Miller v. California - Pre-miller Obscenity Cases

Miller v. California and its companion case, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446, (1973), marked the culmination of a period when the Supreme Court laid down several tests for obscenity, the most famous and succinct of which was Justice Potter Stewart's comment in his concurrence in Jacobellis v. State of Ohio 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964), "I know it when I see it." For years, U.S. courts had generally followed the definition of obscenity contained in the 1868 British case, Regina v. 3 L.R.-Q.B. 360 (1868). That case said the definition of obscenity was "whether the tendency of the matter charged is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall." Courts differed as to whether just one passage of the material was sufficient to prove this tendency or whether the work had to be examined as a whole.

But in 1957, the Supreme Court explicitly rejected Regina v. Hicklin in ROTH V. UNITED STATES 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498,(1957). In that case, a divided Supreme Court first ruled for the first time that obscenity was beyond constitutional protection. The Court went on to rule that the new standard for judging obscenity was whether to an average person, applying contemporary community standards, the dominant theme of material taken as a whole appealed to prurient interest. In imposing an average person standard, the Court departed from Hicklin's more broad definition to allow a finding of obscenity wherever there were "minds open to … immoral influences."

Unfortunately, the Supreme Court's obscenity test in Roth seemed to create more problems than it solved, for both lower courts and the high court itself, partially because it proved difficult to determine who the average person in a community was and whether local, state, or national standards were to be applied in trying to divine this person. Also, measuring the dominance of obscenity within a piece of material was not an easy task for most courts. In A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1, (1966), the high court further added that the material in question had to be utterly without redeeming social value, a standard that many prosecutors complained was almost impossible to meet.

With all the confusion, the stage was set for the court to make a definitive statement on obscenity. This is what the court tried to do in Miller v. California. But for years after the decision was handed down, commentators debated whether the court had succeeded.