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Miller v. California


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413 U.S. 15 (1973), argued 18–19 Jan. and 7 Nov. 1972; Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973), argued 19 Oct. 1972, both decided 21 June 1973 by vote of 5 to 4; Burger for the Court, Douglas, Brennan, Stewart, and Marshall in dissent. Miller v. California articulates the test for obscenity that resolved the dilemma of First Amendment protection for allegedly obscene materials first identified in Roth v. United States (1957). Chief Justice Warren Burger's majority opinion stated that material could be obscene only if “(a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; [and] (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (p. 25). Burger went on to say that under this test “no one will be subject to prosecution for the sale or exposure of obscene materials unless those materials depict or describe patently offensive ‘hard core’ sexual conduct” (p.27).

(a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; [and] (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (p. 25)

One of the most significant contributions of Miller was its identification of the geographic criterion of the contemporary community standards against which obscenity was to be measured. Burger held that both prurient interest and patent offensiveness could constitutionally be measured by local rather than national standards. Many persons assumed at the time that the definition of obscenity and thus the coverage of obscenity statutes could vary significantly from place to place. Subsequent cases revealed that this reading of Miller was unjustified.

The Court first indicated that the scope of local variation in the identification of prurient interest or patent offensiveness was much narrower than supposed. In Jenkins v. Georgia (1974) Justice William H. Rehnquist stated that the film “Carnal Knowledge” could not, in light of the First Amendment, be found to appeal to the prurient interest, or be found patently offensive, regardless of the views of the Georgia courts and Georgia's community standards. This established a quite narrow range for permissible variance in local community standards. Moreover, in Smith v. United States (1977) and in Pope v. Illinois (1987) the Court required that the third prong of the Miller test, lack of serious literary, artistic, political, or scientific value, was to be measured against national standards. A work considered nationally to have literary, artistic, political, or scientific value could not constitutionally be found to be obscene regardless of whether it appealed to prurient interest or was patently offensive, and regardless of the standards of any community smaller than the nation as a whole.

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Subjects: Law.


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