Marks v. United States

Background

The defendants were charged with transporting and conspiring to ship allegedly obscene films and materials across state lines under a federal criminal law. Their conduct occurred before the Court announced a new obscenity test in mid‑1973, but their trial began months later and the judge instructed the jury under the new test. The jury convicted, and the Court of Appeals affirmed.

Reasoning

The Court examined whether giving the newer test retroactive effect violated basic fairness and relied on an earlier decision that an unexpected judicial expansion of a criminal law is like an unlawful retroactive law. The majority concluded the newer test relaxed an important element of obscenity law by shifting away from finding material "utterly without redeeming social value," and that change could expose people to criminal liability they could not have anticipated. Because of that unforeseen change, the Court held defendants who committed acts before the new test must be judged under the older, more protective standard at trial. The opinion also said any parts of the new test that benefit defendants should still apply.

Real world impact

The decision reverses the convictions and sends the case back so juries will be instructed under the older "utterly without redeeming social value" standard for pre‑change conduct. That limits prosecutions based on materials distributed before the test was announced and requires lower courts to follow this fairness rule when similar facts arise. The Government did not defend the convictions, and the Court resolved conflicting circuit rulings about retroactivity.

Dissents or concurrances

Two Justices writing separately said they would have gone further: one would reverse outright as the statute is overbroad, and another stressed vagueness and uneven enforcement in obscenity prosecutions.