INTRODUCTION
Many popular media, partisan groups, and political entities (e.g. Attorney General’s Commission on Pornography, 1986) assert that most communities in the United States oppose the availability of sexually explicit materials. These claims have never been tested.
In 1973, the Miller v. California decision of the U.S. Supreme Court established that individual communities had the right to determine for themselves what sexually explicit material would be considered legally obscene and barred from availability if so ruled. Despite the fact that no geographic or political entity was defined as the appropriate community, the ruling set the stage for having so-called “community standards” become central to the prosecution and defense of material under review. Prosecutors argued the item surpassed community acceptance while the defense argued it did not. Surprisingly, few jurisdictions actually ascertained what their community would accept or what should be its standard. In general, prosecutors and defense attorneys let juries or judges decide. Rarely has this been challenged.
Any definition of a community standard raises practical as well as theoretical issues. In most democracies it is the majority that carries. But this is not necessarily the same as a “ community standard” as defined sociologically (Bell, 1977). By the most restrictive measure, a community standard—consensus—exists if 75% or more of the community is in agreement on a particular issue. If 100% of the community agree, there is perfect consensus; if 50% agree and 50% disagree there is perfect “dissensus.” Using this definition, more than three of four voters would have to find any material in question obscene. A majority or plurality, however, might also be selected as the criteria for establishing a community standard.
In 1978, the prosecutor’s office of the City and County of Honolulu, in response to what it thought was a popular cause and community desire, began to call for the arrest of sellers of sexually explicit material. Following several indictments for pornography against their clients, we advised the Hawaii law firm of Shirley and Jordan to ascertain where the community, the Hawaiian island of Oahu, actually stood on this issue. Until 1983 (Herrman and Bordner), no study of a community standard toward explicitly sexual material had appeared. We drafted the survey questions and analyzed the data.
Prompted again by courtroom needs in collaboration with the legal firm of J. Schweigert and Associates, similar surveys were commissioned and conducted in June and October of 1985. These studies were similar to that of 1978 except that the wording of several of the questions was changed to better reflect the wording of the applicable state laws and, for the latest study, the scope of the survey was expanded to cover all the islands of the state.
With the ongoing national controversy regarding sexually explicit material and the pronouncements of the Attorney General’s Commission on Pornography (1986) again calling for the recognition of community standards, these findings seem particularly relevant for national consideration. This is emphasized by the added feature that our studies also asked about the community’s feelings on other issues strongly debated; the death penalty (not allowed in Hawaii), abortion (Hawaii was the first state in the nation to legalize the procedure), and the status of drugs such as marijuana and alcohol. We can thus report on the feelings of the community on several issues and draw significant correlations. Further, we can compare our results with research available from other communities. Most of the surveys reviewed have never before appeared in the scientific literature.
METHOD
Questionnaire: Construction and General Comments
The original questionnaire was developed with particular relevance to Hawaii laws. Questions were worded to enhance clarity and maximize applicability for possible use in court. Pretesting of the questionnaires was done for each of the three surveys. Since the results of all three were similar we report in detail on only the last study.
The instrument starts by identifying the caller and the nature of the call. The majority of the questions asked were closed-ended, but several were open-ended. The bulk of the questionnaire asked for the respondents attitudes and knowledge of the issues. Some questions asked of the respondents’ behaviors. The final pages of the instrument were devoted to demographic questions.
Sampling
The survey initially consisted of telephone interviews based on random sampling for respondents drawn from the island of Oahu. Following presentation in court of the first results, the Hawaii Courts defined the “community” as the entire State (Hawaii Revised Statutes, 1981) and we expanded our sample pool accordingly.
The sample selection method was automatic computer-generated Random Digit Dialing (RDD) for all phones assigned to residences. Estimates by the telephone company are that 96% of Hawaii residences are equipped with telephones. The remaining 4% of households basically represent recent arrivals, lower income households without “lifeline” phones, and highly mobile individuals.
For RDD the computer selects phone numbers automatically. It uses an algorithm choosing numbers assigned to regional prefixes in proportion to the number of possible suffixes used. The program selects from a table of random numbers, checks to avoid duplication, and, after contact is completed, samples without replacement. This random telephone interview method allows for answers to be anonymous and confidential.
The sample size aimed for in each survey, considering the size of the adult population under review (approximately 600,00 persons), was 400 completed responses. Resultant yields are considered reflections of the population within ± 5 percentage points at the 95% confidence level (Kish, 1965). To obtain usable completed interviews, more than 1000 phone calls were made for each survey. The largest cause for noncompletion of phone calls was that the number called was not a working number or there was no answer to the call. Overall, once the call was answered, only 18% of those contacted refused the interview. In our experience this is much less than those who refuse other surveys. Surveys on banking or economic conditions, for example, usually receive about a 50% rejection rate. The reason given by the respondents for their willingness to respond to these surveys is related to the importance and interest they saw in the subject topics. The most common reason for refusal to participate is lack of time or interest.
