Miller v. California
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Note: The U.S. Supreme court has decided four cases titled Miller v. California. This article only refers to the 1973 case regarding obscenity.
Miller v. California, Template:Ussc was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes. The case was argued on January 18-19, 1972 and reargued November 7, 1972 and the 5-4 decision was issued on June 21, 1973. The decision reiterated that obscenity was not protected by the First Amendment and established the Miller test for determining what constituted obscene material.
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Prior History
The appellant, Marvin Miller, operator of one of the West Coast's largest mail-order businesses dealing in sexually explicit material, had conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. He was found guilty by a California state court of having violated California Penal Code 311.2 (a), a misdemeanor, by knowingly distributing obscene matter. The conviction was affirmed by the Superior Court of California upon appeal. As stated in the preface to Chief Justice Warren Burger's majority opinion, the "Appellant's conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures and complained to the police."
According to the Court's decision, the materials in question "primarily ... consist[ed] of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed."
Since the Court's decision in Roth v. United States, 354 U.S. 476 (1957), the Court had struggled to define what constituted constitutionally unprotected obscene material. Under the common law rule that prevailed before Roth, articulated most famously in the 1868 English case Hicklin v. Regina, any material that tended to "deprive and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. Thus, works by Balzac, Flaubert, James Joyce, and D.H. Lawrence were banned based on isolated passages and the effect they might have on children. Roth repudiated the Hicklin test and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." Only material meeting this test could be banned as "obscene."
Hugo Black and William O. Douglas, First Amendment "literalists," chafed at the Roth test and argued vigorously that the First Amendment protected obscene material. In subsequent cases the Court encountered tremendous difficulty in applying the Roth test, which did not define what it meant by "community standards." For example, in the 1964 case Jacobellis v. Ohio, involving whether Ohio could ban the showing of a French film called "Les Amants" ("The Lovers"), the Court ruled that the film was protected by the First Amendment, but could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions. In his concurring opinion in Jacobellis, Justice Potter Stewart, holding that Roth protected all obscenity except "hard-core pornography," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."
In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of the Court further redefined the Roth test by holding unprotected only that which is "patently offensive" and "utterly without redeeming social value," but no opinion in that case could command a majority of the Court either, and the state of the law in the obscenity field remained confused.
With the Court unable to agree as to what constituted obscenity, the Justices were put in the position of having to personally review almost every obscenity prosecution in the United States, with the Justices gathering for weekly screenings of "obscene" motion pictures (Black and Douglas pointedly refused to participate, believing all the material protected). Meanwhile, pornography and sexually-oriented publications proliferated as a result of the Warren Court's holdings, the "Sexual Revolution" of the 1960s flowered, and pressure increasingly came to the Court to allow leeway for state and local governments to crack down on obscenity. During his ill-fated bid to become Chief Justice, Justice Abe Fortas was attacked vigorously in Congress by conservatives such as Strom Thurmond for siding with the Warren Court majority in liberalizing protection for pornography. In his 1968 presidential campaign, Richard Nixon campaigned against the Warren Court, pledging to appoint "strict constructionists" to the Supreme Court.
Chief Justice Warren Burger came to the Court in 1969 believing that the Court's obscenity jurisprudence was misguided and governments should be given more leeway to ban obscene materials. In consideration of Miller in May and June 1972, Chief Justice Burger pushed successfully for a looser definition of "obscenity" which would allow local prosecutions, while Justice William J. Brennan, Jr., who by now also believed the Roth and Memoirs tests should be abandoned, lead the charge for protecting all "obscenity" unless distributed to minors or exposed offensively to unconsenting adults. Decision of the case was contentious, and Miller was put over for reargument for October term 1973, and did not come down until June of 1973, with Burger prevailing by a bare 5-4 vote.
The Bench
The makeup of the supreme court and their opinions were:
Opinion
- Written by: Chief Justice Warren Burger
- Joined by: Justices Byron White, Harry Blackmun, Lewis Powell, and William Rehnquist
Dissenting
- Written by: Justice William O. Douglas
- Written by: Justice William J. Brennan
- Joined by: Justices Potter Stewart and Thurgood Marshall
The case
The question that the court had to decide was, is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? The Court ruled that it was not. It indicated that "obscene material is not protected by the First Amendment", thereby reaffirming part of Roth.
However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of expression," and said that "State statutes designed to regulate obscene materials must be carefully limited." The Court, in an attempt to set such limits devised a set of three criteria which must be met in order for a work to be legitimately subject to state regulation:
- the average person, applying contemporary community standards (not national standards, as some prior tests required), must find that the work, taken as a whole, appeals to the prurient interest;
- the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
- the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The third condition is also known as the "SLAPS test". The work is considered obscene only if all three conditions, which together constitute the Miller Test, are satisfied.
This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held that "all ideas having even the slightest redeeming social importance ... have the full protection of the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without redeeming social importance."
The Miller decision vacated the judgment of the Appellate Department of the Superior Court of California and remanded the case to that court for further proceedings consistent with the First Amendment standards established by the opinion.
Effects of the Decision
Miller provided states greater freedom in prosecuting purveyors of obscenity, and for the first time since Roth, a majority of the Court agreed on a definition of "obscenity." Hundreds of obscenity prosecutions went forward after Miller, and the Supreme Court began denying review of these state actions after years of reviewing many obscenity convictions (over 60 appeared on the Court's docket for the 1971-1972 term, pre-Miller). A companion case to Miller, Paris Adult Theatre v. Slaton, provided states with greater leeway to shut down adult movie houses. Controversy arose over Miller's "community standards" analysis, with critics charging that Miller encouraged "forum shopping" to prosecute national obscenity producers in locales with more restrictive obscenity laws.
In the years since Miller, many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and public nudity laws. These types of actions have been upheld by the Supreme Court. Additionally, in 1982's New York v. Ferber, the Court declared child pornography unprotected by the First Amendment, upholding the state of New York's ban on that material. In the recent Ashcroft v. ACLU line of cases, the Court, however, held "virtual child pornography" on the internet constitutionally protected.
See also
External links
- Text of the decision and dissents (http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/413/15.html), from findlaw.com
- Audio recordings or oral arguments and rearguments (http://www.oyez.org/oyez/resource/case/247/audioresources), from Oyez.org
- Info from Common Sense Americanism (http://www.csamerican.com/SC.asp?r=413+U.S.+15)