Marks v. United States
The Court ruled that applying the Miller v. California obscenity test retroactively to punish conduct that occurred before Miller was decided violates due process, because it works like an unconstitutional after-the-fact expansion of criminal liability.
The film distributors' convictions were reversed and sent back for a new trial using jury instructions based on the older, narrower Memoirs v. Massachusetts obscenity standard that was the law when they acted.
How it got here: A federal district court convicted the defendants under Miller-based jury instructions; the Sixth Circuit affirmed; the Supreme Court took the case to resolve a circuit split over retroactive application of Miller.
The Case in Depth
What happened
Several individuals and a company were charged with transporting obscene films across state lines and conspiring to do so, based on conduct occurring before mid-1973. While their case awaited trial, the Supreme Court decided Miller v. California, adopting a new, stricter test for obscenity than the one previously used under Memoirs v. Massachusetts. At trial, the jury was instructed under the newer Miller standard rather than the earlier one in effect when the defendants acted.
The question before the Court
Could prosecutors use the Supreme Court's newer, broader definition of obscenity from Miller v. California to convict someone for conduct that happened before Miller was decided?
Why it matters
People and businesses distributing sexually explicit material can only be judged under the obscenity standard that existed when they acted, not a stricter one announced afterward. This protects defendants from being blindsided by court rulings that retroactively broaden what counts as criminal conduct, and it clarifies how lower courts must instruct juries in obscenity prosecutions spanning the 1973 shift in legal standards.
What changes now
The case returns to the trial court for a new trial. The jury there must be instructed to acquit unless it finds the materials 'utterly without redeeming social value,' the Memoirs standard in effect when the defendants acted, though the defendants may still claim any more favorable aspects of Miller under the Court's earlier decision in Hamling v. United States. This is a final merits ruling, not a temporary order.
What this does not decide
The Court did not decide whether the obscenity statute itself is unconstitutional, nor whether the materials in this case were actually obscene under either standard. It also left benefits of Miller that favor defendants fully available, resolving only the narrow question of which standard governs pre-Miller conduct.
Concurrences and dissents
Dissent in part — Justice Brennan
Justice Brennan agreed that applying Miller retroactively violates due process, but would not have remanded for a new trial. He maintained his long-held view that the federal obscenity transport statute is facially overbroad and unconstitutional, so he would simply reverse the convictions outright rather than send the case back.
Dissent in part — Justice Stevens
Justice Stevens agreed with everything in the Court's opinion but objected to remanding for a new trial. He argued the prosecution was improper for three combined reasons: it regulates protected expression, it criminalizes providing material people have a constitutional right to possess, and obscenity standards are so vague that enforcement is inevitably arbitrary and disparate.
How the Court got there
The legal reasoning, step by step
- The Court explained that although the Constitution's Ex Post Facto Clause only restrains legislatures, the underlying idea that people deserve fair warning of what conduct is criminal is protected against unforeseeable judicial expansions of criminal law by the Due Process Clause, following Bouie v. City of Columbia.
- To decide whether Miller expanded criminal liability, the Court had to identify what the obscenity law actually was before Miller. Applying the rule that when no single opinion commands five votes, the position of the Justices who agreed with the outcome on the narrowest grounds controls, the Court concluded that the three-Justice Memoirs plurality opinion — not the older Roth test — was the governing law at the time.
- The Court found that Miller's requirement that material 'lacks serious literary, artistic, political, or scientific value' was easier for prosecutors to satisfy than Memoirs's requirement that material be 'utterly without redeeming social value,' meaning Miller genuinely expanded what could be punished.
- Even though the obscenity statute itself always used broad language, the Court reasoned that Memoirs had narrowed its real-world reach, so applying Miller's looser standard retroactively operated just like the unforeseeable judicial expansion condemned in Bouie.
- Because the statute at issue regulates expression and touches First Amendment interests, the Court held that special care for fair warning was required, so the Due Process Clause barred applying Miller to the defendants' pre-Miller conduct to the extent it would newly criminalize what Memoirs would have allowed.
Doctrinal impact
Cases affected by this decision
Reaffirms Bouie v. City of Columbia (378 U.S. 347)
Relied on as controlling authority that unforeseeable judicial expansion of criminal liability violates due process.
Reaffirms Hamling v. United States (418 U.S. 87)
Reaffirmed that defendants get the benefit of any part of Miller that helps them, even under the older standard.
Reaffirms Memoirs v. Massachusetts (383 U.S. 413)
Confirmed as the actual governing obscenity standard in effect before Miller was decided.