[vel0city]

You're misunderstanding my description.

You don't just need "someone". You'll find "someone" say anything, including that the Earth is flat, its 40,000 years old, and we're controlled by lizard people. The standard isn't "someone". You'll find someone who claims a table of ICD codes or a stop sign appeals to their prurient interest and is sexual in nature.

You'd need "the average person, applying contemporary community standards" to say that under the Miller test and have the court/a jury to agree. Not just any person applying any standard.

[dragonwriter]

> You'd need "the average person, applying contemporary community standards" to say that under the Miller test and have the court/a jury to agree.

No, you just need the court to agree, you don't need to actually get the (non-existent, fictional abstraction) of “the average person” to say anything, you just need a judge to believe that.

[reverendsteveii]

in a nation of 400 million people you only need 5 to agree with you (if it's the right 5) and then the 6 of y'all are "the average person, applying contemporary community standards" and the 399,999,994 of us are out of touch deviants.

[reverendsteveii]

You're just kicking the can down the road. "Who decides what's obscene?" "The average person." "Who decides who the average person is?" In your own argument you keep pointing to how arbitrary and abusable this average person standard is as though that makes it somehow a better choice, but at the end of the day the idea of the "average person" is just someone dressing their own personal feelings in a pretty hat. There is no determining who the average person is or what they believe empirically, so the opinion of the person actually making the decision just gets labelled the opinion of the "average person". It does nothing but distance the people making these decisions from responsibility for them because they get to pretend they're just doing what everyone would want. It's 100% arbitrary.

[vel0city]

Would you also argue any standard related to a "reasonable person" to be entirely arbitrary? That's an incredibly similar standard used to determine negligence and similar concepts.

[bdangubic]

name one

[vel0city]

It's a pretty common standard used in a lot of places.

https://en.wikipedia.org/wiki/Reasonable_person

And other similar "vague" concepts arise elsewhere in the law, like someone "skilled in the art".

https://en.wikipedia.org/wiki/Person_having_ordinary_skill_i...