MILLER V. CALIFORNIA

Arguably the most important in a series of late-twentieth-century Supreme Court cases laying down the definition of obscenity and setting down the boundaries as to how and when communities could regulate obscene materials. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) remained the Supreme Court's final word on most types of pornography into the twenty-first century. While the test set down for defining obscenity in Miller v. California has been modified and expanded by subsequent court cases since the original decision was handed down in 1973, it has never been overturned and forms the starting point for nearly all U.S. court cases dealing with obscenity prosecutions.

Pre-Miller Obscenity Cases

Miller v. California and its companion case, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446, (1973), marked the culmination of a period when the Supreme Court laid down several tests for obscenity, the most famous and succinct of which was Justice Potter Stewart's comment in his concurrence in Jacobellis v. State of Ohio 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964), "I know it when I see it." For years, U.S. courts had generally followed the definition of obscenity contained in the 1868 British case, Regina v. 3 L.R.-Q.B. 360 (1868). That case said the definition of obscenity was "whether the tendency of the matter charged is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall." Courts differed as to whether just one passage of the material was sufficient to prove this tendency or whether the work had to be examined as a whole.

But in 1957, the Supreme Court explicitly rejected Regina v. Hicklin in roth v. united states 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498,(1957). In that case, a divided Supreme Court first ruled for the first time that obscenity was beyond constitutional protection. The Court went on to rule that the new standard for judging obscenity was whether to an average person, applying contemporary community standards, the dominant theme of material taken as a whole appealed to prurient interest. In imposing an average person standard, the Court departed from Hicklin's more broad definition to allow a finding of obscenity wherever there were "minds open to … immoral influences."

Unfortunately, the Supreme Court's obscenity test in Roth seemed to create more problems than it solved, for both lower courts and the high court itself, partially because it proved difficult to determine who the average person in a community was and whether local, state, or national standards were to be applied in trying to divine this person. Also, measuring the dominance of obscenity within a piece of material was not an easy task for most courts. In A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1, (1966), the high court further added that the material in question had to be utterly without redeeming social value, a standard that many prosecutors complained was almost impossible to meet.

With all the confusion, the stage was set for the court to make a definitive statement on obscenity. This is what the court tried to do in Miller v. California. But for years after the decision was handed down, commentators debated whether the court had succeeded.

Miller v. California

Under a California obscenity statute, Marvin Miller was convicted for mailing illustrated brochures advertising "adult" books. The California appeals court used the tests previously enunciated by the court to uphold Miller's conviction. The Supreme Court took up the case as an opportunity to reconsider its previous holdings.

The resulting 5–4 decision imposed a new test for determining obscenity. In a decision written by Chief Justice warren burger, the Court imposed a new three-part test for determining whether a work was obscene. Burger wrote: "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."

In handing down this decision, Burger reaffirmed that obscenity and pornography are not protected by the first amendment. He explicitly rejected the "utterly without redeeming social value" test in favor of the third prong of his formula, which was viewed as an easier standard for prosecutors to meet. He also stated that no one could be subjected to prosecution "for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hardcore' sexual conduct specifically defined by the regulating state law, as written or construed."

Burger went further than past Supreme Court decisions in attempting to define what would constitute hardcore pornography. While emphasizing that "it is not our function to propose regulatory schemes for the States" he said that "It is possible … to give a few plain examples of what a state statute could define for regulation: (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."

The companion case of Paris Adult Theatre I v. Slaton, handed down on the same day, ruled that as long as state laws met the Miller test, they could regulate hardcore pornography even if the showing of such pornography was limited to consenting adults. Chief Justice Burger, who wrote the majority opinion in Paris Adult Theatre, stated that "States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including socalled 'adult' theaters from which minors are excluded." Such regulations can be likened to when "legislatures and administrators act to protect the physical environment from pollution and to preserve our resources of forests, streams, and parks, they must act on such imponderables as the impact of a new highway near or through an existing park or wilderness area," according to Burger.

The Miller and Paris Adult Theatre rulings did not meet with unanimous acclaim even when they were being handed down. In a dissent in Miller, Justice william o. douglas wrote: "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." Despite such criticisms, both rulings remained the law of the land in regards to obscenity prosecutions. Subsequent Supreme Court rulings imposed a "reasonable person" standard on the third prong "serious value" test and allowed states to impose a more stringent criterion for child pornography. But as of 2003, Miller was undisturbed as the test for pornography and obscenity in U.S. courts.

further readings

Brockwell, P. Heath. 1993–1994. "Grappling with Miller v. California: The Search for an Alternative Approach to Regulating Obscenity." Cumberland Law Review 24.

Carter, T. Barton, Juliet Lushbough Dee, and Harvey L. Zuckman. 2000. Mass Communication Law. St. Paul, Minn.: West Group.

Cohen, Daniel Mark. 2003. "Unhappy Anniversary—Thirty Years Since Miller v. California: The Legacy of the Supreme Court's Misjudgment on Obscenity." St. Thomas Law Review 15 (spring).

cross-references

Obscenity; Pornography.

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