MILLER v. CALIFORNIA, 413 U.S. 15 (1973)

MILLER v. CALIFORNIA APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF

• CALIFORNIA, COUNTY OF ORANGE No. 70-73.
• Argued January 18-19, 1972 Reargued November 7, 1972
• Decided June 21, 1973
• MILLER v. CALIFORNIA, 413 U.S. 15 (1973)

Summary

"Appellant was convicted of mailing unsolicited sexually explicit material"

• Obscene material not protected by 1st
  • "does not have serious literary, artistic, political, or scientific value"
• new "basic guidelines": including
  • (a) average person ... applying community standards [finds] ... appeals to prurient interest
• rejects earlier test "w/o redeeming social value" from Memoirs
• juries need not apply "national standard"

Circumstances

Emphasis on unwilling recipients

• Mass-mailing advertising of "adult" material
  • Recipient (and mother) in Newport Beach, CA complained to police that mailing was unsolicited

History

Roth v. United States, 1957

Roth v. United States, 354 U.S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment.

• Same opinion as Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572
• Terms like "slight social value", "without redeeming social importance"

Memoirs v. Massachusetts, 1966

Nine years later, in Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity.

• "dominant theme ... prurient interest in sex"
• "offensive [to] community standards relating to ... sexual matters"
• "utterly without redeeming social value"
  • prosecution would have to "prove a negative"
  • "virtually impossible under our criminal standards of proof"

Defining obscenity

"Obscene material is unprotected by the First Amendment"

Concerned about regulating expression, they limit the def of obscenity to sexual material, specifically

• "appeal to the prurient interest in sex"
• "portray sexual conduct in a patently offensive way"
• "do not have serious literary, artistic, political, or scientific value"

Examples of obscenity:

• "(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."

Equating pictures/films to live sex acts

• "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."

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.

Difficulty determining obscenity has lead to a "burden" on the Supreme Court, but

• "no amount of "fatigue" should lead us to adopt a convenient "institutional" rationale - an absolutist, "anything goes" view of the First Amendment"

Obscenity across the US

The US is too "big and too diverse" for a single standard

• rely instead of "contemporary community standards"

Concern over repression

" dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic strug- gle for freedom."

• "the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter[from free exchange of ideas]."
• They refer to a lack of evidence in 19th c. America re: censorship of sexual material.
  • No progress or discourse in arts, sciences appeared to have been negatively impacted

Social value of pornography?

• "One can concede that the "sexual revolution" of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation."
• "But it does not follow that no regulation of patently offensive "hard core" materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphine."

Dissenting

"Today we leave open the way for California1 to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today's decision were never the part of any law."

• Attempts to define obscenity "concededly" failed
  • re: "hardcore" porn, "I know it when I see it"

Obscenity cases "generate ... emotional outbursts [and] have no business in the courts"

• New test suffers weakeness of previous ruling (Ginzburg): "all the evils of an ex post facto law"
• The test did not exist when the events in question occurred
• Citizens need a "fair warning" re: the law

Obscenity is a "hodge-podge"

• Vague, lacking specificity
• "To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do"

No "captive audience" in this case

• No one is being "compelled to look or to listen"

First Amendment was designed to "invite dispute"

• To exempt obscenity puts "an ominous gloss" on freedom of the press
• To place authority in govt to define obscenity "cuts the very vitals out of the First Amendment"

"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. Perhaps the people will decide that the path towards a mature, integrated society requires [413 U.S. 15, 47] that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections."