Miller v. California
Decided on June 21, 1973; 413 US 15


The publication of obscene material is not protected by the First Amendment. A work is obscene when "'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest and... [that it] lacks serious literary, artistic, political, or scientific value."

 

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed:
Obscenity, free speech

B. Legal Question Presented:

Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?
II. CASE SUMMARY:

A. Background:

"Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts. The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal."

On appeal, the US Supreme Court vacated and remanded the judgment of the Superior Court of California, County of Orange.  

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
"Application of a statewide, rather than a national standard, undermines independent judicial review, essential to maintaining First Amendment freedoms." "There is no constitutional requirement for a national, rather than statewide, standard of decency. States have the right to prosecute the distribution of obscene materials within their borders."
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Burton Marks reargued the cause and filed a brief for appellant.

Samuel Rosenwein, A. L. Wirin, Fred Okrand, Laurence R. Sperber, Melvin L. Wulf, and Joel M. Gora filed a brief for the American Civil Liberties Union of Southern California et al. as amici curiae urging reversal.

Michael R. Capizzi reargued the cause for appellee. With him on the brief was Cecil Hicks.

IV. THE SUPREME COURT'S DECISION:

"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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.

...In sum, we (a) reaffirm...that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is 'utterly without redeeming social value'; and (c) hold that obscenity is to be determined by applying 'contemporary community standards,' not 'national standards.'

The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion."

The United States Supreme Court vacated and remanded the Superior Court of California, County of Orange judgment.

Justice Vote: 5 Pro vs. 4 Con
  • Douglas, W. Pro (Wrote dissenting opinion)
  • Brennan, W. Pro (Wrote dissenting opinion)
  • Stewart, P. Pro (Joined dissenting opinion)
  • Marshall, T. Pro (Joined dissenting opinion)
  • Burger, W. Con (Wrote majority opinion)
  • White, B. Con (Joined majority opinion)
  • Blackmun, H. Con (Joined majority opinion)
  • Powell, L. Con (Joined majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • V. A WIN OR LOSS FOR THE ACLU?

    The ACLU, as amicus curiae, urged reversal of the judgment of the Superior Court of California, County of Orange; the Supreme Court vacated and remanded in a 5-4 vote, giving the ACLU an apparent loss.