Caseflicks

Supreme Court of the United States • 1977

Marks v. United States

430 U.S. 188

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case holds that due process forbids retroactively applying a judicially adopted criminal standard that expands liability, and that a fragmented decision's controlling rule is the narrowest ground shared by the Justices who concurred in the judgment.

Background

Petitioners were charged with transporting allegedly obscene materials in interstate commerce, in violation of 18 U.S.C. § 1465, and with conspiracy. The charged conduct ended on February 27, 1973.

Before petitioners' October 1973 trial, the Supreme Court decided Miller v. California. Miller replaced the prior Memoirs v. Massachusetts obscenity formulation, including Memoirs's requirement that material be "utterly without redeeming social value," with a standard asking whether the work lacked serious literary, artistic, political, or scientific value. The District Court rejected petitioners' request for Memoirs-based instructions, instructed the jury under Miller, and the jury convicted them. A divided Sixth Circuit affirmed. The Supreme Court reversed and remanded.

Issues

Issue #1

Whether Memoirs v. Massachusetts supplied the governing obscenity standard before Miller even though Memoirs was decided by a fragmented Court.

Holding

Yes. Under the narrowest-grounds approach to fragmented decisions, the Memoirs plurality's test was the Court's holding and governed obscenity prosecutions before Miller.

Reasoning

A fragmented decision can have a controlling rule even when no single opinion commands five votes. The Court stated that the holding is the position taken by those who concurred in the judgment on the narrowest grounds.

Three Justices adopted the Memoirs test, while Justices Black and Douglas concurred in reversal on the broader ground that the First Amendment absolutely protects obscenity. Justice Stewart likewise concurred on a broader approach that would permit suppression only of "hard-core pornography." Thus, the Memoirs plurality supplied the narrowest rationale supporting the judgment.

The Court also emphasized the practical legal reality: every federal court of appeals to consider the question had treated Memoirs as controlling between Memoirs and Miller. Materials were protected unless the prosecution proved, among other elements, that they were utterly without redeeming social value.

Issue #2

Whether the Due Process Clause permits retroactive application of Miller's obscenity standard when it can expose a defendant to criminal liability for conduct that Memoirs would have protected.

Holding

No. Due process bars applying Miller retroactively to the extent it imposes criminal liability for conduct not punishable under Memoirs.

Reasoning

Although the Ex Post Facto Clause formally restrains legislatures rather than courts, its underlying principle of fair warning is protected against judicial action by the Fifth Amendment's Due Process Clause. Under Bouie v. City of Columbia, an unforeseeable judicial enlargement of criminal liability cannot be applied retroactively.

Miller was not merely a clarification of the earlier law. Its replacement of Memoirs's "utterly without redeeming social value" requirement with the less protective inquiry into whether a work lacks serious literary, artistic, political, or scientific value expanded the range of punishable expression. Miller itself acknowledged that the Memoirs formulation imposed a burden on prosecutors that was virtually impossible to satisfy under ordinary criminal standards of proof.

Section 1465 uses broad language, so its constitutional scope depended on the Court's obscenity decisions. Memoirs had sharply limited the statute's reach, while Miller relaxed those limits. Persons who marketed expressive materials before Miller therefore lacked fair notice that their conduct could be judged under the newer, harsher standard.

Because petitioners' conduct predated Miller, they were entitled to instructions requiring acquittal unless the jury found that the materials were utterly without redeeming social value. At the same time, the Court reaffirmed Hamling: any aspect of Miller that benefits a defendant must be applied retroactively. A properly instructed jury, rather than an appellate court, had to decide the crucial obscenity question in the first instance.

Concurrences

Justice Brennan

Reasoning

Justice Brennan agreed that applying Miller retroactively to petitioners' detriment violated due process. He would not, however, remand for a new trial.

In his view, § 1465 was clearly overbroad and unconstitutional on its face because it impermissibly regulated obscenity-related expression. Accordingly, he would reverse the convictions outright rather than allow further prosecution under Memoirs.

Justice Stevens

Reasoning

Justice Stevens agreed with the Court's due-process analysis but concluded that the prosecution itself was constitutionally impermissible. He therefore would reverse rather than remand for a new trial.

First, he stressed that the statute regulates expression protected by First Amendment values. However distasteful some may find the materials, they remain a form of communication and entertainment with marketplace value for a substantial segment of society.

Second, he found the prosecution conceptually troubling because it criminalized supplying materials that the recipient may have a constitutional right to possess privately under Stanley v. Georgia.

Third, he concluded that the substantive and procedural standards governing obscenity prosecutions were intolerably vague, making evenhanded enforcement virtually impossible. His experience suggested that obscenity enforcement produced grossly disparate treatment of similar offenders, and he doubted that appellate courts could reliably determine whether juries had properly identified community standards.