Miller v. California
The Court upheld California's power to prosecute the mass-mailing of sexually explicit brochures, and rewrote the constitutional test for obscenity, replacing an older standard that made convictions almost impossible to sustain.
Under the new three-part test, states may ban material that appeals to prurient interest, describes sexual conduct in a patently offensive way as defined by state law, and lacks serious literary, artistic, political, or scientific value — judged by local, not national, community standards.
“The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest”
The Court's new three-part test for deciding whether material is legally obscene.
How it got here: He was convicted at a jury trial; the Appellate Department of the California Superior Court summarily affirmed without opinion, and he appealed to the Supreme Court.
The Case in Depth
What happened
A California man ran a mail-order business advertising illustrated "adult" books and a film through unsolicited mailings. A restaurant manager and his mother, who had not asked for the brochures, opened one, were offended, and complained to police. The brochures contained sexually explicit pictures and drawings. He was convicted under California's obscenity law for knowingly distributing this material.
The question before the Court
Could California convict a man for mailing unsolicited sexual brochures as "obscene," and could it judge obscenity by local rather than national community standards?
Why it matters
States gained a workable, more prosecution-friendly framework for obscenity laws, since juries could rely on local rather than impossible-to-prove national standards. Booksellers, publishers, and mail-order businesses selling sexually explicit material faced clearer but tougher legal exposure, and communities could set stricter or looser limits on adult material depending on local values.
What changes now
The case returns to the California appellate court for further proceedings applying the newly announced three-part obscenity test rather than the abandoned Memoirs standard. This is a final merits ruling establishing what became known as the "Miller test," which state and federal courts have since had to apply in obscenity prosecutions. The decision does not resolve how the test applies to any material beyond the brochures at issue.
What this does not decide
The Court did not write a model obscenity statute or decide how the new test applies to any material other than the brochures in this case. It expressly left it to state legislatures to draft specific statutes and to lower courts to apply the guidelines case by case, and it did not decide whether a national standard might ever be appropriate for other purposes.
Concurrences and dissents
Dissent — Justice Douglas
Justice Douglas argued the Court has never been able to define obscenity with any precision, and that punishing someone under a brand-new judicially invented test announced after his conduct amounts to retroactive criminal punishment without fair warning. He argued obscenity is not mentioned in the Constitution, that any censorship regime should come from a constitutional amendment adopted by the people, not from courts, and that no one should go to prison under standards courts themselves cannot clearly explain.
Dissent — Justice Brennan
Justice Brennan, who had authored earlier obscenity tests, argued no formulation by courts, Congress, or states could adequately separate obscene from protected material, especially given the risk of exposure to unconsenting adults and juveniles. He concluded California's statute was unconstitutionally overbroad on its face and would have reversed the conviction and sent the case back rather than adopting a new state-standards test.
How the Court got there
The legal reasoning, step by step
- The Court rejected the plurality test from Memoirs v. Massachusetts, which required prosecutors to prove material was 'utterly without redeeming social value' — a burden the Court called nearly impossible to meet and which had never commanded more than three votes.
- In its place, the Court set out a new three-part test for legally obscene material unprotected by the First Amendment: the average person applying contemporary community standards must find the work as a whole appeals to prurient interest; the work must depict sexual conduct in a patently offensive way as specifically defined by state law; and the work as a whole must lack serious literary, artistic, political, or scientific value.
- The Court required that any state obscenity law specifically define the sexual conduct it targets, whether in the statute itself or through court interpretation, so that sellers get fair notice of what is illegal.
- The Court held that 'community standards' used to judge prurient appeal and patent offensiveness mean local or statewide standards, not a hypothetical single national standard, reasoning that no national consensus on such questions realistically exists and jurors cannot fairly be asked to imagine one.
- Applying this to the case, the Court found no constitutional problem in instructing the jury to use 'contemporary community standards of the State of California' rather than requiring proof of a national standard.
- Because the trial had been conducted under the older Memoirs framework rather than the newly announced test, the Court could not simply affirm the conviction on the existing record and instead required further proceedings under the new standards.
Doctrinal impact
Cases affected by this decision
Abrogates Memoirs v. Massachusetts (383 U.S. 413)
Replaces its 'utterly without redeeming social value' obscenity test with a new three-part standard.
Reaffirms Roth v. United States (354 U.S. 476)
Reaffirms that obscene material is not protected by the First Amendment.