Miller V. California - History

History

The appellant, Marvin Miller, operator of one of the West Coast's largest mail-order businesses dealing in pornography, had conducted a mass mailing campaign to advertise the sale of illustrated books, labeled "adult" material. Miller was convicted by the Superior Court of Orange County, California (the state trial court) of having violated California Penal Code 311.2 by mailing unsolicited sexually explicit material in violation of a California statute that fulfilled the criteria of the obscenity test formulated in the previous similar case of Memoirs v. Massachusetts. The jury was instructed to analyze California’s community standards of obscenity. The appellant’s case was affirmed on appeal. The content that was mailed was confirmed to be sexually explicit. It was found that the work, as a whole, did not have any serious literary, artistic, political, or scientific value and therefore did not obtain the protection of the first amendment (freedom of speech). This was considered a misdemeanor, by knowingly distributing obscene material. The conviction was affirmed by the California Court of Appeals. As stated in the preface to Chief Justice Warren Burger's majority opinion, the

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 and complained to the police.

According to the Court's decision, the materials in question primarily... 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. Since the Court's decision in Roth v. United States, 354 U.S. 476 (1957), the Court had struggled to define what constituted constitutionally unprotected obscene material. Under the Comstock laws that prevailed before Roth, articulated most famously in the 1868 English case Regina v. Hicklin, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. Thus, works by Balzac, Flaubert, James Joyce, and D. H. Lawrence were banned based on isolated passages and the effect they might have on children. Roth repudiated the Hicklin test and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." Only material now meeting this test could be banned as "obscene."

Hugo Black and William O. Douglas, who were First Amendment literalists, chafed at the Roth test and argued vigorously that the First Amendment protected obscene material. In subsequent cases the Court encountered tremendous difficulty in applying the Roth test, which did not define what it meant by "community standards." For example, in the 1964 case Jacobellis v. Ohio, involving whether Ohio could ban the showing of a French film called Les Amants (French for The Lovers), the Court ruled that the film was protected by the First Amendment, but could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions. In his concurring opinion in Jacobellis, Justice Potter Stewart, holding that Roth protected all obscenity except "hard-core pornography," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of the Court further redefined the Roth test by holding unprotected only that which is "patently offensive" and "utterly without redeeming social value," but no opinion in that case could command a majority of the Court either, and the state of the law in the obscenity field remained confused.

Pornography and sexually oriented publications proliferated as a result of the Court's holdings. The Sexual Revolution of the 1960s flowered, and pressure increasingly came to the Court to allow leeway for state and local governments to crack down on obscenity. During his ill-fated bid to become Chief Justice, Justice Abe Fortas was attacked vigorously in Congress by conservatives such as Strom Thurmond for siding with the Warren Court majority in liberalizing protection for pornography. In his 1968 presidential campaign, Richard Nixon campaigned against the Warren Court, pledging to appoint strict constructionists to the Supreme Court.

Chief Justice Warren Burger came to the Court in 1969 believing that the Court's obscenity jurisprudence was misguided and governments should be given more leeway to ban obscene materials. In consideration of Miller in May and June 1972, Burger pushed successfully for a looser definition of "obscenity" which would allow local prosecutions, while Justice William J. Brennan, Jr., who by now also believed the Roth and Memoirs tests should be abandoned, led the charge for protecting all "obscenity" unless distributed to minors or exposed offensively to unconsenting adults. Decision of the case was contentious, and Miller was put over for reargument for October term 1972, and did not come down until June 1973, with Burger prevailing by a bare 5-4 vote.