Miller v. California

413 U.S. 15 (1973), argued 18–19 Jan. and 7 Nov. 1972; PARIS ADULT THEATRE v. SLATON, 413 U.S. 49 (1973), argued 19 Oct. 1972, both decided 21 June 1973 by vote of 5 to 4; Burger for the Court, Douglas, Brennan, Stewart, and Marshall in dissent. Miller v. California articulates the test for obscenity that resolved the dilemma of First Amendment protection for allegedly obscene materials first identified in *Roth v. United States (1957). Chief Justice Warren *Burger's majority opinion stated that material could be obscene only if “(a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; [and] (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (p. 25). Burger went on to say that under this test “no one will be subject to prosecution for the sale or exposure of obscene materials unless those materials depict or describe patently offensive ‘hard core’ sexual conduct” (p. 27).

One of the most significant contributions of Miller was its identification of the geographic criterion of the contemporary community standards against which obscenity was to be measured. Burger held that both prurient interest and patent offensiveness could constitutionally be measured by local rather than national standards. Many persons assumed at the time that the definition of obscenity and thus the coverage of obscenity statutes could vary significantly from place to place. Subsequent cases revealed that this reading of Miller was unjustified.

The Court first indicated that the scope of local variation in the identification of prurient interest or patent offensiveness was much narrower than supposed. In Jenkins v. Georgia (1974) Justice William H. Rehnquist stated that the film Carnal Knowledge could not, in light of the First Amendment, be found to appeal to the prurient interest, or be found patently offensive, regardless of the views of the Georgia courts and Georgia's community standards. This established a quite narrow range for permissible variance in local community standards. Moreover, in Smith v. United States (1977) and in Pope v. Illinois (1987) the Court required that the third prong of the Miller test, lack of serious literary, artistic, political, or scientific value, was to be measured against national standards. A work considered nationally to have literary, artistic, political, or scientific value could not constitutionally be found to be obscene regardless of whether it appealed to prurient interest or was patently offensive, and regardless of the standards of any community smaller than the nation as a whole.

Miller nevertheless remains controversial, in part because of continuing doubts about the extent to which any obscenity regulation can be squared with the First Amendment and in part because the factors identified by Miller may not be appropriate for issues of violence against or degradation of women. Feminists' attacks on pornography as a form inciting violence directed at women provide the background for antipornography ordinances such as that struck down by the Seventh Circuit Court of Appeals in American Booksellers Association, Inc. v. Hudnut (1985) (see also Gender).

Miller's companion case, Paris Adult Theatre v. Slaton, reaffirmed the Roth holding that obscenity was outside the coverage of the First Amendment. Thus its regulation may be tested only against the minimal scrutiny of the rational basis test that the Court uses for regulation not restricting specific constitutional rights. This reaffirmation of Roth came as a surprise partly because the development of the right to privacy since 1957 had suggested that state interference with the sexual activities of consenting adults, including watching highly sexually explicit films, was constitutionally suspect. But Chief Justice Burger's majority opinion in Paris Adult Theatre rejected the argument, and started a process of restricting the protections for privacy identified in cases such as Griswold v. Connecticut (1965) and Roe v. Wade (1973) to matters dealing with marriage, family, and procreation. In dissent, Justice William J. Brennan, the author of the majority opinion in Roth, maintained that the Court's inability since 1957 to come up with a workable test for obscenity made the whole enterprise impermissibly vague, especially since that vagueness inhibited the availability of nonobscene materials clearly protected by the First Amendment. Nevertheless, the majority in these two cases reaffirmed the view that, whatever the philosophical permissibility of the regulation of morals and private sexual conduct, the arguments in favor of some regulation were at least plausible enough to satisfy the minimal scrutiny of the rational basis standard.

See also Obscenity and Pornography.

Bibliography

• Frederick Schauer, Speech and ‘Speech’—Obscenity and ‘Obscenity’: An Exercise in the Interpretation of Constitutional Language, Georgetown Law Journal 67 (1979): 899–933

