Miller v. California

Justice Stewart once wrote a concurring opinion in an obscenity case in which he explained the difficulty of defining obscenity. He said:

“I have reached the conclusion . . . [that obscenity is] limited to hard-core pornography. 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.” Jacobellis v. Ohio 378 U.S. at 197.

If it makes me blush, you can ban it! That’s the best Justice Stewart could come up with. Is this test just a wee bit vague?

Did the Court do any better in Miller v. California? (p. 105)

Miller comes up with a three-part test for non-protected obscenity:

1) whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest.

Whoa! Let’s stop here?

What does “prurient interest” mean?

The Court has defined prurience as material appealing to a shameful or lascivious or lustful interest in sex. It does not include a normal interest in sex.

What does that mean?

In one case, the Court held that an erotic magazine was “prurient” because the “leer of the sensualist” had permeated the manner in which the publication had been distributed.

The magazine had been mailed from the towns of Intercourse and Blue Ball, Pennsylvania and the publisher boasted of the explicit nature of the publication. The publisher’s clear intent was to appeal to the prurient interest of potential readers.

O.K. Now which community are we looking at – the local community (say in Idaho, Utah or Alabama) or a national standard?

Take a look at the beginning of Roman Numeral III on page 106 – the Court says that “First Amendment limitations . . . do not vary from community to community, but this does not mean that there are, or should or can be, fixed uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive.’”

Same test, but different standards (a movie that is not obscene in New York may be obscene in Mississippi). Really a question addressed to the common sense of the jury. An average jury pool in New York may have a different sense than an average jury in Mississippi.

O.K. Part two of the Miller test.

Material is obscene if it “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” (p. 105)

What does that mean? Again, this standard is supposed to be based upon contemporary community standards as understood by average jurors. (p.106)

Page 105: “[N]o one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct...”

So what happens in Jenkins v. Georgia (p.106) when a Georgia jury applies local community standards and concludes that the movie "Carnal Knowledge" is prurient and patently offensive?

The Supreme Court buys some popcorn and malted milk balls, goes to the movies, and says “as a matter of constitutional law” Carnal Knowledge is not “patently offensive.” (p.108)

Why not?

It’s not “hard core”? P. 107

What is “hard core”?

Justice Stewart knew it when he saw it and so, apparently, does the Court.

Five thumbs up for Carnal Knowledge – it’s a “must see”! The Court takes upon itself the task of distinguishing community standards of prurience and offensiveness from mere “community prejudice.” [Nowak at 1137.] Or is this simply an elitist standard of what is offensive? If it’s a movie someone I know from the yacht club might go to, then it’s not obscene.

O.K. Third part of the test.

A work is not obscene, even if it is prurient and patently offensive, unless in addition it lacks “serious literary, artistic, political, or scientific value.” (p. 105) “Taken as a whole.”

This was the stumbling block a few years ago in the Mapplethorpe trial – pictures of one man urinating into the mouth of another man, one man inserting his fist into the anus of another man might very well be considered prurient and patently offensive in Cincinnati. Pete Rose was offering 2-1 odds on that issue.

The third part of the test is not judged by local community standards. Rather, it supposedly is to be decided on an objective basis (i.e. whether a reasonable person would find serious literary, artistic, political, or scientific value in the material, taken as a whole).

The Mapplethorpe photos were being exhibited in a major art museum and numerous art professionals testified as to the artistic value of the photographs.

What about Playboy and Penthouse magazine? Apply Miller to these publications?

Do they appeal to the prurient interest (judged by Nebraska community standards)?

Do they depict patently offensive sexual conduct or lewd exhibition of the genitals?

Do they have “serious literary, artistic, political, or scientific value?”

[Remember the famous Playboy interview with Jimmy Carter discussing his personal struggle with the Sermon on the Mount]

The Miller test is very protective of pornography. Is it overprotective, underprotective, or just about right?

What about an extremely violent movie? The test only covers patently offensive displays of sexual conduct.

Suppose a law professor screened an otherwise obscene film in class in order to conduct a discussion of First Amendment law. Could he be charged with a violation of the state’s obscenity law? Would the screening have serious “scientific” value (i.e. educational value)?

[See Prof. Smolla at 325:]

“The reality is that “obscenity” is currently limited to genuinely “hard core” pornographic expression and that relatively little falls within the category as it is presently defined.”


What about child pornography? New York v. Ferber (p. 108)