Caseflicks

Supreme Court of the United States • 1973

Miller v. California

413 U.S. 15 | 93 S. Ct. 2607 | 37 L. Ed. 2d 419 | 1973 U.S. LEXIS 149

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Takeaway

In short, Miller created the modern three-part obscenity test, permitting regulation of specifically defined, patently offensive sexual material that appeals to prurient interest and lacks serious literary, artistic, political, or scientific value, judged in key respects by contemporary local community standards.

Background

Marvin Miller conducted a mass-mailing campaign advertising sexually explicit books and a film described as “adult” materials. He mailed unsolicited brochures to a Newport Beach restaurant. The restaurant manager and his mother opened the envelope, had not requested the materials, and complained to police. The brochures prominently depicted explicit sexual activity and advertised works with titles including “Intercourse,” “Man-Woman,” and “Sex Orgies Illustrated.”

A California jury convicted Miller of knowingly distributing obscene matter, a misdemeanor under California Penal Code § 311.2(a). The trial proceeded under the then-prevailing Memoirs obscenity formulation, and the jury was instructed to use contemporary standards of the State of California. The Appellate Department of the Orange County Superior Court summarily affirmed. The Supreme Court vacated the judgment and remanded for proceedings under the constitutional standards announced in this case.

Issues

Issue #1

Whether obscene material may be regulated consistently with the First and Fourteenth Amendments, and what test determines whether material is obscene.

Holding

Yes. Obscene material is not protected speech, but a State may regulate only works that satisfy the three-part Miller test.

Reasoning

The Court reaffirmed Roth v. United States: obscenity falls outside First Amendment protection. At the same time, because regulation of expression risks suppressing protected speech, state obscenity laws must be carefully confined to sexually explicit material meeting a precise constitutional standard.

The Court abandoned the Memoirs requirement that the prosecution prove material is “utterly without redeeming social value.” That requirement had never commanded majority support and imposed an almost impossible burden because any marginal value could defeat an obscenity prosecution.

The Court adopted three basic guidelines. The factfinder must decide whether the average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest; whether it depicts or describes sexual conduct in a patently offensive way; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The State may regulate only sexual conduct that its law specifically defines, either in the statutory text or through authoritative judicial construction. The Court gave examples of potentially regulable material: patently offensive depictions or descriptions of actual or simulated ultimate sexual acts, masturbation, excretory functions, and lewd exhibition of the genitals.

This framework protects serious expression even if it is unpopular or sexually explicit. But the Court distinguished serious literary, artistic, political, or scientific expression from the commercial exploitation of patently offensive hard-core sexual material, particularly where it is thrust on unwilling adults or made available to minors.】【”】【},{

Dissents

Justice Douglas

Reasoning

Justice Douglas rejected the premise that obscenity is an unprotected category of speech. In his view, neither the text nor the original understanding of the First Amendment creates an obscenity exception, and courts should not create one from their own judgments about taste, morality, or offensiveness.

He argued that the Court’s new standards were too vague to support criminal punishment. Because publishers cannot know in advance how a jury or court will apply terms such as “prurient,” “patently offensive,” and “serious value,” a prosecution under newly announced standards deprives them of fair warning and resembles retroactive criminal law.

Douglas also warned that allowing government to suppress material because it offends people endangers the central function of the First Amendment: protecting speech that unsettles, angers, or challenges prevailing views. If the public wished to authorize censorship, he believed that change should come through a constitutional amendment, not judicially fashioned obscenity doctrine.

As a minimum due-process safeguard, Douglas would permit criminal punishment only after a civil proceeding had already declared the particular work obscene and appellate review had been completed. Even then, however, he maintained that the First Amendment itself does not authorize obscenity censorship.

Justice Brennan

Reasoning

Justice Brennan, joined by Justices Stewart and Marshall, adhered to the position he set out in Paris Adult Theatre I: no workable legal formula can reliably distinguish unprotected obscenity from protected expression for adults. The vagueness and subjectivity of obscenity standards inevitably chill protected speech and place judges and juries in the role of censors.

He did not decide whether a narrowly drawn statute could punish the particular conduct here—mailing sexually explicit material to unwilling recipients—or whether States could protect juveniles from such material. But California’s statute broadly prohibited the distribution of “obscene matter,” reaching far beyond the narrow circumstances of unsolicited exposure at issue in Miller’s case.

Because the statute was facially overbroad, Brennan concluded that it was invalid under the First Amendment. He would have reversed and remanded so that the California courts could consider whether a limiting construction could save the statute in a future proceeding.