Miller v. California

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Miller v. California
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued January 18–19, 1972
Reargued November 7, 1972
Decided June 21, 1973
Full case nameMarvin Miller v. State of California
Citations413 U.S. 15 ( more )
93 S. Ct. 2607; 37 L. Ed. 2d 419; 1973 U.S. LEXIS 149; 1 Media L. Rep. 144.1
Case history
PriorSummary affirmation of jury verdict by Appellate Department, Superior Court of California, County of Orange, was unpublished.
Holding
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 or excretory functions specifically defined by applicable state law; and that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William O. Douglas  · William J. Brennan Jr.
Potter Stewart  · Byron White
Thurgood Marshall  · Harry Blackmun
Lewis F. Powell Jr.  · William Rehnquist
Case opinions
MajorityBurger, joined by White, Blackmun, Powell, Rehnquist
DissentDouglas
DissentBrennan, joined by Stewart, Marshall
Laws applied
U.S. Const. amend. I; Cal. Penal Code 311.2(a)

Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court clarifying the legal definition of obscenity as material that lacks "serious literary, artistic, political, or scientific value". [1] The ruling was the origin of the three-part judicial test for determining obscene media content that can be banned by government authorities, which is now known as the Miller test. [2]

Contents

Background

In 1971, Marvin Miller, owner of a California mail-order business specializing in pornographic films and books, mass-mailed a brochure advertising products that graphically depicted sexual activity between men and women. Five of the brochures were mailed to a restaurant in Newport Beach, California. The owner and his mother opened the envelope and seeing the brochures, called the police. [3]

Miller was arrested and charged with violating California Penal Code 311.2(a) which says in part: "Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, [...] any obscene matter is for a first offense, guilty of a misdemeanor." [4] California lawmakers wrote the statute based on two previous Supreme Court obscenity rulings: [5] Memoirs v. Massachusetts [6] and Roth v. United States . [7]

Miller was tried by jury at the Superior Court of Orange County. The judge instructed the jury to evaluate the evidence by the community standards of California as defined by the statute. [8] The jury returned a guilty verdict. [1]

Miller appealed to the Appellate Division of the Superior Court, arguing that the jury instructions did not use the standard set in Memoirs v. Massachusetts which said that in order to be judged obscene, materials must be "utterly without redeeming social value." [6] The appellate division rejected this argument and upheld the jury verdict. Miller then filed an appeal with the California Court of Appeal for the Third District, which declined to review the lower court rulings. [1]

Adopting a freedom of speech argument, Miller applied to the U.S. Supreme Court for certiorari, which was granted. The first oral arguments were heard in January 1972. [1]

Supreme Court precedents on obscenity

The U.S. Supreme Court granted certiorari to Miller because the California statute at issue was based on two previous obscenity precedents that the Court wanted to revisit. Chief Justice Warren Burger believed that the Court's obscenity jurisprudence was misguided and that governments should be given more leeway to ban obscene materials. Burger pushed for a looser definition of "obscenity" which would allow local prosecutions. Meanwhile, Justice William J. Brennan, Jr., pushed for First Amendment protection for all "obscenity" unless distributed to minors or exposed offensively to unconsenting adults. These disagreements among the Justices resulted in three different hearings, pushing Miller's case into 1973. [9] [10]

Since the Roth v. United States ruling in 1957, [7] the Supreme Court had struggled to define what embodied constitutionally unprotected obscene material. Under the Comstock laws controlling mail distribution that prevailed before Roth, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. [1] Roth defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards". Only material meeting this test could now be banned as "obscene". [11]

In Jacobellis v. Ohio in 1964, about a state ban of an adult-oriented film, Justice Potter Stewart opined that the Court "was faced with the task of trying to define what may be indefinable," and that criminal laws were constitutionally limited to hardcore pornography, which he did not try to define: "perhaps I could never succeed in intelligibly doing so. But I know it when I see it." [12] In Memoirs v. Massachusetts in 1966, the Supreme Court refined the Roth test to material that is "patently offensive" and "utterly without redeeming social value." [6] These precedents resulted in an unclear definition of obscene material that could be banned by government authorities. [5]