Sample representation with the total population was compared with data from the 1980 Census of Population (U.S. Department of Commerce, 1980). Overall, our respondent groups had demographic profiles similar to those of the population reported by the census data. Two exceptions are noted.
The most significant difference between the respondent group and the population is the educational level. Our respondents report being more educated than the general population. Particularly notable is the high percentage reporting to have a college education or more. Our interviewers have noted in the past that respondents seem often to upgrade their level of education and we believe this is the case here. Nevertheless, the numbers indicate the respondents may be somewhat more educated than the general population. In addition, the respondents seem to slightly overrepresent adults 35 to 44 years of age, and Caucasians.
Field Methods
Interviewers used for these surveys were professional staff with several years experience doing telephone interviewing. Despite their familiarity with the interview procedures, each interviewer attended a training session specific to these studies. These involved practice interviews with attention to the sensitivity of the issues under discussion.
In all surveys, interviewing was conducted within a week between the hours of 4 p.m. and 9 p.m. on weekdays and between 9 a.m. and 9 p.m. on weekends. With all surveys, interviews were verified by having an interviewer supervisor monitor each phone call. This also allowed for the correction of any problem encountered through the data-collection process. Any faulty interview was removed from the sample pool.
An initial call was made to each phone number. If necessary, that call was followed by up to two additional attempts to contact the household. Call-backs were made to each nonanswering, busy, or respondent-not-home number at times at least two hours different from previous calls to maximize the possibility of reaching eligible respondents.
Legal and scientific concerns raise questions of how well the interviewer and respondent agree on the terms used and the ideas questioned. Informally this was checked for in the normal course of the interview when hesitance or other behavior signaled. Formally, clarity of meaning was checked during the interview by directly asking:
I have been using the words “nudity” and “sexual acts” in the last few questions. What I meant by nudity was pictures or descriptions of total male and female nudity. The term sexual acts meant pictures or descriptions of intercourse and all other kinds of sexual behavior among consenting adults, including sex acts between a man and a woman, two men or two women, or a group of people. When you answered the questions, is that what you understood me to mean or did you think I meant something else?
To this checking question, or one similar to it depending upon the specific survey, 94 to 96% of the respondents indicated that indeed is what they understood. Since respondents might have been reluctant to admit not using something comparable to our definition, the results might be biased but we are not sure in which direction. It would have been better to stipulate this definition at the start of the interview and subsequent studies will do so. Probes of the respondent’s own definitions of nudity and sexual acts, however, almost always were in keeping with our definition, but some were much more imaginative and some less so. The statistical evaluations offered in this report use data only from those who said “Yes” to the checking question.
Data Processing Procedures
Each completed questionnaire was edited, coded, verified, loaded to computer, and analyzed. Basic statistical analysis used the “StatPac Gold” (Walonick Associates, 1986). This program is specifically designed for the analysis of survey data. Where appropriate, chi-square or Spearman rank correlations were used (Siegel, 1956). For consideration of a community standard, as discussed above, straight percentages, not confidence levels, are most often utilized.
Although we collected data regarding the community’s attitudes toward the death penalty, abortion, drugs, and sexually explicit material, only highlights of the first three areas are covered here as these data are interesting for comparison. It is the community attitudes toward sexually explicit materials that are stressed. Since the results were similar for the three surveys, focus is on the results and discussion for the most recent 1985 survey.
RESULTS
Issues
The first question was an open-ended inquiry as to those problems facing Hawaii with which the respondent was most concerned and desirous of government involvement. Respondents could, and most often did, list more than one topic. All surveys found that the three most frequently cited problems were crime (19-59%), housing (10-15%), and jobs/employment/unemployment (8-24%). Other commonly mentioned concerns were illegal drugs (0.6-4%), transportation (7-13%), and education (6-14%). In the three surveys, of 2165 total spontaneous responses from more than 1200 individuals, only 13 (0.006%) mentioned a concern with pornography. Abortion was mentioned in 0%, 1 6%, and 1.2% of the responses. Only 4 persons mentioned the death penalty as an issue.
This lack of concern for the issues of abortion, the death penalty, and pornography was despite the interviewers’ opening comments mentioning these subjects. “We are conducting a survey about community standards in Hawaii. They include topics such as abortion, pornography, and the death penalty.”
It is thus apparent that the four areas we chose to probe were not pressing for most people in the State. However, our respondents still had relatively well-defined opinions on these subjects.
