Miller v. California

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Miller v. California
Seal of the United States Supreme Court.svg
Argued January 18–19, 1972
Reargued November 7, 1972
Decided June 21, 1973
Full case name Marvin Miller v. State of California
Citations 413 U.S. 15 (more)
93 S. Ct. 2607; 37 L. Ed. 2d 419; 1973 U.S. LEXIS 149; 1 Media L. Rep. 144.1
Prior history Summary affirmation of jury verdict by Appellate Department, Superior Court of California, County of Orange, was unpublished.
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, lack 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
Majority Burger, joined by White, Blackmun, Powell, Rehnquist
Dissent Douglas
Dissent Brennan, 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),[1] is a landmark decision by the United States Supreme Court wherein the court redefined its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value". It is now referred to as the three-prong standard or the Miller test, with the third prong being informally known by the initialism and mnemonic device "SLAPS" or the term "SLAPS test".


In 1971, Marvin Miller, an owner/operator of a California mail-order business specializing in pornographic films and books, sent out a brochure advertising books and a film that graphically depicted sexual activity between men and women. The brochure used in the mailing contained graphic images from the books and the film. 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.[2]

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, or in this state possesses, prepares, publishes, produces, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is for a first offense, guilty of a misdemeanor."[3] California lawmakers wrote the statute based on two previous Supreme Court obscenity cases, Memoirs v. Massachusetts and Roth v. United States.[4]

Miller was tried by jury in the Superior Court of Orange County. At the conclusion of the evidence phase, the judge instructed the jury to evaluate the evidence by the community standards of California, i.e., as defined by the statute.[5] The jury returned a guilty verdict.

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". Miller argued that only a national standard for obscenity could be applied.[6] The appellate division rejected the argument and affirmed the jury verdict. Miller then filed an appeal with the California Court of Appeal for the Third District, which declined to review. Miller applied to the Supreme Court for certiorari, which was granted. Oral arguments were heard in January 1972.[6]

Previous Supreme Court decisions on obscenity[edit]

The U.S. Supreme Court granted certiorari to Miller because the California law was based on its two previous obscenity cases which the Court wanted to revisit. Chief Justice Warren Burger came to the Court in 1969 believing that the Court's obscenity jurisprudence was misguided and governments should be given more leeway to ban obscene materials. In consideration of Miller in May and June 1972, Burger pushed successfully for a looser definition of "obscenity" which would allow local prosecutions, while Justice William J. Brennan, Jr., who by now also believed the Roth and Memoirs tests should be abandoned, led the charge for protecting all "obscenity" unless distributed to minors or exposed offensively to unconsenting adults. Decision of the case was contentious, and Miller was put over for reargument for October term 1972, and did not come down until June 1973, with Burger prevailing with a 5–4 vote.[1] [7] [8]

Since the Court's decision in Roth v. United States, 354 U.S. 476 (1957), the Court had struggled to define what constituted constitutionally unprotected obscene material. Under the Comstock laws that prevailed before Roth, articulated most famously in the 1868 English case Regina v. Hicklin, 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. Thus, works by Balzac, Flaubert, James Joyce, and D. H. Lawrence were banned based on isolated passages and the effect they might have on children. Roth repudiated the Hicklin test and 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 now meeting this test could be banned as "obscene".

In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of the Court further redefined the Roth test by holding unprotected only that which is "patently offensive" and "utterly without redeeming social value," but no opinion in that case could command a majority of the Court either, and the state of the law in the obscenity field remained confused. In Jacobellis v. Ohio, 1964, Justice Potter Stewart refused to give a definition of pornographic obscenity, stating he could not "intelligibly do so" and that the court was "faced with the task of defining the undefinable". Despite Justice Stewart's unwillingness to define obscenity he is attributed to the quote, "But I know it when I see it".[9] Other Justices, including Justice Hugo Black in Mishkin v. New York, had equally been unwilling to clearly define what pornography could be prohibited by the First Amendment.

Supreme Court decision[edit]

Miller had based his appeal in California on Memoirs v. Massachusetts. The Court rejected that argument. The question before the court was whether the sale and distribution of obscene material was protected under the First Amendment's guarantee of Freedom of Speech. The Court ruled that it was not. It indicated that "obscene material is not protected by the First Amendment", especially that of hardcore pornography, thereby reaffirming part of Roth.[10][11]

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."[12] The Court, in an attempt to set such limits devised a set of three criteria which must be met for a work to be legitimately subject to state regulation:

  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 (the syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion); and
  3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[13]

This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held that "all ideas having even the slightest redeeming social importance ... have the full protection of the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without redeeming social importance".[14]

The Miller decision vacated the jury verdict and remanded the case back to the California Superior Court.