Opinion of the Court

Miller had based his appeal in California on the Memoirs v. Massachusetts precedent, particularly its test for material without any redeeming social value. Miller believed that such material had value for consenting adults who purchased it voluntarily. [1] Per this argument positioning such material as items of expression, the question before the Court was whether the sale and distribution of that material was protected under the First Amendment's guarantee of freedom of speech. The court determined that the material at issue in Miller's case was pornography that could have been banned under the Roth precedent. [1]

However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of expression," and said that "State statutes designed to regulate obscene materials must be carefully limited." [1] The Court, in an attempt to set such limits, devised a set of three criteria which must be met for a media item to be legitimately subjected to state regulatory bans:

  1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
  2. whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law; and
  3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. [1]

This test clarified the definition of obscenity originally set out in the Memoirs precedent. [6] This three-part analysis became known as the Miller test. [2]

The result of the ruling was that the Supreme Court overturned Miller's criminal conviction and remanded the case back to the California Superior Court for reconsideration of whether Miller had committed a misdemeanor. [5] On overturning Miller's conviction, the Court stated: "Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed." [1]

Impact and subsequent events

The Miller ruling, and particularly the resulting Miller test, was the Supreme Court's first comprehensive explication of obscene material that does not qualify for First Amendment protection and thus can be banned by governmental authorities. Furthermore, due to the three-part test's stringent requirements, very few types of content can now be completely banned, and material that is appropriate for consenting adults can only be partially restricted per delivery method. [13]

The ruling had no direct impact on government attempts to restrict live adult entertainment, which is largely addressed in another Supreme Court precedent from roughly the same period: Paris Adult Theatre I v. Slaton. [14]

Categories of media material that completely fail the Miller test, and thus can be completely banned by government authorities, have been narrowed down in later Supreme Court rulings. Child pornography was deemed to be unprotected by the First Amendment in New York v. Ferber in 1982, because it has no redeeming social value per the Miller test. [15] In Ashcroft v. Free Speech Coalition in 2002, however, the Court held that sexually explicit material that only appears to depict minors, but actually does not, might be exempt from obscenity rulings. [16]

The "community standards" portion of the Miller test is of particular relevance with the rise of the Internet, as materials believed by some to be "obscene" can be accessed from anywhere in the nation, including places where there is a greater concern than other areas of the nation. Enforcing and applying obscenity laws to the Internet have proven difficult. [13] Due to the difficulty in determining which "community" is most relevant, both the Child Pornography Prevention Act (CPPA) and the Child Online Protection Act (COPA) have had sections struck down as unconstitutional in cases such as Ashcroft v. Free Speech Coalition [16] and Ashcroft v. ACLU . [17]

See also

Related Research Articles

The Millertest, also called the three-prong obscenity test, is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.

Memoirs v. Massachusetts, 383 U.S. 413 (1966), was the United States Supreme Court decision that attempted to clarify a holding regarding obscenity made a decade earlier in Roth v. United States (1957).

Roth v. United States, 354 U.S. 476 (1957), along with its companion case Alberts v. California, was a landmark decision of the Supreme Court of the United States which redefined the constitutional test for determining what constitutes obscene material unprotected by the First Amendment. The Court, in an opinion by Justice William J. Brennan Jr. created a test to determine what constituted obscene material: Whether the average person, applying contemporary community standards would find that the material appeals to a prurient interest in sex, and whether the material was utterly without redeeming social value. Although the Court upheld Roth’s conviction and allowed some obscenity prosecutions, it drastically loosened obscenity laws. The decision dissatisfied both social conservatives who thought that it had gone too far in tolerating sexual imagery, and liberals who felt that it infringed on the rights of consenting adults.

Jacobellis v. Ohio, 378 U.S. 184 (1964), was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of the Louis Malle film The Lovers, which the state had deemed obscene.