— Frederick Schauer

by Warren E. Burger and William O. Douglas, 1973

In rulings handed down in 1957 and 1966, the U.S. Supreme Court had defined obscenity as material "utterly without redeeming social value." After the latter date, books, magazines, movies, and plays that would have previously been banned tended to proliferate across the nation. Many book stores and film houses catered only to a clientele ostensibly interested in "hard-core pornography." This was all occasioned by both the more relaxed social standards of the day and the fact that the rulings of the Court made it difficult to determine precisely when something was without "redeeming social value." On June 21, 1973, the Court handed down four rulings in related cases, the first of which, Miller v. California, set forth new guidelines that would use contemporary community standards to define what was obscene. This ruling, because it attempted no definition of obscenity, seemed to many local officials to be the weapon they needed to curtail what was objectionable to them in their communities. Movies, magazines, or books that had existed unscathed for years now, in a few locations, were banned or burned. Because the new ruling left many questions unresolved, the Authors' League of America filed a brief on August 9 asking that the Court rehear arguments in the obscenity case and clarify its ruling to prevent misunderstanding by legislators, prosecutors, police departments, and judges. The League also requested the Court to adopt a First Amendment safeguard whereby no one could be prosecuted for purveying works not already judged obscene. The League hoped that the Court would adopt the view that the First Amendment prohibits restraint on distribution of books and films, regardless of content, to "willing adults." In December the Supreme Court stated that it would review its June 21 decisions in the pornography cases. The decision in Miller v. California was rendered by Chief Justice Warren Burger. Portions of his ruling and of the dissent by Associate Justice William O. Douglas are reprinted here.

Mr. Chief Justice Burger delivered the opinion of the Court.

This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a re-examination of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the intractable obscenity problem."...

This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. ...

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. ...

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. ...We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest. ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memiors v. Massachusetts, supra, 383 U.S., at 419 (1966); that concept has never commanded the adherence of more than three Justices at one time. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. ...

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate "hard core" pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, supra, and attempt to provide positive guidance to the federal and state courts alike.

This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt a convenient "institutional" rationale-an absolutist, "anything goes" view of the First Amendment-because it will lighten our burdens. "Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, 378 U.S., at 187-188 (1964) (opinion of Brennan, J.). Nor should we remedy "tension between state and federal courts" by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. ...

Under a national Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These are essentially questions of fact, and our nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate fact-finders in criminal prosecutions, has historically permitted triers-of-fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a "national" standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of the material as a whole ... appeals to the prurient interest" and in determining whether the material "goes substantially beyond customary limits of candor and affronts contemporary community standards of decency" it was to apply "contemporary community standards of the State of California."

During the trial, both the prosecution and the defense assumed that the relevant "community standards" in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State's expert on community standards or to the instructions of the trial judge on "state-wide" standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments.

We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the trial court's charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable "national standards" when attempting to determine whether certain materials are obscene as a matter of fact. ...

It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. ...

People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U.S. 502, 508-509 (1966), the primary concern with requiring a jury to apply the standard of "the average person, applying contemporary community standards" is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person-or indeed a totally insensitive one. We hold the requirement that the jury evaluate the materials with reference to "contemporary standards of the State of California" serves this protective purpose and is constitutionally adequate.

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. ...

In sum we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment, (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is "utterly without redeeming social value," and (c) hold that obscenity is to be determined by applying "contemporary community standards," see Kois v. Wisconsin, supra, 408 U.S., at 230 (1972), and Roth v. United States, supra, 354 U.S., at 489 (1957), not "national standards." The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion.

Vacated and remanded for further proceedings.

Mr. Justice Douglas, dissenting.

Today we leave open the way for California to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today's decision were never the part of any law. ...

Today we would add a new three-pronged test: "(1) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeal to the prurient interest, ... (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Those are the standards we ourselves have written into the Constitution. Yet how under these vague tests can we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?

Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well-intentioned. The difficulty is that we do not deal with constitutional terms, since "obscenity" is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from "the press" which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated "obscene" publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not "obscene." The Court is at large because we deal with tastes and standards of literature. What shocks me may be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with problems of censorship which, if adopted, should be done by constitutional amendment after full debate by the people.

Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as if and when publishers defied the censor and sold their literature. Under that regime a publisher would know when he was on dangerous ground. Under the present regime-whether the old standards or the new ones are used-the criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg and has all the evils of an ex post facto law.

My contention is that until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said:

The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment." Interstate Circuit v. Dallas, 390 U.S. 676, 707. ...

If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does and my views on the issue have been stated over and again. But at least a criminal prosecution brought at that juncture would not violate the time-honored void-for-vagueness test.

No such protective procedure has been designed by California in this case. Obscenity-which even we cannot define with precision-is a hodge-podge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.

While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Commission v. Pollak, 343 U.S. 451, 467 (1952), where I protested against making a streetcar audience a "captive" audience. There is no "captive audience" problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban.

The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfactions with conditions as they are," and even to stir "people to anger." Terminiello v. Chicago, 337 U.S. 1, 4. The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV or over the radio. By reason of the First Amendment-and solely because of it-speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some.