Capital Punishment
Approximately 63% of the respondents were in favor of “bringing back the death penalty for serious crimes”; 23% were against the proposal. The others either responded “don’t know,” or declined to answer.
Drugs
A surprisingly large minority of those surveyed believed that both alcohol and tobacco use ought be illegal even for adults (approximately 10%). A majority (59%), however, thought marijuana ought to be illegal and an overwhelming majority (98%) thought heroin ought not be legal.
Abortion
Three out of four respondents agreed that women should have the right to elective abortion. An equal percentage (75%) felt that neither government nor organized religion should be involved in such a decision.
Sexually Explicit Material: General Attitudes to Availability
To this part of the interview, the following introductory statement was read:
Recently there has been a lot of talk about sexual material being available in Hawaii. I’m going to read a list of some items. Please tell me if you think they should be available to people who want them.
Questions were then asked in a hierarchical order. The steps were in regard to magazines with nudity, books and magazines that show or describe sexual acts, films or videos that show only nudity, films or videos that show or describe sexual acts, live stage acts that show only nudity, live stage sex acts. The series of questions was repeated twice; first with the emphasis on adults and second whether minors (defined as someone not yet 18 years old) should have access to the same. The hierarchical approach was used to allow for the establishment of community limits.
The results are clear and consistent for all three studies. The community was not in favor of allowing minors access to material depicting nudity or sexually explicit acts. Six percent or fewer of the respondents thought minors should have sexually explicit material available to them (p < 0.001).
The findings are equally clear that a majority of respondents had themselves seen all sorts of sexually explicit material (Table I) and by about a 2:1 ratio felt adults ought to have access to any and all such material (p < 0.001, Table II). Somewhat more than one of three persons interviewed would even allow the availability of live stage sex acts. A majority of respondents (56%) thought cable TV stations that show nudity and sex acts ought be available in the City and County of Honolulu (Table I).
Behavior and Attitudes
We asked, in a hierarchical order, if the respondent had personally viewed media that showed nudity or sexual acts and whether the material was found offensive, entertaining, or neutral. The majority of the respondents had seen every type of sexually explicit media. A significant majority (p < 0.05) found the material entertaining or neutral. Fewer than one in three found the video or film material offensive (Table I).
Male/Female
The majority of females as well as males had seen publications with nudes and sexually explicit magazines and books (Table I). Among females that had this experience, a 3: 1 majority found the material either entertaining or neutral rather than offensive (p < 0.05). Males felt this way by a more robust ratio of about 5:1 (p < 0.001). The majority of females voted to allow adults access to all material showing adults in consensual acts (Table II). Males were much more permissive (p < 0.01).
Table I. Behavior and attitudes: male and female comparison (N = 405)
| Male % |
Female % |
Total % |
|
| Respondents who read mags like Playboy, Playgirl or Penthouse, showing nudity. | 94.7 | 78.4 | 86.4 |
| Found it Offensive Entertaining Neutral Don't know/refused |
10.7 33.9 53.1 2.3 |
19.7 17.1 61.2 2.0 |
14.9 26.1 56.8 2.2 |
| Respondents who read a mag or book that showed/described sexual acts | 74.9 | 50.5 | 62.5 |
| Found it Offensive Entertaining Neutral Don't know/refused |
14.3 30.7 52.1 2.9 |
23.5 16.3 59.2 2.0 |
18.1 24.8 55.0 2.1 |
| Respondents who have seen films or videos that showed sexual acts | 69.5 | 46.9 | 58.0 |
| Found it Offensive Entertaining Neutral Don't know/refused |
16.2 36.2 46.2 1.4 |
49.5 11.0 37.4 2.1 |
29.9 25.8 42.5 0.8 |
| Respondents who purchased a magazine or book that showed nudity* | 62.0 | 24.1 | 41.5 |
| Respondents who purchased a magazine or book that showed sex acts* | 31.5 | 13.9 | 22.0 |
| Respondents who bought or rented film or video w/sex acts* | 19.0 | 8.8 | 13.5 |
| Respondents who attended a live sex performance* | 12.0 | 5.6 | 8.5 |
| Respondents who thought cable TV showing nudity and sex acts should be available | 63.6 | 48.5 | 55.9 |
| * Details given for the June 1985 survey. This question was not repeated in October 1985 survey. | |||
