Miller v. California

• Author: Jeffrey Lehman, Shirelle Phelps

Page 72

Arguably the most important in a series of late-twentieth-century Supreme Court cases laying down the definition of OBSCENITY and setting down the boundaries as to how and when communities could regulate obscene materials. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) remained the Supreme Court's final word on most types of PORNOGRAPHY into the twenty-first century. While the test set down for defining obscenity in Miller v. California has been modified and expanded by subsequent court cases since the original decision was handed down in 1973, it has never been overturned and forms the starting point for nearly all U.S. court cases dealing with obscenity prosecutions.

Pre-Miller Obscenity Cases

Miller v. California and its companion case, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446, (1973), marked the culmination of a period when the Supreme Court laid down several tests for obscenity, the most famous and succinct of which was Justice Potter Stewart's comment in his concurrence in Jacobellis v. State of Ohio 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964), "I know it when I see it." For years, U.S. courts had generally followed the definition of obscenity contained in the 1868 British case, Regina v. 3 L.R.-Q.B. 360 (1868). That case said the definition of obscenity was "whether the tendency of the matter charged is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall." Courts differed as to whether just one passage of the material was sufficient to prove this tendency or whether the work had to be examined as a whole.

But in 1957, the Supreme Court explicitly rejected Regina v. Hicklin in ROTH V. UNITED STATES 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498,(1957). In that case, a divided Supreme Court first ruled for the first time that obscenity was beyond constitutional protection. The Court went on to rule that the new standard for judging obscenity was whether to an average person, applying contemporary community standards, the dominant theme of material taken as a whole appealed to prurient interest. In imposing an average person standard, the Court departed from Hicklin's more broad definition to allow a finding of obscenity wherever there were "minds open to ? immoral...