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Miller v. California
[413 U.S. 15]
Burger Court,  Decided 5-4,  6/21/1973
Read the actual decision


Chief Justice Warren BurgerMiller was the second major case, after Roth (1957), to test the applicability of the First Amendment guarantee of Free Speech to the possession, display and sale of pornography. In Miller, the Court attempted to create precise standards that would define what is obscene, standards that have since been challenged as not precise at all. As such, the prevention of blatant public obscenity has remained elusive.

As it had in Roth, the Miller Court decided that the First Amendment did not give blanket protection to the public -- or sometimes even the private -- use, display and purveyance of obscenity. The problem had always been, and continued to be, defining what constituted the obscene. In his majority opinion in this case, Chief Justice Warren Burger attempted to establish more precise standards than those expounded in Roth. He said that materials could only be found obscene if ...

  • "...the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; [and]
  • the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
  • the work, taken as a whole, lacks serious literary, artistic, political or scientific value."
Justice Burger went on to limit the scope of obscenity to "patently offensive 'hard core' sexual conduct".

The use of the term "community standards" was a first attempt to define standards of obscenity locally, rather than nationally. But the breadth of Justice Burger's definition -- to include such vague considerations as "political value" -- left many more avenues for argument than the simple "prurient interest" test in Roth.

Many felt at the time that the application of local standards would lead to a wide difference in obscenity laws, but that did not turn out to be the case. The scope of community standards was narrowed the next year in Jenkins v. Georgia, when the Court found that the film "Carnal Knowledge" could not be banned as "patently offensive" to the local community and, in Pope v. Illinois v. U.S. (1987), further found that the test for literary, artistic, political or scientific value, had to be based upon national, not local, standards. In essence, this latter test is so broad and subject to argument as to entirely moot the Miller standards.

In Miller's companion case, Paris Adult Theatre v. Slaton, the Court reaffirmed the Roth finding that obscenity was outside the protection of the First Amendment. Although interference with the private sexual actions of adults seemed suspect in light of the Court's support of a right of privacy found in Griswold (1965) and Roe (1973), Justice Burger's opinion in this case began a process of restricting the right of privacy to matters involving marriage, family and procreation.

In his dissent in Paris, Justice William Brennan, author of the majority opinion in Roth, felt that the continued inability to come up with a workable definition of obscenity made the entire issue too vague to square with the First Amendment.

Nonetheless, the decisions in Miller and Paris affirmed that the only obstacle to protecting the morals of society against obscenity is a sensible and uniform definition of same that will withstand the scrutiny of a Court predisposed to protect those morals. In its wait for such a standard, and such a Court, society continues its journey toward a moral abyss.


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Other decisions pertaining to Obscenity:

Cohen v. California    [403 U.S. 15 (1971)]  Burger Court
Mapp v. Ohio    [367 U.S. 643 (1961)]  Warren Court
Near v. Minnesota    [283 U.S. 697 (1931)]  Hughes Court
Roth v. United States    [354 U.S. 476 (1957)]  Warren Court

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