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§ 944.21, Obscenity – constitutionality – jury instructions – selective prosecution – prevailing community standards

County of Kenosha v. C & S Management, 223 Wis.2d 373, 588 N.W.2d 236 (1999), on certification
For C & S: Robert R. Henak, and Shellow, Shellow & Glynn


  • Obscenity statute, Wis. Stat. § 944.21 (1995-96), survives freedom-of-speech and void-for-vagueness challenges.
  • Expert testimony on community standards isn’t constitutionally required; telephone survey wasn’t relevant, largely because it didn’t convey the explicitness of a video, therefore was properly excluded from evidence.
  • The prosecutor defensibly singled out C & S for obscenity charge, leaving other outlets unprosecuted, given “its prominent location at the entryway to the state[.]”
  • Instructional modifications of the standard for obscenity set by Miller v. California, 413 U.S. 15 (1973) (the instructions added the adjectives “unhealthy, unwholesome and degrading” to the options of “shameful or morbid interest in sex….”) didn’t encompass protected speech – the various definitions are synonymous with “shameful” and/or “morbid” – therefore weren’t inaccurate, and didn’t mislead the jury.
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