Table II. Those who think the indicated sexually explicit material ought to be available to adults (%) (Organized by demographic characteristics)
| ¾ of sample | Book & mag w/nudity | Book & mag w/sex act | Film & video w/nudity | Film & video w/sex act | Stage act w/nudity | Stage act w/live sex | |
| Total | (N = 405) | 79.3 | 66.9 | 76.4 | 68.2 | 60.6 | 34.4 |
| Gender Male Female |
49.6 50.4 |
85.0 73.7 |
70.6 63.4 |
81.3 71.6 |
73.3 63.4 |
66.3 55.7 |
40.6 28.4 |
| Marital status Single Married S/W/D |
26.4 64.0 8.6 |
85.0 76.3 73.5 |
78.0 61.7 64.7 |
88.5 72.1 67.6 |
82.7 62.5 61.8 |
69.2 57.9 55.9 |
42.3 32.1 29.4 |
| Age 18-24 25-34 35-44 45—54 55- |
13.3% 28.1% 26.4% 11.1% 21.0% |
90.6 85.0 80.2 81.8 60.5 |
81.1 72.0 69.3 56.8 52.6 |
90.6 79.4 78.4 75.0 60.5 |
84.9 75.7 69.3 63.6 47.4 |
69.8 61.7 61.4 70.5 46.1 |
39.6 31.8 37.6 43.2 25.0 |
| Ethnicity Caucasian Chinese Filipino Hawaiian Japanese Other/mix |
41.5% 4.9% 8.9% 14.8% 21.2% 8.7% |
82.7 84.2 83.2 71.9 76.3 85.7 |
71.0 68.4 70.0 61.4 66.3 71.4 |
80.2 78.9 76.7 66.7 77.5 78.6 |
73.5 68.4 70.0 59.6 76.5 71.4 |
64.2 52.6 66.7 57.9 65.0 42.9 |
32.7 31.6 36.7 35.1 38.8 35.7 |
| Religion Buddhist Catholic Mormans Protestant Christian Other None |
8.4% 29.4% 2.2% 20.5% 19.5% 3.0% 15.3% |
66.7 86.5 22.2 81.7 72.0 66.7 90.0 |
66.6 68.5 22.2 69.5 56.0 55.6 81.7 |
76.7 76.6 22.2 80.0 68.0 66.7 90.0 |
63.3 67.6 11.1 73.2 61.3 55.6 85.0 |
56.7 64.0 11.1 65.9 45.3 66.7 78.3 |
33.3 36.0 0.0 35.4 24.0 44.4 48.3 |
Marital Status/Age
Those who were single were significantly more permissive about sexually explicit materials than those married (p < 0.01, Table II). Those married were not significantly different in permissiveness from those separated, widowed, or divorced. And, in almost linear fashion, as the respondents were older, while still voting permissively, they voted so less frequently. Only among those 55 and older were there more respondents more likely to vote against access to sexually explicit videos or live sex shows (Table II).
Ethnicity and Religion
Among every ethnic group, the majority voted to allow adults access to any sexual material (Table II). Caucasians, Chinese, Filipinos, and those considered Other were generally more permissive; Hawaiians and part-Hawaiians least so.
A majority of Buddhists, Catholics, Protestants, and Others had seen every type of sexually explicit material and a majority of them voted to allow everything but live sex acts on stage (Table II). Those professing to belong to no organized religion were most permissive in allowing access to sexually explicit material; more than 80% voted that adults have access to books or magazines with sexual acts depicted. Our small sample of Mormons (n = 9), on the other hand, were most conservative (p < 0.01). Only 4 admitted to having read a magazine like Playboy and none admitted haying seen a sexually explicit magazine or book; only 1 admitted to having seen a sexually explicit film or videotape.
Other Factors
To our question of how they felt their answers would be construed, about half of the subjects felt they were middle-of-the-road, whereas a quarter felt they were conservative and the other quarter liberal.
Those with more education were more permissive. Those with more income, however, were not more permissive. But even among those in the lowest income group or in the group with least education, the majority voted to allow adults access to sexually explicit materials.
DISCUSSION
Hawaii
Our studies are the first statewide surveys of community standards known. In most cases, the responses were slightly more permissive in 1978 than in 1985 and the two in 1985 were almost identical. This similarity adds to the reliability of our results.
In all three studies, spaced over 7 years, the majority of the community respondents found crime, housing, jobs/employment, transportation, and education among their greatest concerns. The concern with crime seems reflected in the desire of the community to bring back the death penalty. Presently, 37 of the 50 states retain the death penalty for murder. In Hawaii, a state since 1959, capital punishment has not been legal since 1957 when the Territorial legislature repealed the then existing law. A recent Gallup Poll (U.S. News, 1989) found 79% of Americans supported capital punishment.
In addition to maintaining that heroin and strong drugs should be illegal, about 10% of the voters would have both alcohol and tobacco illegal. Somewhat surprising, in view of its pervasiveness as an agricultural commodity and a recreational drug here in Hawaii, is that a majority voted to keep marijuana illegal. At the time of our surveys, possession of less than an ounce was legally a petty misdemeanor.
