Marvin Miller was convicted by a state court jury in Orange County, California, of distributing obscene material. He mailed five unsolicited advertising brochures for adult books and a film to a restaurant whose manager complained to the police. The brochures displayed an array of photographs of sexual activity. The conviction was affirmed by a state appeals court.
Although the charge against Miller was only a misdemeanor and the state courts did not issue any written decisions, the U.S. Supreme Court agreed to hear Miller’s case. The reason was that a new majority of the Court, led by Chief Justice Warren E. Burger, was ready to reconsider the relationship between the First Amendment guarantee of freedom of speech and government censorship of sexually explicit material.
For a dozen years before Miller, the Supreme Court had wrestled with the definition of obscenity. In 1957, in Roth v. U.S., the Supreme Court, in an opinion by Justice William J. Brennan, Jr., said that obscene material was outside the protection of the First Amendment; the Court defined obscenity as sexual material that appeals to the ‘‘prurient interest’’ and stressed that this category should be narrow in scope. This effort at setting a standard satisfied no one on the Court or elsewhere, so throughout the 1960s the justices repeatedly revisited the issue and tried to refine or revamp the legal definition of obscenity.
This effort led ultimately to the Miller decision. Writing for a five-to-four majority, Burger said his aim was to ‘‘formulate standards more concrete than those in the past.’’ The result was a three-part test cobbled together from various prior decisions, but also modifying those precedents. To find material obscene, illegal, and unprotected by the First Amendment, Burger said, the legal questions are (1) whether the ‘‘average person’’ using ‘‘contemporary community standards’’ would find that the material appealed to the ‘‘prurient interest’’; (2) whether sexual conduct regulated by a state’s law is shown or described in a ‘‘patently offensive’’ way; and (3) whether the work viewed in its entirety ‘‘lacks serious literary, artistic, political, or scientific value.’’ Burger said that definitions would be left to the states, but that the term‘‘patently offensive’’ in the second part of the test might include descriptions or depictions of actual or simulated ‘‘ultimate sexual acts’’ and of ‘‘masturbation, excretory functions, and lewd exhibition of the genitals.’’
Burger’s opinion attempted to make a number of things clear about obscenity law. First, it contemplated that obscenity prosecutions would not involve a uniform, national standard but would vary from state to state, according to contemporary community standards and state law for each locale. ‘‘It is neither realistic nor constitutionally sound to read theFirst Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City,’’ Burger wrote.
Second, Burger rejected a more speech-protective standard that a plurality of the Court had adopted in 1966. In Memoirs v. Massachusetts, the plurality said a work could only be obscene if it were ‘‘utterly without redeeming social value,’’ but Burger said in Miller that there was no reason to adhere to the standard since it had never garnered majority support.
From the decision in Roth until Miller, it was Justice Brennan who tried repeatedly to come up with a workable standard to differentiate between sexually explicit material protected by the First Amendment and obscene material that was unprotected. But even as the majority in Miller settled on a new place to draw that line, Brennan decided that there was no way to distinguish. In a dissent in the companion case to Miller, Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), Brennan said obscenity could not be defined with sufficient clarity and that the First Amendment should not permit prosecution of obscenity involving consenting adults.
The Miller test has required some tune-ups but remains the operative standard for obscenity cases. In Jenkins v. Georgia, 418 U.S. 153 (1974), one year later, the Court made clear that the term ‘‘patently offensive’’ did not confer unbridled discretion on local juries and had to implicate ‘‘hard core’’ sexual activity. In Pope v. Illinois, 481 U.S. 497 (1987), the Court said that the third part of the test involving the ‘‘value’’ of the work was not intended to be a local standard but should be based on the values of the ‘‘reasonable person.’’
The Miller ruling seems to have resolved few of the issues and problems that existed prior to the decision. ‘‘Virtually every word and phrase in the Miller test has been the subject of extensive litigation and substantial commentary in the legal literature,’’ the Attorney General’s Commission on Pornography observed in 1986.
One thing the decision accomplished is that the Supreme Court got out of the practice it followed in the 1960s of having to review every obscenity appeal to weigh the evidence and make a determination of whether the material was obscene. The Court was able to step back and decide obscenity cases only when the legal standard needed changing or fine-tuning.
But four themes developed in the wake of Miller and have remained central in debate over obscenity. One is the criticism that government has failed to adequately prosecute obscenity cases. On several occasions since Miller, U.S. attorneys general have announced stepped-up efforts to focus on obscenity prosecutions, but the results are difficult to quantify. Related to this issue, a second theme is how to deal with the vast proliferation of sexually explicit material available through new technologies that were not prevalent when Miller was decided, from the Internet to cable television to handheld video players. A third theme is a long-running debate over whether sexually explicit material should be viewed as harmful to women—whether it actually causes gender violence or contributes to the degradation of the status of women.
A fourth theme is the continuing values debate over the degree to which sexually explicit material should be considered protected not just by free-speech standards but also by societal notions of personal privacy. The Supreme Court’s 2003 decision striking down a Texas sodomy law (Lawrence v. Texas, 539 U.S. 558) fueled the legal argument that consensual sexual activity involving adults should be protected by privacy doctrines.
STEPHEN J. WERMIEL
References and Further Reading
Cases and Statutes Cited
See also A Book Named ‘‘John Cleland’s Memoirs of a Woman of Pleasure’’ v. Massachusetts, 383 U.S. 413 (1966); Burger, Warren E.; First Amendment and PACs; Freedom of Speech: Modern Period (1917– Present); Jenkins v. Georgia, 418 U.S. 153 (1974); Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973); Pope v. Illinois, 481 U.S. 497 (1987); Privacy; Roth v. United States, 354 U.S. 476 (1957)