Effects of the decision[edit]

Miller provided states greater freedom in prosecuting alleged purveyors of "obscene" material because, for the first time since Roth, a majority of the Court agreed on a definition of "obscenity". Hundreds of "obscenity" prosecutions went forward after Miller, and the Supreme Court began denying review of these state actions after years of reviewing many "obscenity" convictions (over 60 appeared on the Court's docket for the 1971–72 term, pre-Miller). A companion case to Miller, Paris Adult Theatre I v. Slaton, provided states with greater leeway to shut down adult movie houses. Controversy arose over Miller's "community standards" analysis, with critics charging that Miller encouraged forum shopping to prosecute national producers of what some believe to be "obscenity" in locales where community standards differ substantially from the rest of the nation. For example, under the "community standards" prong of the Miller test, what might be considered "obscene" in Massachusetts might not be considered "obscene" in Utah, or the opposite might be true; in any event, prosecutors tend to bring charges in locales where they believe that they will prevail.

The "community standards" portion of the decision 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 about "obscenity" than other areas of the nation. Enforcing and applying obscenity laws to the Internet have proven difficult. 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 and Ashcroft v. ACLU.[15]

In the years since Miller, many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and public nudity laws. These types of actions have been upheld by the Supreme Court.

Following the Miller vs. California decision, the criteria for applying the obscenity exception became much more difficult. As a result, the number of prosecutions for obscenity were reduced which resulted in widespread growth of the adult film industry.[16]

Additionally, in 1982's New York v. Ferber[17] the Court declared child pornography is unprotected by the First Amendment, upholding the state of New York's ban on that material. In the 2002 Ashcroft v. Free Speech Coalition[15] case, however, the Court held that sexually explicit material that appears to depict minors might be constitutionally protected.

In American Booksellers Foundation for Free Expression v. Strickland, plaintiffs American Booksellers Foundation for Free Expression, joined by various publishers, retailers, and web site operators, sued Ohio's Attorney General and Ohio county prosecutors in United States District Court for the Southern District of Ohio. Plaintiffs alleged that Ohio Revised Code §2907.01(E) and (J), which prohibited the dissemination or display of "materials harmful to juveniles", unconstitutionally violated both the First Amendment and the Commerce Clause of the Constitution. Plaintiffs specifically challenged the statute's definition of "harmful to juveniles", as well as the provisions governing internet dissemination of those materials. The court held the statute unconstitutional because the statute's definition of "material harmful to minors" did not comply with Miller. Defendants appealed the decision to the Sixth Circuit.

Basic case law resulting from this case[edit]

Obscenity is not protected by the First Amendment and thus can be regulated by the state. However, the state must conform to the three-part test of Miller v. California:

  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, specifically defined by applicable state law; and
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[13]

See also[edit]


  1. ^ a b Miller v. California, 413 U.S. 15 (1973).  This article incorporates public domain material from this U.S government document.
  2. ^ John Henry Merryman, albert Edward Elsen, Stephen K. Urice, Law, Ethics, and the Visual Arts, (Frederick, MD: Aspen Publishers, 2007) 687
  3. ^ "California Penal Code Section 311.2 - California Attorney Resources - California Laws". 2013-02-22. Retrieved 2013-04-03. 
  4. ^ Miller, Beverly G. (1974) "Miller v. California: A Cold Shower for the First Amendment," St. John Law Review, Vol. 48: Iss 3, Article 10.
  5. ^ "Three Prong Obscenity Test". Retrieved 2013-04-03. 
  6. ^ a b Kymber Crawford (1972-11-07). "Miller v. California - Significance - Court, Materials, Standard, and Obscene - JRank Articles". Retrieved 2013-04-03. 
  7. ^ "Miller vs. California. (2011, January 26)". Retrieved February 21, 2012. 
  8. ^ "MILLER v. CALIFORNIA. The Oyez Project at IIT Chicago-Kent College of Law". 18 February 2012. 
  9. ^ Gewirtz, Paul. "On 'I know it when I see it.' (Supreme Court Justice Potter Stewart's famous opinion regarding pornography)." Yale Law Journal, Jan. 1996, pp. 1023-1047.
  10. ^ Miller v. California, 413 U.S. at 36.
  11. ^ Miller v. California, 413 U.S. 15, 27. "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."
  12. ^ Miller, 413 U.S. at 23-24.
  13. ^ a b Miller, 413 U.S. at 24-25.
  14. ^ Memoirs v. Massachusetts, 383 U.S. 413 (1966).
  15. ^ a b Mota, Sue Ann. "The U.S. Supreme Court addresses the Child Pornography Prevention Act and Child Online Protection Act in Ashcroft v. Free Speech Coalition and Ashcroft v. American Civil Liberties Union." Federal Communications Law Journal, Dec. 2002, p. 85+.
  16. ^ Legarre, Santiago; Mitchell, Gregory J. (May 2017). "Secondary effects and public morality". Harvard Journal of Law & Public Policy. p. 321. Retrieved 1 September 2017. 
  17. ^ Vile, John R. and David A. Schultz. The Encyclopedia of Civil Liberties in America. Routledge, 2011.

Further reading[edit]

  • Tuman, Joseph (2003). "Miller v. California". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 187–202. ISBN 0-8173-1301-X. 

External links[edit]