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Miller v. California

Miller v. California

Legal decision

By: Supreme Court of the United States

Date: June 21, 1973

Source: Miller v. California 415 US 13 (1973).

About the Author: The Supreme Court is the highest judicial body in the United States, composed of eight justices and one chief justice. Chief Justice Warren Burger (1907–1995) delivered the opinion of the court in this case.


Historically, American obscenity laws were designed to protect public morality, especially that of children, from exposure to materials that might prove psychologically or morally harmful. Definitions of "obscenity" were broad, and included anything deemed filthy, offensive to the senses, that violated biblical laws or social norms, and, especially, contained information about or descriptions of reproductive and sexual functions. Individual states passed their own obscenity laws. In 1842, the first federal law banned the importation of books that contained obscene content. The Comstock Law of 1873, named after the Postmaster General Anthony Comstock, prohibited the distribution or dissemination of information on contraception and abortion via picture or text through the postal service.

By the early twentieth century the concept of obscenity focused largely on whether material was designed to corrupt or incite depravity, a definition that was highly subjective. The 1957 Supreme Court case Roth v. United States produced the first true obscenity "test." The court determined that "[I]t is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient [tending to incite lewd thoughts] interest…. The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest."

Whether an "average person" would deem that material "appealed to prurient interest," however, left unresolved problems in obscenity cases. Although the Roth decision had narrowed the definition, communities and states still wrestled with challenges posed by defendants who argued that their work was not obscene and therefore protected by the First Amendment. In 1973 the Supreme Court heard the case of Miller v. California, in which Marvin Miller, a distributor of sexually explicit materials, sent sales catalogs of adult publications by mail. He was charged with violating California law that prohibited distributing obscene material. The court addressed the question of how a community standard could be applied to determine obscenity.


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, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (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 Memoirs v. Massachusetts, [413 U.S. 15, 25] 383 U.S., at 419; that concept has never commanded the adherence of more than three Justices at one time. 7 See supra, at 21. 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….

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can [413 U.S. 15, 26] be exhibited or sold without limit in such public places. 8 At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection…. For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.

MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United [413 U.S. 15, 27] States, 383 U.S. 463 (1966), Mishkin v. New York, 383 U.S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression…. Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing "adult" one month past the state law age of majority and a willing "juvenile" one month younger.

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution…. The inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then "hard core" pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends…. In this belief, however, MR. JUSTICE DOUGLAS now stands alone.

MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view. Noting that "[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court," he quite rightly remarks that the examination of contested materials "is hardly a source of edification to the members of this Court." Paris Adult [413 U.S. 15, 29] Theatre I v. Slaton, post, at 92, 93. He also notes, and we agree, that "uncertainty of the standards creates a continuing source of tension between state and federal courts…. The problem is … that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so." Id., at 93, 92.

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, 386 U.S. 767 (1967), and attempt to provide positive guidance to 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. 11 "Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 187-188 (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. See Roth v. United States, supra, at 482-485. "Our duty admits of no 'substitute for facing up [413 U.S. 15, 30] to the tough individual problems of constitutional judgment involved in every obscenity case….'


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 factfinders 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 [413 U.S. 15, 31] 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 12 or to the instructions of the trial judge on "statewide" 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 [413 U.S. 15, 32] of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200:

"It is my belief that when the Court said in Roth that obscenity is to be defined by reference to 'community standards,' it meant community standards—not a national standard, as is sometimes argued. I believe that there is no provable 'national standard.' … "At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one."

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., at 508-509, 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. See Roth v. United States, supra, at 489. Cf., the now discredited test in Regina v. Hicklin, 1868. L. R. 3 Q. B. 360. We hold that the requirement that the jury evaluate the materials with reference to "contemporary [413 U.S. 15, 34] standards of the State of California" serves this protective purpose and is constitutionally adequate.


Miller v. California established the "three-prong obscenity test" for determining whether material is obscene: First, does "the average person, applying contemporary community standards" find the work obscene? Second, does the work depict or describe sexual conduct as defined by state law, in an offensive way? Third, does the work lack serious literary, artistic, political, or scientific value? By incorporating the Roth test into the Miller test, the Supreme Court narrowed the definition of obscenity and drastically reduced the number of obscenity case it heard.

In establishing this test, the Supreme Court provided an avenue for local communities, rather than states or the federal government, to decide whether material is obscene. Even within a community, however, the Miller test requires that the "average person" be the litmus test; this prevents extremists on either end from dictating standards.

The third step, called the "SLAPS" test, examines whether the material has "serious literary, artistic, political, or scientific value." For instance, works by writers such as James Joyce, Henry Miller, Vladimir Nabakov, and others pass the test, in that their work has literary merit. The SLAPS test gave law enforcement officials an objective standard to use in evaluating allegedly obscene material.

The three-prong test was used by Congress to craft the 1996 Communications Decency Act (CDA), which prohibited the publication of "indecent" or "patently offensive" material on internet sites, especially the intentional transmittal of indecent or obscene materials to minors. Critics of the CDA argued that it violated Miller as well as the First Amendment. What constitutes "community standards" when electronic media broadens the "community" to include people from a wide range of states and countries? How much responsibility do content providers hold in regulating the information to which children are exposed?

The Supreme Court struck down the Communications Decency Act in 1997, declaring that it abridged the First Amendment and created a double standard in which print media could publish various materials that would be illegal for electronic media publishers.

The CDA sparked debate about the term "community" and the relevance of the Miller Test in modern electronic publishing. While child pornography and certain extreme forms of pornography are clearly defined "obscene" materials and remain illegal for all publishers, the juncture of Miller v. California, and the World Wide Web raises new questions about definitions of obscenity, indecency, community, and sexual standards.



Harrison, Maureen, and Steve Gilbert, eds. Obscenity and Pornography Decisions of the United States Supreme Court. Carlsbad, Calif.: Excellent Books 2000.

Heins, Marjorie. Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth. New York: Hill and Wang 2001.

Wheeler, Lee Ann. Against Obscenity: Reform and the Politics of Womanhood in America, 1873–1935. Baltimore: The Johns Hopkins University Press. 2004.


Posner, Michael. "Both Chambers Act on Obscenity Curbs." National Journal (March 2004).

Web sites

Find Law "Roth v. United States." 〈〉 (accessed March 16, 2006).

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