The standard "offensive" is unconstitutional in yet another way. In Coates v. Cincinnati, 402 U.S. 611, we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves "in a manner annoying to persons passing by." We struck it down, saying "If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.

"Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all." Id., at 614.

How we can deny Ohio the convenience of punishing people who "annoy" others and allow California power to punish people who publish materials "offensive" to some people is difficult to square with constitutional requirements.

If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it.

We deal with highly emotional, not rational, questions. To many the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections.

For other uses, see Miller v. California (disambiguation).

Miller v. California
Supreme Court of the United States
Argued January 18–19, 1972 Reargued November 7, 1972 Decided June 21, 1973
Full case name	Marvin Miller v. State of California
Citations	413 U.S. 15 (more) 93 S. Ct. 2607; 37 L. Ed. 2d 419; 1973 U.S. LEXIS 149; 1 Media L. Rep. 1441
Prior history	Summary affirmation of jury verdict by Appellate Department, Superior Court of California, County of Orange, was unpublished.
Holding
Obscene materials are defined as those that the average person, applying contemporary community standards, find, taken as a whole, appeal to the prurient interest; that depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law; and that, taken as a whole, lack serious literary, artistic, political, or scientific value.
Court membership
Chief Justice Warren E. Burger Associate Justices William O. Douglas · William J. Brennan, Jr. Potter Stewart · Byron White Thurgood Marshall · Harry Blackmun Lewis F. Powell, Jr. · William Rehnquist
Case opinions
Majority	Burger, joined by White, Blackmun, Powell, Rehnquist
Dissent	Douglas
Dissent	Brennan, joined by Stewart, Marshall
Laws applied
U.S. Const. amend. I; Cal. Penal Code 311.2(a)

Miller v. California, 413 U.S. 15 (1973) was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes. The decision reiterated that obscenity was not protected by the First Amendment and established the Miller test for determining what constituted obscene material.

Contents 1 History 2 The case 3 Effects of the decision 4 References in popular culture 5 See also 6 References 7 Further reading 8 External links

History

The appellant, Marvin Miller, operator of one of the West Coast's largest mail-order businesses dealing in sexually explicit material, had conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. He was found guilty in the Superior Court of Orange County, California (the state trial court) of having violated California Penal Code 311.2 (a), a misdemeanor, by knowingly distributing obscene material. The conviction was affirmed by the California Court of Appeals. As stated in the preface to Chief Justice Warren Burger's majority opinion, the

Appellant's conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures and complained to the police.

According to the Court's decision, the materials in question primarily... consist[ed] of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. Since the Court's decision in Roth v. United States, 354 U.S. 476 (1957), the Court had struggled to define what constituted constitutionally unprotected obscene material. Under the common law rule that prevailed before Roth, articulated most famously in the 1868 English case Regina v. Hicklin, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. Thus, works by Balzac, Flaubert, James Joyce, and D. H. Lawrence were banned based on isolated passages and the effect they might have on children. Roth repudiated the Hicklin test and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." Only material meeting this test could be banned as "obscene."

Hugo Black and William O. Douglas, First Amendment "literalists," chafed at the Roth test and argued vigorously that the First Amendment protected obscene material. In subsequent cases the Court encountered tremendous difficulty in applying the Roth test, which did not define what it meant by "community standards." For example, in the 1964 case Jacobellis v. Ohio, involving whether Ohio could ban the showing of a French film called Les Amants (The Lovers), the Court ruled that the film was protected by the First Amendment, but could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions. In his concurring opinion in Jacobellis, Justice Potter Stewart, holding that Roth protected all obscenity except "hard-core pornography," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of the Court further redefined the Roth test by holding unprotected only that which is "patently offensive" and "utterly without redeeming social value," but no opinion in that case could command a majority of the Court either, and the state of the law in the obscenity field remained confused.

With the Court unable to agree as to what constituted obscenity, the Justices were put in the position of having to personally review almost every obscenity prosecution in the U. S. with the Justices gathering for weekly screenings of "obscene" motion pictures (Black and Douglas pointedly refused to participate, believing all the material protected). Meanwhile, pornography and sexually oriented publications proliferated as a result of the Court's holdings, the Sexual Revolution of the 1960s flowered, and pressure increasingly came to the Court to allow leeway for state and local governments to crack down on obscenity. During his ill-fated bid to become Chief Justice, Justice Abe Fortas was attacked vigorously in Congress by conservatives such as Strom Thurmond for siding with the Warren Court majority in liberalizing protection for pornography. In his 1968 presidential campaign, Richard Nixon campaigned against the Warren Court, pledging to appoint "strict constructionists" to the Supreme Court.

