Miller v. California – 3 Prong Obscenity Test – 1st Amendment
Miller v. California – Obscenity – 1st Amendment
Miller v. California (1973)
by Warren E. Burger & William O. Douglas
What is obscenity? What is meant by “prurient interest”? What is the difference between sexuality and obscenity? What was the Hicklin test? Why is obscene speech not protected by the First
Amendment? What is the definition of “obscenity” in Miller? How does the SLAPS test in Miller provide more guidance to juries than the “utterly without redeeming social value” test in Memoirs? How does Justice Burger’s opinion in Miller reflect the principle of federalism? What are the precedents of Paris Adult Theatre v. Slaton (1973), and New York v. Ferber(1982)?
Like libel and fighting words, obscenity is a content-based category of expression that is not protected by the First Amendment. That is to say, authorities may punish obscene material without infringing upon First Amendment rights. The difficulty, however, is defining obscenity, a problem that has plagued the Court. How does one distinguish between sexual expression that might be protected and obscene material that is unprotected? Attempting to answer this question, Justice Potter Stewart once curtly explained, “I know it when I see it.” Until the mid-twentieth century, the Court adopted the Hicklin test, a Victorian common-law standard that judged obscenity in terms of “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences.” Under this standard, sexual expression could be restricted based on the reactions of those most susceptible to sexual suggestion, whether the pervert or the prude. Furthermore, under the Hicklin test, a work could be deemed obscene if only an isolated portion of it, rather than the work as a whole, affected this susceptible person. In, Roth v. United States (1957), the Supreme Court rejected the Hicklin test and replaced it with a new standard for judging obscenity. The Roth test defined obscene material as that which “deals with sex in a manner appealing to the prurient interest” and is “utterly without redeeming social importance.” Under Roth, ideas having even the slightest redeeming social importance are protected. The Roth test and a subsequent iteration of it in Memoirs v. Massachusetts (1966) were superseded by Miller v. California, decided 5–4, and the companion case Paris Adult Theatre I v. Slaton (1973), which remain the controlling precedents for obscenity. Notably, in a nod to federalism and a change from Roth, the new obscenity standard of Miller was a state and local standard, not a national one. The Court also replaced the “utterly without redeeming social value” of the Memoirs test with the SLAPS test (serious, literary, artistic, political, scientific value). Nine years after Miller, in New York v. Ferber (1982), the Court banned child pornography as a category excluded from First Amendment protection.
Source: 413 U.S. 15, https://www.law.cornell.edu/supremecourt/text/413/15.
In Miller v. California, 413 U.S. 15 (1973), the Supreme Court upheld the prosecution of a California publisher for the distribution of obscene materials. In doing so, it established the test used to determine whether expressive materials cross the line into unprotected obscenity. The Miller test remains the guide in this area of First Amendment jurisprudence.
Miller convicted for distributing obscenity
In California, Covina-based publisher Marvin Miller was called in some circles the “King of Smut.” In this case, he was prosecuted in 1968 for mailing advertisements for four books — Intercourse, Man–Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography — and a film entitled Marital Intercourse. A jury then convicted Miller under a California law prohibiting the distribution of obscenity, and his conviction was affirmed by a California appeals court. Miller appealed to the U.S. Supreme Court, contending that the advertisements in question were not obscene. The Court affirmed his conviction 5-4.
Burger established three-part obscenity test
Writing for the majority, Chief Justice Warren E. Burger established a three-part test for juries in obscenity cases: “Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The three parts of the test soon became known, in short, as the prurient interest, patently offensive, and SLAPS prongs.
The Miller standard differed from the Court’s previous obscenity standard as articulated in Memoirs v. Massachusetts (1966). A plurality in Memoirs had established that any material designated as obscene had to be “utterly without any redeeming social value,” but in Miller the Court relaxed the standard for prosecutors by requiring the material to have some “serious value.” The new standard granted “greater discretion to law enforcement agencies, judges and jurors to decide whether, under local community standards, material should be condemned as obscene” (Mathews 1973: A1).
First Amendment does not require national community standard
Burger rejected the notion that the First Amendment requires a national community standard, writing: “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.” He did note that only materials that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law” constituted obscenity.
Justice William O. Douglas dissented, writing that obscenity cases “have no business in the courts.” Justice William J. Brennan Jr., joined by Justices Potter Stewart and Thurgood Marshall, also wrote a dissent, referring readers to his dissent in the companion case of Paris Adult Theatre I v. Slaton (1973), in which he argued that obscenity laws could not be drafted consistently with the First Amendment.
The Miller test remains the dominant test for both state and federal obscenity prosecutions. Criticism continues to the notion of applying “contemporary community standards.” For example, the 9th Circuit in United States v. Kilbride (2009) wrote that “a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.”
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.
Legal Principle at Issue
Whether, consistent with the First Amendment, unsolicited mass mailings to advertise books containing explicit pictures of sexual activities can be criminally prosecuted.
Vacated and remanded. Petitioning party received a favorable disposition.
Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant’s conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:
1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 413 U. S. 23-24.
2. 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, Roth, supra, at 354 U. S. 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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 413 U. S. 24-25.
3. The test of “utterly without redeeming social value” articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 413 U. S. 24-25.
4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a “national standard.” Pp. 413 U. S. 30-34.
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