Community Standard — Indecency

Professor Yung posts and asks Which Community Standard? The question relates to purchasing of alleged obscence materials across state lines.

For courts-martial, the community standard question is also important for allegations alleging indecency or obscenity. It would be beneficial for a service-member being prosecuted at court-martial for an incident in the local town to argue the alleged acts or items are not indecent according to that community standard. Not so fast. The military has it’s own community standard. It’s basically the most restrictive, and some.

In United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996), the military judge incorrectly instructed the Members (jury) that:

[O]bscenity is to be judged from the standpoint of “our nationwide community as a whole.” (R.679) He went on to state: that is to say, by society at large or people in general; . . . you are to consider the community as a whole, young and old, educated and uneducated, the religious and irreligious.
Id. at 425.

The court went on to say that:

We agree that an Air Force community standard was most likely the appropriate community in this case. However, we are not prepared to state unequivocally that an Air Force community standard is the one to apply when the conviction is based upon the U.S. Code. The standard to be used in this case may be the entire community of subscribers to the AOL service or the members of AOL who use a specific bulletin board. Contrary to the analysis in Thomas rejecting application of a cyberspace-community standard to the distribution of obscenity, such a community standard may be just as functional as application of a service-wide standard because of the identifiable, yet expansive and more uniform, nature of a technologically connected community.

Nevertheless, we are satisfied that using an amorphous nationwide standard is more favorable to appellant than a homogeneous Air Force standard would be. A more specific instruction would not have changed the result.

(Citations omitted.)

They did not say a homogeneous military standard. So does that really leave open a different standard for the Navy, Army, Coast Guard, Marine Corps? Probably not. But does it in fact state a correct standard? Isn’t it really just imposing what the military hierarchy (or old fogies in the Pentagon some would say) want to have considered indecent? It does lead to consistency so that the Soldier in Thailand isn’t treated better than a Soldier in [x]. But in the process does it not in the end become a restriction on speech in particular?