Chief Justice Warren Burger came to the Court in 1969 believing that the Court's obscenity jurisprudence was misguided and governments should be given more leeway to ban obscene materials. In consideration of Miller in May and June 1972, Burger pushed successfully for a looser definition of "obscenity" which would allow local prosecutions, while Justice William J. Brennan, Jr., who by now also believed the Roth and Memoirs tests should be abandoned, led the charge for protecting all "obscenity" unless distributed to minors or exposed offensively to unconsenting adults. Decision of the case was contentious, and Miller was put over for reargument for October term 1972, and did not come down until June 1973, with Burger prevailing by a bare 5-4 vote.

The case

The question that the court had to decide was, is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guaranteed? The Court ruled that it was not. It indicated that "obscene material is not protected by the First Amendment", thereby reaffirming part of Roth.

The government can outlaw material based on the following standard: "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of expression," and said that "State statutes designed to regulate obscene materials must be carefully limited." The Court, in an attempt to set such limits devised a set of three criteria which must be met in order for a work to be legitimately subject to state regulation:

• the average person, applying contemporary community standards (not national standards, as some prior tests required), must find that the work, taken as a whole, appeals to the prurient interest;
• the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions^[1] specifically defined by applicable state law; and
• the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held that "all ideas having even the slightest redeeming social importance . . . have the full protection of the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without redeeming social importance."

The Miller decision vacated the judgment of the Appellate Department of the Superior Court of California and remanded the case to that court for further proceedings consistent with the First Amendment standards established by the opinion.

Effects of the decision

Miller provided states greater freedom in prosecuting alleged purveyors of "obscene" material because, for the first time since Roth, a majority of the Court agreed on a definition of "obscenity." Hundreds of "obscenity" prosecutions went forward after Miller, and the Supreme Court began denying review of these state actions after years of reviewing many "obscenity" convictions (over 60 appeared on the Court's docket for the 1971-72 term, pre-Miller). A companion case to Miller, Paris Adult Theatre I v. Slaton, provided states with greater leeway to shut down adult movie houses. Controversy arose over Miller's "community standards" analysis, with critics charging that Miller encouraged "forum shopping" to prosecute national producers of what some believe to be "obscenity" in locales where community standards differ substantially from the rest of the nation. For example, under the "community standards" prong of the Miller test, what might be considered "obscene" in Massachusetts might not be considered "obscene" in Utah, or the opposite might be true; in any event, prosecutors tend to bring charges in locales where they believe that they will prevail.

The "community standards" portion of the decision is of particular relevance with the rise of the Internet, as materials believed by some to be "obscene" can be accessed from anywhere in the nation, including places where there is a greater concern about "obscenity" than other areas of the nation.

In the years since Miller, many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and public nudity laws. These types of actions have been upheld by the Supreme Court. Additionally, in 1982's New York v. Ferber, the Court declared child pornography unprotected by the First Amendment, upholding the state of New York's ban on that material. In the recent Ashcroft v. Free Speech Coalition case, however, the Court held that sexually explicit material that appears to depict minors might be constitutionally protected.

References in popular culture

Gore Vidal, whose 1967 best-selling novel Myra Breckenridge was considered obscene by many in the anti-pornography movement (but which was not prosecuted), satirized the Miller v. California decision in the 1974 sequel to Myra Breckenridge, Myron. In his introduction to the novel, Vidal says the recent Supreme Court decision "leaves to each community the right to decide what is pornography." Saying that the decision has "alarmed and confused peddlers of smut" by eliminating guidelines, Vidal says he has decided to substitute the names of the five Justices who voted for the decision, plus the names of anti-pornography crusaders Charles Keating and Father Morton A. Hill, S.J. for the "dirty words." He has done this, he writes, to conform to the Supreme Court's imposition of the "community standards" test, as he wants "to conform with the letter and spirit of the Court's decision."^[2]

See also

• List of United States Supreme Court cases, volume 413
• Sex-related court cases

References

1. ^ The syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion.
2. ^ Vidal, Gore (1974). Myron: A Novel. New York: Random House. ISBN 0394494776. 

Further reading

• Tuman, Joseph (2003). "Miller v. California". in Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 187–202. ISBN 081731301X. 

External links

• Text of Miller v. California, 413 U.S. 15 (1973) is available from:  · Enfacto · Findlaw

• First Amendment Library entry for Miller v. California
• Audio recordings or oral arguments and rearguments, from Oyez.org

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