Miller v. California

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