Marvin Miller conducted a mass mailing campaign advertising the sale of sexually explicit books and films. He sent unsolicited brochures depicting sexual activity and nudity to restaurants and other recipients in California. Miller was convicted under a California statute prohibiting the distribution of obscene material. He challenged the conviction on First Amendment grounds, arguing the materials were protected expression.
What constitutional standard governs when sexually explicit material is obscene and therefore unprotected by the First Amendment?
Obscene material is not protected by the First Amendment. Material is obscene if (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Yes. The Court upheld the authority of states to regulate obscene material and announced a new three-part test for obscenity. It vacated the judgment and remanded for reconsideration under the standards set out in the opinion.
The Court rejected the prior approach as too unclear and concluded that states need greater flexibility to regulate hard-core sexual material without violating the First Amendment. It emphasized that obscenity is historically outside First Amendment protection, but that regulation must be limited to works depicting sexual conduct specifically defined by state law. The Court also refused to require a national standard for offensiveness, allowing local community standards to govern. At the same time, it added the requirement that the work lack serious literary, artistic, political, or scientific value to avoid suppressing protected expression.
Justice Douglas dissented, arguing that obscenity regulation lacks a clear constitutional basis and invites censorship based on subjective moral judgments. Justice Brennan, joined in relevant part by Justices Stewart and Marshall, also dissented, concluding that the Court's obscenity doctrine had proven unworkable and that most sexually explicit material for consenting adults should be protected.
Miller is the leading modern obscenity case and established the controlling three-part 'Miller test' for determining when sexual expression falls outside First Amendment protection. It reshaped and narrowed earlier doctrine from Roth v. United States, 354 U.S. 476 (1957), Memoirs v. Massachusetts, 383 U.S. 413 (1966), and Redrup v. New York, 386 U.S. 767 (1967). Its companion and follow-on cases include Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), Jenkins v. Georgia, 418 U.S. 153 (1974), and Hamling v. United States, 418 U.S. 87 (1974).
Roth v. United States, 354 U.S. 476 (1957) |
Abstain |
Memoirs v. Massachusetts, 383 U.S. 413 (1966) |
Abstain |
Redrup v. New York, 386 U.S. 767 (1967) |
Abstain |
Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) |
Abstain |
Jenkins v. Georgia, 418 U.S. 153 (1974) |
Abstain |
Hamling v. United States, 418 U.S. 87 (1974) |
Abstain |
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