Miller v. California 8212 73 18 8212 19, 1972

• Court: United States Supreme Court
• Citation: 93 S.Ct. 2607,413 U.S. 15,37 L.Ed.2d 419
• Docket Number: No. 70,70
• Parties: Marvin MILLER, Appellant, v. State of CALIFORNIA. —73. Argued Jan. 18—19, 1972. Re
• Decision Date: 21 June 1973

413 U.S. 15 93 S.Ct. 2607 37 L.Ed.2d 419 Marvin MILLER, Appellant,

v.

State of CALIFORNIA.

No. 70—73. Argued Jan. 18—19, 1972. Reargued Nov. 7, 1972. Decided June 21, 1973. Rehearing Denied Oct. 9, 1973.

See 414 U.S. 881, 94 S.Ct. 26.

Syllabus by the Court

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, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23—24.

2. 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, Roth supra, at 489, 77 S.Ct. at 1311, (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. P. 24—25.

3. The test of 'utterly without redeeming social value' articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24—25.

4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a 'national standard.' Pp. 30—34.

Vacated and remanded.

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Burton Marks, Beverly Hills, Cal., for appellant.

Michael R. Capizzi, Santa Ana, Cal., for appellee.

Mr. 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 re-examination of standards enunciated in earlier cases involving what Mr. Justice Harlan called 'the intractable obscenity problem.' Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 1313, 20 L.Ed.2d 225 (1968) (concurring and dissenting).

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 Penal Code § 311.2(a), a misdemeanor, by knowingly distributing obscene matter,¹

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and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was spe-

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cifically 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 material²

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when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U.S. 557, 567, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969); Ginsberg v. New York, 390 U.S. 629, 637—643, 88 S.Ct. 1274, 1279—1282, 20 L.Ed.2d 195 (1968); Interstate Circuit, Inc. v. Dallas, supra, 390 U.S., at 690, 88 S.Ct., at 1306; Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct., 1414, 1415, 18 L.Ed.2d 515 (1967); Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964). See Rabe v. Washington, 405 U.S. 313, 317, 92 S.Ct. 993, 995, 31 L.Ed.2d 258 (1972) (Burger, C.J., concurring); United States v. Reidel, 402 U.S. 351, 360—362, 91 S.Ct. 1410, 1414—1415, 28 L.Ed.2d 813 (1971) (opinion of Marshall, J.); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952); Breard v. Alexandria, 341 U.S. 622, 644—645, 71 S.Ct. 920, 933—934, 95 L.Ed. 1233 (1951); Kovacs v. Cooper, 336 U.S. 77, 88 89, 69 S.Ct. 448, 454, 93 L.Ed. 513 (1949); Prince v. Massachusetts, 321 U.S. 158, 169—170, 64 S.Ct. 438, 443—444, 88 L.Ed. 645 (1944). Cf. Butler v. Michigan, 352 U.S. 380, 382—383, 77 S.Ct. 524, 525, 1 L.Ed.2d 412 (1957); Public Utilities Comm'n v. Pollak, 343 U.S. 451, 464—465, 72 S.Ct. 813, 821—822, 96 L.Ed. 1068 (1952). It is in this context that we are called

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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 Mr. 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, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (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. Five Justices joined in the opinion stating:

'All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the (First Amendment) guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 768—769, 86 L.Ed. 1031:

". . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene . . .. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social

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value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .' (Emphasis by Court in Roth opinion.)

'We hold that obscenity is not within the area of constitutionally protected speech or press.' 354 U.S., at 484 485, 77 S.Ct., 1309 (footnotes omitted).

Nine years later, in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (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. The plurality held that under the Roth definition

'as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because if affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.' Id., at 418, 86 S.Ct., at 977.

The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by Mr. Justice White's dissent, id., at 460—462, 86 S.Ct., at 999, was further underscored when the Memoirs plurality went on to state:

'The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is found to be utterly without redeeming social value.' Id., at 419, 86 S.Ct., at 978 (emphasis in original).

While Roth presumed 'obscenity' to be 'utterly without redeeming social importance,' Memoirs required

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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. Such considerations caused Mr. Justice Harlan to wonder if the 'utterly without redeeming social value'...