With the restrictive votes in mind, it is significant that a majority of all respondents, regardless of religious affiliation (with the exception of Mormons), ethnic background, or gender would consistently allow adults access to sexually explicit material in the form of magazines, books, films, or videos. They would also allow access to such material on cable television.
These permissive votes in regard to sexually explicit material were not without reservation. The community does have standards beyond which sexually explicit material would not be welcome. Respondents roundly voted against sexually explicit material being available to minors, even that depicting only nudity. And the majority of the community did not think live sex acts on stage ought to be allowed. But aside from this, a restrictive community standard for adults could not be found.
The following caveats are noted. About one in five respondents, when asked in an open-ended question about what types of explicit materials they thought should be outlawed, expressed that, even for adults, child pornography should be illegal. One in 11 thought sexually explicit material showing violence should be illegal. Some 5% of those interviewed thought media that depicted “perversions” (the term they used and left undefined) should not be legal; 2% thought depictions of homosexuality should be illegal. Where any particular interviewee would draw the line, however, was idiosyncratic. Consideration of these figures might be made while recalling that some 10% of our respondents would have both tobacco and alcohol declared illegal.
Our population responded more conservatively with increasing age. This may be a reflection of their own decrease in sexual activity with age (Kinsey et al., 1948, 1953) or may mirror a true changing perspective.
The surveys reveal that the majority of respondents were not naive about the nature of the sexual material discussed. The majority of those interviewed had seen erotically explicit materials including X-rated films or videos, often obtaining it themselves. Only a minority found the material offensive. It is anticipated that the increasing availability of home VCRs will correlate with an increase in personally acquired explicit material.
Differences between male and female in their experiences and attitudes toward sexually explicit materials, with one exception, were the most significant found in our surveys. Gender differences were greater than differences among religions, ethnic groups, education, or other factors investigated (Table II). The one exception is in regard to the experience and attitudes of the Mormon respondents.
Since fewer than one third of our respondents found even the most sexually explicit material offensive and about two thirds felt that the sale of explicit magazines, books, or films to adults ought to be legal, our findings indicate no community readiness to limit adults’ access to sexually explicit material. Further, before such censorship would be legally appropriate, a dramatic change in attitude would have to occur.
One demonstration that such a change has not occurred in the interval since our 1985 survey and 1988, is a statewide poll sponsored by the Honolulu Advertiser newspaper and Hawaii television station KHON (Keir, 1988), using techniques similar to ours. It found that to the direct question, “Should the sale of pornographic material be allowed to adults?” a majority of respondents, 58%, voted Yes. The use of the term “pornography” instead of “sexually explicit material” seemed to evoke a more conservative response but it did not alter the findings significantly.
Regional, Non-Hawaii, Community Surveys
Is Hawaii unique in its attitudes toward sexually explicit material? Studies of community standards regarding such materials are not numerous but where conducted they are consistent in their findings and similar to ours. Few of these have been published in the scientific or legal literature and a review seems appropriate. The format of the studies and questions asked varied widely. The following community surveys, all that could be found since the Miller v. California decision of 1973, are listed chronologically with smaller communities first.
Atlanta
The earliest reported community survey, this Georgia study of 750 respondents (Herrman and Bordner, 1983) found little consistency between personal standards and the perception of community standards. Of the five categories of sexual activity asked about, only depictions of rape were personally offensive to more than 60% of the respondents. Portrayals of total nudity, adultery, group sex, and homosexuality were less often seen to be beyond standards of personal acceptance. The researchers found no community consensus against the material.
Phoenix
The Arizona Republic reported on a RDD survey of the city and suburbs of Phoenix; Maricopa and Pima counties (Sowers and James, 1985). A majority of respondents, 87%, voted to allow adults access to sexually explicit materials for use in their own homes.
Of the Phoenix area respondents, 13% acknowledged buying or renting a sexually explicit movie or video cassette in the past year. This figure represents 62% of the households with video cassette players. More than one in five respondents had gone to see an X-rated movie in the past 12 months. Of the respondents, 61% felt X-rated movies were entertaining; 41% said that such films could improve the sex lives of couples.
The Phoenix area respondents, while not objecting to sex, overwhelmingly (98%) found that sexual violence was obscene. The newspaper noted that Arizona law, unlike Arizona citizens, considers only explicit sex to be obscene, “no matter how much blood and violence is included.”
San Francisco Bay Area
Residents of the nine counties surrounding the California Bay area, were polled by RDD (Schreiner and Lempinen, 1986). Of the respondents, 68% identified themselves as “born-again Christians or Catholics”; only 9% did not claim a religious preference. In political ideology, 33% listed themselves as conservative, 24% as middle-of-road, and 16% as liberal.
