Miller V. California - Effects of The Decision

Effects of The Decision

Miller provided states greater freedom in prosecuting alleged purveyors of "obscene" material because, for the first time since Roth, a majority of the Court agreed on a definition of "obscenity." Hundreds of "obscenity" prosecutions went forward after Miller, and the Supreme Court began denying review of these state actions after years of reviewing many "obscenity" convictions (over 60 appeared on the Court's docket for the 1971-72 term, pre-Miller). A companion case to Miller, Paris Adult Theatre I v. Slaton, provided states with greater leeway to shut down adult movie houses. Controversy arose over Miller's "community standards" analysis, with critics charging that Miller encouraged forum shopping to prosecute national producers of what some believe to be "obscenity" in locales where community standards differ substantially from the rest of the nation. For example, under the "community standards" prong of the Miller test, what might be considered "obscene" in Massachusetts might not be considered "obscene" in Utah, or the opposite might be true; in any event, prosecutors tend to bring charges in locales where they believe that they will prevail.

The "community standards" portion of the decision is of particular relevance with the rise of the Internet, as materials believed by some to be "obscene" can be accessed from anywhere in the nation, including places where there is a greater concern about "obscenity" than other areas of the nation.

In the years since Miller, many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and public nudity laws. These types of actions have been upheld by the Supreme Court. Additionally, in 1982's New York v. Ferber, the Court declared child pornography is unprotected by the First Amendment, upholding the state of New York's ban on that material. In the recent Ashcroft v. Free Speech Coalition case, however, the Court held that sexually explicit material that appears to depict minors might be constitutionally protected.

In American Booksellers Foundation for Free Expression v. Strickland, plaintiffs American Booksellers Foundation for Free Expression, joined by various publishers, retailers, and web site operators, sued Ohio’s Attorney General and Ohio county prosecutors in United States District Court for the Southern District of Ohio. Plaintiffs alleged that Ohio Revised Code §2907.01(E) and (J), which prohibited the dissemination or display of “materials harmful to juveniles,” unconstitutionally violated both the First Amendment and the Commerce Clause of the Constitution. Plaintiffs specifically challenged the statute's definition of "harmful to juveniles," as well as the provisions governing internet dissemination of those materials. The court held the statute unconstitutional because the statute's definition of "material harmful to minors" did not comply with Miller. Defendants appealed the decision to the Sixth Circuit.