Has Smith v. United States Changed the Test From Community Standards of Decency to Community Standards of Tolerance?
– A statement in Smith v. United States to the effect that “community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in the community,” and “that obscenity is to be judged according to the average person in the community rather than the most prudish or the most tolerant,” have caused some confusion about whether patent offensiveness, is to be measured by the average person’s reading of community standards of decency or community standards of tolerance. It seems, however, that if the Court were to make a change in the definition of “patent offensiveness” from indecency to tolerance it would have specifically done so and not done it in an off-hand manner. Manual Enterprises v. Day Which Defines Patent Offensiveness is a Binding Precedent – As has been outlined, Manual Enterprises defines patent offensiveness as “so offensive on its face as to affront current community standards of decency.” This definition has never b
