11 Unprotected Categories: Obscenity

The Supreme Court’s Current Obscenity Test

Had liberals maintained a majority on the Court after 1969, this approach might eventually have been adopted. However, the election of Richard Nixon led to four court appointments, dramatically shifting the balance of power on the Court in a more conservative direction. While Nixon’s appointees agreed that Roth needed to be replaced, they did not agree with the liberal wing’s approach. The issue finally came to a head in Miller v. California, a 1973 case whose facts echoed those in Roth. In this decision, the conservative majority chose a different path, reworking the Roth test in an effort to make it easier for states to prosecute obscenity while still trying to protect materials with “serious” social value.

Importantly, Miller and its test for determining obscenity are still good law today, meaning Miller is the current foundational Supreme Court case in the issue area.

Miller v. California

413 U.S. 15 (1973)

Facts: Miller (the so-called California “King of Smut”) sent out mailers advertising his adult materials. A restaurant in Newport Beach called the police after receiving the materials, after which Miller was charged and convicted for violating California’s obscenity statute. Miller sued after exhausting his state appeals, arguing the lower court had used the wrong standard in convicted him (i.e. not applying the “no redeeming value” prong from Memoirs v. Massachusetts).

Question: Were Miller’s materials obscene, and thus unprotected by the First Amendment?

Vote: Yes, 5-4

For the Court: Justice Burger

Dissenting opinion: Justice Douglas

Dissenting opinion: Justice Brennan

CHIEF JUSTICE BURGER delivered the opinion of the Court.

This is one of a group of “obscenity-pornography” cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called “the intractable obscenity problem.”

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called “adult” material. After a jury trial, he was convicted of violating California [law] by knowingly distributing obscene matter, and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant’s conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police.

The brochures advertise four books entitled “Intercourse,” “Man-Woman,” “Sex Orgies Illustrated,” and “An Illustrated History of Pornography,” and a film entitled “Marital Intercourse.” While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.

I

This case involves the application of a State’s criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. It is in this context that we are called on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment.

The dissent of JUSTICE BRENNAN reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court’s obscenity decisions. In Roth v. United States (1957), the Court sustained a conviction under a federal statute punishing the mailing of “obscene, lewd, lascivious or filthy…” materials. The key to that holding was the Court’s rejection of the claim that obscene materials were protected by the First Amendment…

Nine years later, in Memoirs v. Massachusetts (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity…

While Roth presumed “obscenity” to be “utterly without redeeming social importance,” Memoirs required that to prove obscenity it must be affirmatively established that the material is “utterly without redeeming social value.” Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was “utterly without redeeming social value” — a burden virtually impossible to discharge under our criminal standards of proof…

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States’ police power. See, e.g., Redrup v. New York…

This is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.

The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test. But now the Memoirs test has been abandoned as unworkable by its author, and no Member of the Court today supports the Memoirs formulation…

II

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment… We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

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. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts.

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members…

JUSTICE BRENNAN … now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression. Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing “adult” one month past the state law age of majority and a willing “juvenile” one month younger.

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. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.

If the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then “hard core” pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends…

MR. JUSTICE BRENNAN also emphasizes “institutional stress” in justification of his change of view. Noting that “[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court,” he quite rightly remarks that the examination of contested materials “is hardly a source of edification to the members of this Court.” He also notes, and we agree, that “uncertainty of the standards creates a continuing source of tension between state and federal courts…”

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate “hard core” pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, (1967), and attempt to provide positive guidance to federal and state courts alike.

This may not be an easy road, free from difficulty. But no amount of “fatigue” should lead us to adopt a convenient “institutional” rationale — an absolutist, “anything goes” view of the First Amendment — because it will lighten our burdens…

III

Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility…

We conclude that neither the State’s alleged failure to offer evidence of “national standards,” nor the trial court’s charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a matter of fact…

It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.

People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity… the primary concern with requiring a jury to apply the standard of “the average person, applying contemporary community standards” is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person — or indeed a totally insensitive one…

IV

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom…The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent…

But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter.