<span class="mw-page-title-main">PROTECT Act of 2003</span> United States law regarding child abuse and violent crimes against children

The PROTECT Act of 2003 is a United States law with the stated intent of preventing child abuse as well as investigating and prosecuting violent crimes against children. "PROTECT" is a backronym which stands for "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today".

Stanley v. Georgia, 394 U.S. 557 (1969), was a U.S. Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law in the form of mere possession of obscene materials.

<i>United States v. Extreme Associates, Inc.</i>

United States v. Extreme Associates, 431 F.3d 150, is a 2005 U.S. law case revolving around issues of obscenity. Extreme Associates, a pornography company owned by Rob Zicari and his wife Lizzy Borden, was prosecuted by the federal government for alleged distribution of obscenity across state lines. After several years of legal proceedings, the matter ended on March 11, 2009, with a plea agreement by Rob Zicari and Lizzy Borden.

Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), followed by 542 U.S. 656 (2004), was a decision of the United States Supreme Court, ruling that the Child Online Protection Act (COPA) was unconstitutional as a violation of the First Amendment's guarantee of freedom of speech.

New York v. Ferber, 458 U.S. 747 (1982), was a landmark decision of the U.S Supreme Court, unanimously ruling that the First Amendment to the United States Constitution did not forbid states from banning the sale of material depicting children engaged in sexual activity, even if the material was not obscene.

The phrase "I know it when I see it" is a colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. It has been a common expression since at least the 19th century. A similar phrase appears in Arthur Conan Doyle's "The Hound of the Baskervilles," in which Sherlock Holmes comments on the quality of a portrait by stating "I know what is good when I see it." The phrase was used in 1964 by United States Supreme Court Justice Potter Stewart to describe his threshold test for obscenity in Jacobellis v. Ohio. In explaining why the material at issue in the case was not obscene under the Roth test, and therefore was protected speech that could not be censored, Stewart wrote:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], 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.

An obscenity is any utterance or act that strongly offends the prevalent morality and social politics of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be used to indicate strong moral repugnance and outrage, vile, vigilance in conservation, or revenge. In expressions such as "obscene profits" and "the obscenity of war," ; misdirection. As a legal term, it usually refers to graphic depictions of people engaged in sexual and excretory activity, and related utterances of profanity, or the exploited child, human being or situation on display.

An anti-pornography movement in the United States has existed since before the 1969 Supreme Court decision of Stanley v. Georgia, which held that people could view whatever they wished in the privacy of their own homes, by establishing an implied "right to privacy" in U.S. law. This led President Lyndon B. Johnson, with the backing of Congress, to appoint a commission to study pornography. The anti-pornography movement seeks to maintain or restore restrictions and to increase or create restrictions on the production, sale or distribution of pornography.

<i>Ashcroft v. Free Speech Coalition</i> 2002 United States Supreme Court case

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), is a U.S. Supreme Court case that struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech". The case was brought against the U.S. government by the Free Speech Coalition, a "California trade association for the adult-entertainment industry", along with Bold Type, Inc., a "publisher of a book advocating the nudist lifestyle"; Jim Gingerich, who paints nudes; and Ron Raffaelli, a photographer who specialized in erotic images. By striking down these two provisions, the Court rejected an invitation to increase the amount of speech that would be categorically outside the protection of the First Amendment.

<i>United States v. Kilbride</i>

United States v. Kilbride, 584 F.3d 1240 is a case from the United States Court of Appeals for the Ninth Circuit rejecting an appeal from two individuals convicted of violating the Can Spam Act and United States obscenity law. The defendants were appealing convictions on 8 counts from the District Court of Arizona for distributing pornographic spam via email. The second count which the defendants were found guilty of involved the falsification of the "From" field of email headers, which is illegal to do multiple times in commercial settings under 18 USC § 1037(a)(3). The case is particularly notable because of the majority opinion on obscenity, in which Judge Fletcher writes an argument endorsing the use of a national community obscenity standard for the internet.