Only 23% felt it was always or almost always wrong to watch an X-rated TV movie, whereas 75% felt it only sometimes or never wrong. A minority, 26% of the respondents, thought there “should be laws against all distribution of pornography.” Only 27% of the respondents thought attending an X-rated nightclub act was “always or almost always wrong,” 69% said it is “only sometimes or never wrong.” A majority, 62%, of the respondents thought there should be laws against the sale of pornographic material to minors; 10% thought there ought be no laws against any pornography sales.
Valparaiso, Indiana
The county prosecutor, Daniel Berning (1986), conducted a RDD survey. A majority, 68% of those responding, claimed they did not want to see those selling or renting adult video materials charged or prosecuted for distributing such products to adults.
Bloomington, Indiana
Weinberg (1986) used RDD techniques to survey Monroe County for evidence in trial. The majority of those polled, 72%, found it acceptable that video stores rent or sell X-rated material to adults; 67% thought the law should not prevent interested adults from obtaining and viewing X-rated material from any source. Some 67% of those polled admitted to having seen X-rated magazines or movies. When those respondents who had admitted viewing the materials were asked: “Did they appeal to or create a shameful or morbid interest in sex, nudity, or excretion for you?” 90% said “No.”
Corpus Christi, Texas
A community survey conducted by Corpus Christi University (1987) showed that 88% of the respondents favored adults having access to sexually explicit adult materials.
Midwest
Benson (1987) reported having conducted surveys of communities that range from predominantly lower income blue-collar families to predominantly upper income professionals. The studies were in Michigan, Indiana, Ohio, and Kentucky in collaboration with Scott. Among all the studies there was a consistency in responses with more than 70% of the respondents endorsing the right to see such material.
Scott et al. (1990) reported on their surveys of Cincinnati, Columbus, and Indianapolis. To the question “Do you believe you should or should not be able to see any showing of actual or pretended sex acts in adult movies, video cassettes, or magazines if you should want to?” the responses were in the affirmative by votes of 77, 80, and 68%, respectively. They also found the respondent’s personal standard is the best predictor of his or her perceived community tolerance.
Scott (1989) recently reported on additional studies. He surveyed the following counties: Florida (Dade); Indiana (Marion, Porter, Vanderburg); Kentucky (Campbell, Kenton, Jefferson); North Carolina (Mecklenburg); Ohio (Allen, Franklin, Hamilton, Lucas); the Northern Federal District of Virginia; and the Western Federal District of Tennessee. The majority of respondents in each of the communities surveyed were tolerant of explicit sexual material. The acceptance varied from a high of 79% in a 1986 survey of Dade County, Florida, to a low of 65% in a 1987 survey of Allen County, Ohio.
Statewide Community Referenda
Utah. Utah was the first state to put a community standard “decency” referendum to a vote (Fahy, 1984; Seldin, 1984). The referendum was called due to the prompting of a conservative faction concerned with an increase in sexual material on cable television. The voters were asked whether they “supported the jailing or fining of cable company executives who knowingly allowed ‘indecent material’ to be shown via cable programming.” Indecent material was defined as including nudity, scatology, or sexual acts of any type. The voters of Utah, even with its large Mormon population, rejected the proposal 61% to 39%. In Salt Lake county the vote was 67% against.
Maine. On June 10, 1986, Maine became the second state in the nation to put a referendum regarding sexually explicit material to a vote. The ballot read, “Do you want to make it a crime to make, sell, give for value or otherwise promote obscene material in Maine?” To this basic question, 72% of the voters answered “No” (Maine, 1986).
Considering that Utah and Maine are known to be politically Republican and conservative and have voters more than half of whom are Mormon, Roman Catholic, or Christian fundamentalist, we might consider how Hawaii would compare. The comparison is interesting since Utah, Maine, and Hawaii are the only three states for which such complete information is available.
Two issues must be considered. First, the voters in Hawaii generally vote Democratic, have a significant population whose background is Asian, Buddhist-Shinto, Hawaiian, or otherwise non-Christian, and have a religious and ethnic heritage where sex is seen as a positive force. The second issue is in regard to methodology. The voters of Utah and Maine were able to express themselves in the privacy and sanctity of the voting booth. In Hawaii the survey respondents gave their answers over the phone. Although this too was private and confidential, this method does not have the perceived protection of the private ballot. The tendency of a “phone vote,” we hypothesize, is to be more conservative than a “voting booth vote.” If Hawaii voters were queried by secret ballot we think they would be more permissive than they were on the phone. In this vein, face-to-face (nonanonymous) surveys about sexually explicit material would probably yield more conservative results.
