Miller v. California

Under a California obscenity statute, Marvin Miller was convicted for mailing illustrated brochures advertising "adult" books. The California appeals court used the tests previously enunciated by the court to uphold Miller's conviction. The Supreme Court took up the case as an opportunity to reconsider its previous holdings.

The resulting 5–4 decision imposed a new test for determining obscenity. In a decision written by Chief Justice WARREN BURGER, the Court imposed a new three-part test for determining whether a work was obscene. Burger wrote: "The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (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."

In handing down this decision, Burger reaffirmed that obscenity and pornography are not protected by the FIRST AMENDMENT. He explicitly rejected the "utterly without redeeming social value" test in favor of the third prong of his formula, which was viewed as an easier standard for prosecutors to meet. He also stated that no one could be subjected to prosecution "for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hardcore' sexual conduct specifically defined by the regulating state law, as written or construed."

Burger went further than past Supreme Court decisions in attempting to define what would constitute hardcore pornography. While emphasizing that "it is not our function to propose regulatory schemes for the States" he said that "It is possible … to give a few plain examples of what a state statute could define for regulation: (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."

The companion case of Paris Adult Theatre I v. Slaton, handed down on the same day, ruled that as long as state laws met the Miller test, they could regulate hardcore pornography even if the showing of such pornography was limited to consenting adults. Chief Justice Burger, who wrote the majority opinion in Paris Adult Theatre, stated that "States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including socalled 'adult' theaters from which minors are excluded." Such regulations can be likened to when "legislatures and administrators act to protect the physical environment from POLLUTION and to preserve our resources of forests, streams, and parks, they must act on such imponderables as the impact of a new highway near or through an existing park or wilderness area," according to Burger.

The Miller and Paris Adult Theatre rulings did not meet with unanimous acclaim even when they were being handed down. In a dissent in Miller, Justice WILLIAM O. DOUGLAS wrote: "I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply." Despite such criticisms, both rulings remained the law of the land in regards to obscenity prosecutions. Subsequent Supreme Court rulings imposed a "reasonable person" standard on the third prong "serious value" test and allowed states to impose a more stringent criterion for CHILD PORNOGRAPHY. But as of 2003, Miller was undisturbed as the test for pornography and obscenity in U.S. courts.