SCOTUS Wednesday: Miller v. California (1973)

(NOTE: I realize this is being published on a Tuesday. If you read the posts above, the reason for that will become more clear.)

Click here for a synopsis of the case and audio of the oral arguments. Click here for the full text of the decision.


The Background


Marvin Miller, the appellant, was one of the largest dealers in "adult material" on the West Coast. He dealt mainly in explicit books and magazines. In an attempt to sell more of his products, he sent out a mass mailing advertising some of these illustrated, ahem, picture books. This advertising not only included detailed descriptions of the books, but also featured pictures of nude males and females, most including full frontal shots depicting genitalia. One of these advertisements found its way to a restaurant in Newport Beach, CA where it was opened by the restaurant owner and his mother. They were offended by the material, had not requested it and took Miller to court.


The California state court found Miller guilty of a misdemeanor charge of "distributing obscene material," and ordered him to be fined. Miller took the case to the California Court of Appeals and the decision of the lower court was upheld. Miller then decided that the California Penal Code section under which he was convicted conflicted with his rights to free speech, claiming that the materials that he distributed were covered under the First Amendment.


The Question


Is the sale and distribution of obscene materials by mail protected by the free speech guarantee in the First Amendment?



The Precedents


Before 1973, the prevailing test for obscenity was the court's decision in Roth v. United States (1957). In Roth, the Court repudiated the old Common Law standard for obscenity defined in the 1868 case of Hicklin v. Regina from Great Britain. The test for obscenity in Hicklin allowed material to be banned that tended to "deprave and corrupt those minds who are open to such influences."


In a 6-3 decision in Roth, the Court decided to further define the test for obscenity. In the majority opinion written by William J. Brennan, the Court defined as obscene any material whose "dominant theme taken as a whole appeals to the prurient interest to the average person applying contemporary community standards." Only material that meets this test could be banned as obscene.


Although this further defined material considered as obscene, Brennan reaffirmed that obscenity was not protected by the First Amendment and upheld the conviction of Roth that brought the case to the court. First Amendment "literalists" Hugo Black and William O. Douglas dissented in Roth, stating clearly that obscenity was protected speech.


What followed Roth were several decisions on which the Court could not conclusively decide on a further test for obscenity. 1964's Jacobellis v. Ohio found that a movie theater owner could not be held responsible for showing a movie that didn't quite meet the Roth test for obscenity. This case, by the way, also saw the coining of the most famous phrase in the history of American obscenity law. Potter Stewart, in his concurrence with the majority opinion, 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 (emphasis added)."

As if that was not ambiguous enough, in Memoirs v. Massachusetts (1966), the court ruled that a piece of literature (John Cleland's Fanny Hill, written in 1750) might be "patently offensive," but it was not completely without social value. This decision also showed how split the court was on obscenity, with four justices writing special concurrences because they could not unanimously agree with the majority opinion written by Brennan.

The Decision and Dissents

The court held that:

• "Obscene materials are defined as those that the average person, applying contemporary community standards, find, taken as a whole, appeal to the prurient interest; that depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law; and that, taken as a whole, lack serious literary, artistic, political, or scientific value."

O.K. So, what the hell does that mean in English? It basically means that the Roth test was overturned and a new definition was added to the old one to form a new federal test for obscenity. The "taken as a whole, lack serious literary, artistic, political or scientific value" part tries to further define the sort of works that can be deemed obscene and banned by the states.

The court split 5-4 in this decision with Chief Justice Warren Burger, Byron White, Harry Blackmun, Lewis Powell and William Rehnquist making up the majority and William O. Douglas, Brennan, Thurgood Marshall and Potter Stewart making up the dissenting side.

Chief Justice Warren Burger wrote the opinion for the majority. He had pushed during the deliberations for a "looser" definition of obscenity to open the door for more state-level prosecutions. His opinion is summarized by the above definition.

The dissents in this case were by William O. Douglas and Brennan. Douglas dissented on the basis of his belief in the absolute letter of the First Amendment (as he had done in Roth). Brennan, as you can see, had a change of heart since his opinion in Roth in 1957. He was now of the mind, similar to Douglas and Black, that all obscenity is protected speech unless it is distributed to minors or exposed offensively to adults without their consent.

The Significance

Miller is a landmark case in that it redefined the standard by which obscenity is judged. Most importantly, and worryingly, it further defined the community standards idea.

Why does this worry me? Well, think about it. This is saying that what is obscene in Massachusetts is different than what is obscene in, say, Utah. In a general sense, this might be true.

At a deeper level, however, I agree with Brennan and Douglas on this case. The First Amendment protection for free speech is as extensive as the many forms that speech itself takes. To say that "contemporary community standards" are to rule is to say that these standards are somehow agreed upon by all members of the community.

Now, how is this really possible? This applies a utilitarian notion of "greatest good for the greatest number" to an issue that, for me, is all about an individual right. I do agree that distribution of obscene materials to minors and showing them to unconsenting adults are not really defensible (although one can argue over whether our definition of "minor" is really a good one).

Apart from these groups, though, I am not sure how the state can have the power to regulate what sort of speech I create and to whom I deliver this speech in a media of one form or another. As Brennan argues, the First Amendment is there to protect the rights of individuals to have access to whatever forms of speech they'd like, regardless of their perceived "value."

In other words, I am not sure that the idea of "contemporary community standards" can ever be brought into line with the letter (or the spirit, come to it) of the First Amendment. Obscenity is a form of speech and I should not be limited in my consumption of it if I so choose.

So, the next time you hear swear words on television, buy porn or go to a strip club, think of yourself as a warrior in the battle for the First Amendment. To hell with your "community's standards." Seek out the speech you want and don't let anyone stand in your way.

It is our right and we need to use it everyday.

Because with rights, it's use 'em or lose 'em.