Jorge Canal was convicted of knowingly disseminating obscene material to a minor in the District Court, Dallas County. The Court of Appeals affirmed. The Supreme Court of Iowa also affirmed.

. . . On May 15, 2005, C.E., a fourteen-year-old female attending high school, received two photographs via e-mail from Jorge Canal. Canal was eighteen years of age and attended the same school when this incident occurred. One of the photographs was of Canal’s erect penis; the other was a photograph of his face. A text message attached to the photograph of his face said, “I love you.”

C.E. and Canal were friends and had known each other for roughly a year before Canal sent the photograph of his erect penis . . . C.E. testified the photograph was sent only as a joke because some of her friends were doing it. She further testified that she did not ask for the photograph as a means to excite any feelings. Finally, C.E. testified that she asked for a photograph of Canal’s penis, but not his erect penis. C.E.’s mother, who checked her daughter’s e-mail and internet use, found the photographs and forwarded them to her husband.

C.E.’s father then showed the photographs to a police officer . . . The State charged Canal with violating Iowa Code section 728.2, for knowingly disseminating obscene material to a minor.

The case was tried to a jury. The jury found Canal guilty of knowingly disseminating obscene material to a minor. The court imposed a deferred judgment, a civil penalty of \($250\), and probation with the department of corrections for one year. The court also instructed Canal that he must register as a sex offender and ordered that an evaluation take place to determine if treatment was necessary as a condition of his probation.

. . . Canal did not object to the instructions given to the jury at trial . . . It stated the elements of knowingly disseminating obscene material to a minor as follows:

1. On or about the 15th day of May, 2005, the defendant knowingly disseminated or exhibited obscene material to C.E.

2. C.E. was then under the age of eighteen.

3. The defendant was not the parent or guardian of C.E.

Jury instruction number eighteen defined “obscene material” as any material depicting or describing the genitals, sex acts, masturbation, excretory functions or sadomasochistic abuse which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political, or artistic value.

The same instruction defined “prurient interest” as “a shameful or morbid interest in nudity, sex, or excretion.”

Finally, regarding “community standards,” instruction eighteen stated:

In determining the community standards, you are entitled to draw on your own knowledge of the views of the average person in the community or the vicinity from which you come to make your determination, within the parameters of the definitions you have been given.

Canal’s sole contention regarding the sufficiency of the evidence is that the material he sent to C.E. was not obscene.

The jury instruction defining obscenity incorporates the Supreme Court’s definition of obscenity, but adds the phrase “with respect to what is suitable material for minors.” In other words, the jury instruction recognizes that the obscenity test as to minors is different from the test as to adults . . .

However, minors are still “entitled to a significant measure of First Amendment protection and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” In Erznoznik, the Court found that “all nudity cannot be deemed obscene even as to minors.” There, the ordinance outlawed anyone from exhibiting movies where a human male or female bare buttocks, female bare breasts, or human bare pubic area was shown, if visible from a public street. Despite holding this ordinance invalid, the Court still stated it would not “deprecate the legitimate interests asserted by the city.”

Finally, the instructions, as given, allow the jury to determine the contemporary community standards with respect to what is suitable material for minors. This instruction is consistent with the Supreme Court’s pronouncement in Miller. Under the community standards test, jurors in different regions of the country or a state may come to different conclusions on whether the same material is obscene. This is because jurors are allowed to draw on their own knowledge of the views of the average person in the community or vicinage from which they come when determining community standards.

. . . Although Canal argued to the jury the material he sent C.E. only appealed to a natural interest in sex, under the instructions given the jury could find, by applying its own contemporary community standards with respect to what is suitable material for minors, that the material appealed to the prurient interest, was patently offensive, and lacked serious literary, scientific, political, or artistic value. On a sufficiency-of- the-evidence review, our task is not to refind the facts.

Moreover, on this record we cannot conclude, as a matter of law, the materials Canal sent to C.E. were not obscene.

Therefore, even though another jury in a different community may have found this material not to be obscene, the evidence in this record was sufficient for this jury to determine, under its own community standards, that the material Canal sent to C.E. was obscene . . . Affirmed.

Questions:-

1. The Supreme Court of Iowa relies on U.S. Supreme Court precedent related to obscenity in this case. Name the case and the test used for evaluating obscenity.
2. Should sexting be treated the same as other types of pornography and obscenity in the eyes of the law? Why or why not?