In the only other statewide RDD studies known Michigan and Texas were surveyed in 1985 and 1987, respectively (Scott, 1988). Michigan was tolerant of sexually explicit material with a vote of 77% and Texas with a vote of 71%.
National Surveys
Davis and Smith (1986) and Smith (1987) have reviewed National Opinion Research Center data from eight national surveys conducted almost yearly from 1973 to 1986. With little yearly variation, never did more than 43% of the respondents agree that “there should be laws against the distribution of pornography whatever the age.” This is more conservative than found in Hawaii. However, only a maximum of 54% would agree to restrict such material to those under the age of 18. That is much more permissive than Hawaii.
A national Gallup RDD survey was conducted for Newsweek (Gallup, 1985). Of 1020 respondents interviewed, only sexually explicit material depicting violence would be banned by a majority. Other sexually explicit material, whether magazines, film, or X-rated video cassettes, were considered acceptable for adults to view. Among the respondents, more than 33% had bought a magazine like Playboy, more than one in eight had bought a magazine like Hustler, and about 9% had bought or rented an X-rated movie or cassette in the last year. A majority of the respondents also thought community standards ought to be less strict or kept as they are. A minority, 43%, thought obscenity laws should be stricter.
Time reported on a national RDD survey conducted for them by Yankelovich et al. (1986). Of 1017 Americans interviewed, the survey found “Whether or not they consider some forms of pornography to be harmful, 78% of the respondents agree either strongly or in part that people should have the right to buy it. … Most people like to look at pornography at least occasionally.” Indeed, 58% had seen magazines with heterosexual intercourse, 46% had seen homosexual acts in magazines, 62% had seen X-rated movies, 69% had read or seen books describing sex acts, and more than 80% had seen nudes in movies and magazines.
A national write-in survey of 4246 readers of Consumer Reports, aged 50-93, was conducted in 1978-1979 (Brecher and Editors, 1984). The respondents were asked about their attitudes toward pornography. Pornography was defined in this survey as “sexually explicit verbal or visual material specifically designed to produce sexual arousal.”
Only 38% of these respondents thought communities had the right to ban pornographic materials, 47% were opposed to such a ban, and the remainder were neutral on the issue. When asked about their own use of pornographic material since the age of 50, the surveyers found that 37% of the females and 56% of the males had tried it. Of these, 81% and 91%, respectively, claimed to have “liked it.” Of those who have not used pornography since the age of 50, an additional 9% of the females and 12% of the males expressed a desire to try it.
When asked about use of “hard-core pornographic films or photos” after age 50, 18% of the females and 42% of the males admitted use. Of these, 58% of the women and 89% of the men claimed to have “liked it.” The researchers concluded: “Their answers make it clear that there is a substantial interest in pornography among our (older) women and men.”
Americans for Constitutional Action (1986), an organization based in Washington, DC, was reported to have conducted a national survey of 1002 adults. Of their respondents, 74% identified as born-again Christians. The majority strongly endorsed the right of adults to purchase sexually explicit materials.
Comments of Legal Relevance
The survey method of assessing community standards has relevance to the use of juries to determine such. The choice of 12 individuals may or may not reflect the community at large: the jurists may be unlike the community in many significant respects (Alker et al., 1976).
One of us (Dannemiller, unpublished) has studied the composition of juries in Hawaii. It was found that the determining factor of whether a prospective juror would willingly serve was whether there would be compensation for time away from work and if the absence from work was acceptable to his/her supervisor. Self-employed individuals and those with responsible positions were least likely to serve. Those likely to serve in Hawaii tend to be unemployed, older than the average community adult, and have less education. They are also likely to be clerical or blue-collar workers for the City and County. This latter situation may put them somewhat in a conflict-of interest with their association with the City and County prosecutor.
Jurors are often not presented with sufficient information to fulfill their responsibility. According to law the jury must determine whether the material at issue exceeds the community standard, not how the jurist feels about the material at issue. To do so, the jury must be given information defining the community standard and how the standard was determined.
Juries are limited in their determination of a community standard in yet another way. Individuals voting in private are safe in being honest as to their thinking and individual consciences. Jury members are not. They must be mindful of the other members of the jury and their collective responsibility. And after the trial they are subject to community harassment.
Following the completion of our three surveys the results were presented in court for more than a dozen cases. Reception has been mixed. Juries, perhaps swayed more by their own sense of public exposure and concern for what they consider would merit community approval, and less impressed with the value of a survey or the legal implications of its meaning vis-à-vis the establishment of a community standard, have three times ignored the survey results and voted for conviction. These cases were reversed on appeal. The Hawaii appellate court has since stated that the community standard must be ascertained and referred to in the decision-making process (State v. Kam, 1986).
