Who is the Average Person? - Millerdoes not define "average person," but simply repeats that phrase from Roth in a slightly altered context as indicated above. The charge to the jury approved in Roth states, that such a person is the "average person in the community" determining that average person by considering all those whom the material is likely to reach and those in all segments of the community. The case of Alberts v. California, decided in conjunction with Roth, identified the "normal person" as the criterion. Roth mentioned that the new tests for obscenity (including the average person test) had been developed in case law and quoted 13 cases decided between 1930 and 1954, as the source cases for its new test. Among these cases was the often cited case of United States v. One Book called "Ulysses", 5 F.Supp. 182 (S.D.N.Y. 1933), aff'd, 72 F.2d 705 (2d Cir. 1934) wherein it was stated that the test is its effect upon a person with "average sex instincts." Another case cited by Roth was United States v. Levine, 83 F.2d 156 (2d Cir. 1936) which held that you consider its effect "not upon any particular class, but upon all those whom it is likely to reach." Cited also was American Civil Liberties v. Chicago, 121 N.E. 2d 585 (Ill. Sup. Ct. 1954), appeal dismissed, 348 U.S. 979 (1955) for the rule that you consider its effect on the "normal average person." The average person in the community is neither the particularly susceptible or sensitive person nor a totally insensitive one (Miller v. California). Nevertheless such persons are part of the community to be considered in determining who is the average person.

Is the Average Person the Average Adult? - The United States Supreme Court has consistently used the phrase "average person" and has not used the phrase "average adult." "Person" by definition, includes men, women and children. Roth's charge to the jury indicated that the community was to be composed of "young and old," and "men, women and children." Roth and Levine, indicate that all those whom the material is likely to reach would be considered in determining who is the average person. This, of course, would frequently include more than just adults. Since the Roth charge speaks of determining whether it would arouse sexuality, children of tender years would be excluded from the base from which the "average person" would be drawn. In addition, all those whom the "reading" material would be likely to reach would not normally include children of tender years.

The Function of the Average Person in Relation to the Role of the Trier of the Fact - The jury, or the trier of the fact, is told in Miller, to determine "Whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest." It is quite obvious that the test (at least as set down in Miller) does not ask the trier of the fact to determine if the work appeals to the prurient interest of the average person. The juror, or the court, is apparently told to determine if the average person in the community would decide that the book or motion picture on the whole appealed to the interest in prurient matters under present day standards. In making the required "determination" the United States Supreme Court said in Smith v. United States, 431 U.S. 301 (1977): "A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes ... Hamling v. United States, 418 U.S. 87 at 104,105, ... Pinkus v. United States, 436 U.S. 293 (1978) tells us that in evaluating the hypothetical "average person" the juror is to determine the collective view of the community as best he can. It is to be noted that while Smith says that patent offensiveness is also to be judged against contemporary community standards, it left this task to the jury without specifically utilizing the hypothetical average person in the determination.

Appeal to the Average Deviant or Homosexual - Mishkin v. New York, 383 U.S. 502 (1966) indicates that a charge to the jury that the deviant material may be judged on its appeal to members of deviant groups is proper and Pinkus says that nothing prevents a court from giving an instruction on prurient appeal to deviant sexual groups as part of the instruction pertaining to appeal to the prurient interest of the average person when the evidence supports such a charge.

Purpose for Using Average Person as Measuring Stick Of Community Standards - In Mishkin, the Supreme Court tells us that the concept of "normal person" or "average person" set forth in Roth-Alberts was included for the essentially negative purpose of not using the "most susceptible person" as the criterion. This would seem to indicate that the Supreme Court would allow great flexibility in applying the concept of "average person" as long as this objective is achieved.

Average Person as Judge of Prurient Appeal - The average person comes into the formula as the judge of appeal to the interest in pruriency and not as the object of that appeal. Two Federal Circuit Courts have considered the dichotomy and have held that the material need not appeal to the prurient interest of the average person and that he or she is the judge of the appeal. There are numerous cases that simply use the Miller language whether the average person "would find" that the material appeals to the prurient interest without adverting to whether or not the material appeals to the prurient interest of the average person. Since prurient appeal is sometimes referred to as an abnormal or morbid interest in sexual matters, it is anomalous to ascribe such sentiments to the average person. United States v. Guglielmi, 829 F.2d 451 (4th Cir. 1987), cert. denied, 108 S.Ct. 731 (1988). The fact that to be obscene the average person must find the material patently offensive also militates against the concept of appealing and implies that the use of the word "impact" or "effect" on the average person is used in the sense of impact or effect on him or her as judge of the interest in prurient matters.

Third Prong of Miller-It was made clear by Pope v. Illinois, 107 S.Ct. 1918 (1987) that the average person was not to be utilized as the judge of literary, artistic, political or scientific value.

To see all of the cases in the Obscenity Law Reporter on "average person," you can download a PDF version of this chapter. (438 KB file size)