<i>United States v. Thirty-seven Photographs</i> 1971 United States Supreme Court case

United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), is a United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material. A 6–3 court held that the federal statute governing the seizures was not in violation of the First Amendment as long as the government began forfeiture proceedings within 14 days of the seizure.

<i>United States v. 12 200-ft. Reels of Film</i> 1973 United States Supreme Court case

United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was an in rem case decided by the United States Supreme Court that considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.

United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene, as well as to issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and there are differences among such laws. Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting of "indecent" material during specified hours.

Marks v. United States, 430 U.S. 188 (1977), is a case decided by the Supreme Court of the United States that explained how the holding of a case should be viewed where there is no majority supporting the rationale of any opinion.

Heller v. New York, 413 U.S. 483 (1973), was a United States Supreme Court decision which upheld that states could make laws limiting the distribution of obscene material, provided that these laws were consistent with the Miller test for obscene material established by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). Heller was initially convicted for showing a sexually explicit film in the movie theater which he owned, under New York Penal Law § 235.0 which stated that and individual “is guilty of obscenity when, knowing its content and character, he 1. Promotes, or possesses with intent to promote, any obscene material; or 2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity."

Rabe v. Washington, 405 U.S. 313 (1972), was a decision by the United States Supreme Court involving the application of obscenity laws and criminal procedure to the states. On 29 August 1968, William Rabe, the manager of a drive-in movie theater in Richland, Washington, was arrested on obscenity charges for showing the film Carmen, Baby. Due to First Amendment concerns, the local court convicted Rabe not on the basis that the film as a whole was obscene, but that exhibiting it in a drive-in theater was. The Supreme Court reversed the conviction holding that the citizens of Washington had no notice under the Sixth Amendment that the place where a film was shown was an element of the offense.

References

  1. 1 2 3 4 5 6 7 8 9 10 Miller v. California, 413 U.S 15 (S. Ct., 1973).
  2. 1 2 Delta, George B. Law of the Internet. Matsuura, Jeffrey H. (Third ed.). New York. ISBN   9780735575592. OCLC   255899673.
  3. ↑ John Henry Merryman, Albert Edward Elsen, Stephen K. Urice, Law, Ethics, and the Visual Arts, (Frederick, MD: Aspen Publishers, 2007) 687
  4. ↑ "California Penal Code Section 311.2 – California Attorney Resources – California Laws". Law.onecle.com. February 22, 2013. Retrieved April 3, 2013.
  5. 1 2 3 Beverly G. Miller, Miller v. California: A Cold Shower for the First Amendment , 48 St. John's L. Rev. 568 (1974).
  6. 1 2 3 4 Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U.S. 413 (S.Ct., 1966).
  7. 1 2 Roth v. United States, 354 U.S. 476 (S. Ct., 1957).
  8. ↑ "Three Prong Obscenity Test". Courses.cs.vt.edu. Retrieved April 3, 2013.
  9. ↑ "Miller vs. California. (2011, January 26)". www.casebriefs.com. Retrieved February 21, 2012.
  10. ↑ "MILLER v. CALIFORNIA. The Oyez Project at IIT Chicago-Kent College of Law". February 18, 2012.
  11. ↑ Cline, Austin (May 15, 2019). "What Did Roth v. United States Say About Obscenity?". ThoughtCo. Retrieved May 31, 2019.
  12. ↑ Jacobellis v. Ohio , 378 U.S. 184, 197 (1964) (Stewart, J., concurring); Paul Gewirtz, On I Know It When I See It , 105 Yale L.J. 1023 (1996).
  13. 1 2 Godwin, Mike (October 2001). "Standards Issue – The Supreme Court, "community standards," and the Internet". Reason Foundation . Retrieved October 11, 2012.
  14. ↑ Paris Adult Theatre I v. Slaton, 413 U.S. 49 (S. Ct., 1973).
  15. ↑ New York v. Ferber, 458 U.S. 747 (S. Ct., 1982).
  16. 1 2 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (S. Ct., 2002).
  17. ↑ Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002).

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