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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.
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).