Miller v. California, 413 U.S. 15 (1973)

The owner of a California business that distributed pornographic books and films, Marvin Miller, mailed advertising materials that contained explicit sexual imagery from the books and films that he was promoting. When the owner of a restaurant in Newport Beach, California, and his mother opened an envelope containing five of the brochures, they alerted the police. Miller was arrested, charged, and convicted under a California law that banned selling, possessing, distributing, or publishing obscene materials. The law had been specifically crafted to comply with the Supreme Court's decision on obscenity and the First Amendment in Roth v. United States. A first conviction was defined as a misdemeanor.

During the trial, the judge had instructed the jury to use the community standards of California in determining whether the materials would be considered obscene. Miller then argued on appeal that these instructions had failed to comply with the Supreme Court's decision in Memoirs v. Massachusetts, which would require a national standard for obscenity because obscene works must be completely lacking in redeeming social value. In an unpublished decision, the appellate decision rejected this argument, and the state appellate court refused review.

Majority

• Warren Earl Burger (Author)
• Byron Raymond White
• Harry Andrew Blackmun
• Lewis Franklin Powell, Jr.
• William Hubbs Rehnquist

Vacating and remanding the state court decision, Burger reiterated that the First Amendment does not protect obscene speech and especially hardcore pornography but created a more detailed standard for determining whether material is obscene. He noted that any statutes prohibiting obscenity must be narrowly constructed and devised three factors to help state legislatures in formulating them. These were: 1) Whether the average person, applying contemporary community standards, would find that the work as a whole appeals to the prurient interest; 2) Whether the work depicts or describes sexual conduct or excretory functions, as defined by state law, in an offensive way; and 3) Whether the work as a whole lacks serious literary, artistic, political, or scientific value. Only if all three of these factors are satisfied can speech give rise to criminal liability as obscene matter. In developing this test, Burger refined the ruling in Memoirs that speech was only obscene if it had absolutely no redeeming value.

Dissent

• William Orville Douglas (Author)

Dissent

• William Joseph Brennan, Jr. (Author)
• Potter Stewart
• Thurgood Marshall

In addition to outlining the factors to consider in an obscenity determination, this decision moves responsibility for evaluating obscenity to the state and local courts. Miller made it easier for states to create laws that properly defined obscenity and provided a firmer basis for prosecution, and the Court soon began to decline review of obscenity cases, which flooded the dockets of state courts after this decision. However, the standard also has given rise to unanticipated complexities with the development of the Internet, which makes it harder to determine which community norms should be used.

Concerning a separate but related issue, the Court held in New York v. Ferber (1982) that child pornography is a categorical exception to the First Amendment, like obscenity, although not all sexually explicit material that appears to depict children might be outside constitutional protections. Zoning ordinances banning adult entertainment enterprises and public nudity laws are generally constitutional restrictions on speech.