American Jurisprudence (1965), an encyclopedic guide to the practice, techniques and tactics used in preparing and trying cases, counsels that in obscenity litigation the prosecutors usually want a jury trial but the defense should seriously consider waiving a jury. They state: “On the whole, judges will acquit more often than juries. … If defense counsel is undecided … waive the jury.” Not all judges, however, are convinced that our surveys accurately reflect the community standard. In cases where our data were presented in nonjury trials, the value of our surveys was considered significant in four cases by two judges and the defendants were acquitted. In five cases heard by two other judges, our community survey was ignored. These cases were all reversed on appeal. In all cases both authors were called as expert witnesses.
One might ask then: “How is a “community standard” to be established for legal purposes? If anonymous surveys of the type mentioned here are not acceptable then perhaps each state will have to resort to actual voting. Until that happens, prosecution for pornography offenses seems unwarranted. As a cornerstone of our legal system holds “an individual is innocent until proven guilty,” it seems that the prosecutor must first ascertain the community standard and then show that any publication, product, or act at issue had exceeded it. Doubt as to this should lead to a finding of not guilty. Pornography crimes are the only ones in which the accused does not know if a crime has been committed until the jury or judge rules. A thief or forger, for instance, knows beforehand that his actions are illegal.
Most significantly, a recent review of the Hawaii pornography statutes by the Supreme Court of Hawaii (Hawaii, 1988) unanimously found that the State Constitution guarantees a right to privacy which extends to owning, using, and purchasing pornographic materials. It further ruled the State has not demonstrated a compelling government interest in infringing upon this right. The local Federal Attorney, however, has said he would not accept this ruling for material coming into the state (Catterall, 1988). How this would be argued in court, however, considering our community standard on privacy has not been tested.
It is emphasized here that under discussion is not whether any restrictions should be placed on the availability of pornographic material; e.g., should it be sold in public shopping malls or only in so-called red-light areas. Many communities might somehow regulate distribution. Also not at issue for the present study is how Hawaii and other regions might vote on such nuances as whether, in a community, pornography ought be tolerated, permitted under certain circumstances or illegal in every instance. The wording of survey questions is a study in itself (see Smith, 1987).
One last note: Diamond and Peacock (1979) reported on a nationwide study they made on the availability of sexually explicit materials in academic libraries. It is common knowledge that libraries have primary source materials available on many topics that might be considered obscene by large segments of any community (e.g., racism, how murder or other crimes are committed, terrorism enacted or riots started, how political or religious factions of all stripes are mobilized to hate). Of those institutions responding, the Kinsey Institute for Sex Research at Indiana University was the only university or college library which had among its collections, available to students or faculty, primary sexually explicit material that might legally be considered obscene.
Thus, pornography, alone among all issues of scientific or social debate, could not be studied using primary source material available to faculty or students at any responding university in the country, save one. Considering the magnitude of concern regarding this issue, and the overwhelming vote of communities against censorship to adults of sexually explicit materials, it certainly seems time to reexamine this situation.
CONCLUSIONS
We have attempted to ascertain some community standards in Hawaii. Particularly under review was the availability of sexually explicit material.
The community of Hawaii has voted in favor of a death penalty, against the legalization of drugs—even marijuana, and for maintaining abortion legal and without restriction. They have also strongly voted against the availability of sexually explicit material for minors. Despite this conservatism in other matters, in relation to sexually explicit material for adults, they have consistently voted to retain its availability.
The majority of Hawaii respondents had seen and acquired a wide range of sexually explicit materials and only a minority considered what they had seen or could imagine, offensive for adults. The majority think adults ought to have access to any material they desire. If it were to be restrictive, it would be in regard to material that utilizes children or depicts violence.
Considering voting results and surveys elsewhere, our findings for Hawaii reflect similar feelings throughout the country. Obviously the wording of the question is crucial. Respondents are likely to be more permissive for themselves than for others or the community at large. Nevertheless, no matter how presented or whether polled for neutral agencies or for the prosecution or defense, the results have been comparable. As far as we can ascertain, no community of city, county, state, or the nation, anonymously surveyed by any reputable agency or government, has yet voted to restrict from adults the availability of sexually explicit material depicting adults in consensual activity.
The findings from Hawaii and elsewhere illustrate, despite the glib or strident comments of some, that there exists a permissive consensus throughout the United States in regard to adults having access to sexually explicit material.
ACKNOWLEDGMENTS
This work is dedicated to Myer Symonds, Esq. (1910-1989) who devoted himself so diligently to the defense of First Amendment Rights.
Connie Brinton and Chizuko Ikegami are thanked for their help in organization of parts of the study and their library research.