled, "On the Level:"
"The window was open.
"I tugged at the shade and it snapped up with a swish, and there I was gazing at the two most perfect
- ↑ 13 Kan. L. Rev., P. 117, (1964) also contains an interesting article entitled "Obscenity: The Search for a Standard."
- ↑ No effort is made in appellants' briefs to point out differences in the articles, or pictures, from the different magazines, i.e., one magazine might possibly contain obscene material, but another particular magazine does not. It is simply the contention of appellants that none of the magazines can be classified as obscene, under the law as declared by the United States Supreme Court; a separate argument is presented by Gent, which is represented by different attorneys.
