Marks v. United States

Background

The case involves several people who were charged with transporting allegedly obscene films across state lines under a federal law. Their conduct occurred before June 21, 1973, but their trial began after this Court announced the Miller decision, which set a new test for what materials can be punished as obscene. The defendants asked for jury instructions based on the earlier Memoirs test, which was more protective of speech.

Reasoning

The Court asked whether it was fair to apply Miller’s tougher third prong — asking whether a work “lacks serious literary, artistic, political, or scientific value” — to actions that happened before Miller. Drawing on prior decisions about fair warning, the Court concluded that suddenly expanding what counts as criminal speech is like creating a new law after the fact. The majority found that Memoirs, not a later plurality, set the controlling standard before Miller; because Miller relaxed Memoirs’ protection, applying Miller retroactively would unfairly expose people to new criminal liability. The Court therefore required that juries in prosecutions for pre‑Miller conduct be instructed under Memoirs’ “utterly without redeeming social value” standard, while still allowing any Miller rules that would help defendants.

Real world impact

Practically, the ruling protects people who distributed materials before Miller by limiting the test juries must use. Some convictions based on post‑trial instructions may be reversed or retried with the narrower Memoirs instruction. The decision resolves a split among appeals courts about retroactivity but does not decide whether the statute is unconstitutional in all cases.

Dissents or concurrances

Two Justices agreed with the retroactivity holding but argued the case should simply be reversed because they view the statute as overbroad or too vague to prosecute at all.