There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an “extraordinarily vigorous period” not just in economics and politics, but in belles lettres and in “the outlying fields of social and political philosophies.” We do not see the harsh hand of censorship of ideas — good or bad, sound or unsound — and “repression” of political liberty lurking in every state regulation of commercial exploitation of human interest in sex.

JUSTICE BRENNAN finds “it is hard to see how state-ordered regimentation of our minds can ever be forestalled.” These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN finds constitutionally permissible, has all the elements of “censorship” for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. One can concede that the “sexual revolution” of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive “hard core” materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphine…

JUSTICE DOUGLAS, dissenting.

I

Today we leave open the way for California to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today is decision were never the part of any law.

The Court has worked hard to define obscenity and concededly has failed…

But even those members of this Court who had created the new and changing standards of “obscenity” could not agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York. Some condemn it if its “dominant tendency might be to deprave or corrupt a reader.” Others look not to the content of the book, but to whether it is advertised “to appeal to the erotic interests of customers.” Some condemn only “hard-core pornography,” but even then a true definition is lacking. It has indeed been said of that definition, “I could never succeed in [defining it] intelligibly,” but “I know it when I see it.” …

Today we would add a new three-pronged test…

Those are the standards we ourselves have written into the Constitution. Yet how under these vague tests can we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?

Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since “obscenity” is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from “the press” which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated “obscene” publications differently from other types of papers, magazines, and books… The Court is at large because we deal with tastes and standards of literature. What shocks me may be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people…

My contention is that, until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned…

In any case — certainly when constitutional rights are concerned — we should not allow men to go to prison or be fined when they had no “fair warning” that what they did was criminal conduct.

II

If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does, and my views on the issue have been stated over and over again. But at least a criminal prosecution brought at that juncture would not violate the time-honored “void for vagueness” test…

III

While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive… There is no “captive audience” problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban.

The idea that the First Amendment permits government to ban publications that are “offensive” to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed “to invite dispute,” to induce “a condition of unrest,” to “create dissatisfaction with conditions as they are,” and even to stir “people to anger.” The idea that the First Amendment permits punishment for ideas that are “offensive” to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society…

If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it.

We deal with highly emotional, not rational, questions. To many, the Song of Solomon is obscene. 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. Perhaps the people will decide that the path towards a mature, integrated society requires that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections.

JUSTICE BRENNAN, with whom JUSTICE STEWART and JUSTICE MARSHALL join, dissenting.

… In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that … the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face…

Miller’s three-prong test remains good law after almost fifty years and is worth repeating in full. Under Miller, obscenity is defined as when:

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

Note that all three prongs must be met for the state to prosecute the distribution or sale of work as obscene.

Some other factors in the application of Miller to note include:

1. Obscene work must be “hard-core,” beyond simple nudity.
2. A “Prurient” interest can be defined as an excessive or unhealthy focus on sexual matters or themes.
3. In later cases, such as Pope v. Illinois (1987), the Court made it clear that the serious value prong (#3) is a national “reasonable person” standard, not a local one. So, while juries can decide whether a work appeals to unhealthy sexual interests according to local norms, they cannot decide, for example, that Ulysses lacks serious literary value.
4. Burger’s opinion provides some examples of acceptable legislative precision in writing state obscenity bans. For example, he cites “patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated” as acceptable statutory language (after Miller, the Court has ruled that juries can deviate somewhat from state standards if it meets the norms of their specific community).
5. Stanley’s carve-out for simple home possession remains in effect.
6. Child pornography will later be held as a separate unprotected category with different rules.

Obscenity prosecutions today are rare but not unheard of. The general barriers to prosecuting obscenity are not constitutional law but other factors, such as limited prosecutorial resources, the ubiquity of pornography following the growth of the internet, the reluctance of some jurors to rule obscene material that they themselves might view, and the skill with which defense attorneys have convinced jurors that obscenity bans are unfairly applied to their clients (given how infrequently such prosecutions are launched).