MILLER v. CALIFORNIA 413 U.S. 15 (1973) PARIS ADULT THEATRE I v. SLATON 413 U.S. 49 (1973)

For the first time since roth v. united states (1957), a Supreme Court majority agreed on a definition of obscenity. The Court had adopted the practice of summarily reversing obscenity convictions when at least five Justices, even if not agreeing on the appropriate test, found the material protected. The states were without real guidelines; and the requirements of jacobellis v. ohio (1964) that each Justice review the material at issue had transformed the Court into an ultimate board of censorship review.

To escape from this "intractable" problem, the Miller Court reexamined obscenity standards. Chief Justice warren e. burger's majority opinion, reaffirming Roth, articulated specific safeguards to ensure that state obscenity regulations did not encroach upon protected speech. The Court announced that a work could constitutionally be held to be obscene when an affirmative answer was appropriate for each of three questions:

(a) whether "the average person applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interes.…;

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Three aspects of the Miller formula are noteworthy. First, the work need not be measured against a single national standard, but may be judged by state community standards. Second, state obscenity regulations must be confined to works that depict or describe sexual conduct. Moreover, the states must specifically define the nature of that sexual conduct to provide due notice to potential offenders. Third, the Court rejected the "utterly without redeeming social value" standard of memoirs v. massachusetts (1966). To merit first amendment protection, the work, viewed as a whole, must have serious social value. A token political or social comment will not redeem an otherwise obscene work; nor will a brief erotic passage condemn a serious work.

In a companion case, Paris Adult Theater I, the Court held that regulations concerning the public exhibition of obscenity, even in "adult" theaters excluding minors, were permissible if the Miller standards were met. The prohibition on privacy grounds against prosecuting possession of obscene material in one's home, recognized in stanleyv. georgia (1969), does not limit the state's power to regulate commerce in obscenity, even among consenting adults.

justice william j. brennan, joined by Justices potter j. stewart and thurgood marshall, dissented in both cases. Abandoning the views he expressed in Roth and Memoirs, Brennan concluded that the impossibility of definition rendered the outright suppression of obscenity irreconcilable with the First Amendment and the fourteenth amendment. The Court's inability to distinguish protected speech from unprotected speech created intolerable fair notice problems and chilled protected speech. Furthermore, "institutional stress" had resulted from the necessary case-by-case Supreme Court review. Instead of attempting to define obscenity, Brennan would balance the state regulatory interest against the law's potential danger to free expression. He recognized the protection of juveniles or unconsenting adults as a state interest justifying the suppression of obscenity. Justice william o. douglas, separately dissenting, also denounced the vague guidelines that sent persons to jail for violating standards they could not understand, construe, or apply.

The Court's attempt to articulate specific obscenity standards was successful to the extent it reduced the number of cases on the Supreme Court docket. Nevertheless, as Justice Brennan noted, and the history of obscenity decisions confirms, any obscenity definition is inherently vague. The Court thus remains the ultimate board of censorship review.

Kim Mc Lane Wardlaw
(1986)

Bibliography

Lockhard, William B. 1975 Escape from the Chill of Uncertainty. Georgia Law Review 9:533–587.