and Summary

  • Last updated on November 11, 2022

Reaffirming that obscenity was not protected by the First Amendment, the Supreme Court formulated a three-pronged test as a guide for determining what kinds of sexually explicit materials might be proscribed by the government.

Marvin Miller was prosecuted and convicted of a misdemeanor under California’s antiobscenity statute after he conducted a mailing campaign to advertise the sale of sexually explicit materials. When the Supreme Court accepted Miller’s petition for review, it also agreed to review a companion case, Paris Adult Theatre v. Slaton. After the landmark case of Roth v. United States[case]Roth v. United States[Roth v. United States] (1957), the Court had consistently ruled that the First and Fourteenth Amendments did not protect hard-core obscenity but did protect nonobscene pornography and “indecency.” Under Chief Justice Earl Warren, the Court had made it very difficult to prosecute obscenity cases. In Jacobellis v. Ohio[case]Jacobellis v. Ohio[Jacobellis v. Ohio] (1964) and Memoirs v. Massachusetts[case]Memoirs v. Massachusetts[Memoirs v. Massachusetts] (1966), the Court held that erotic materials could not be proscribed unless the average person applying standards of “the society at large” found the content to be “utterly without redeeming social importance.”Obscenity and pornography;Miller v. California[Miller v. California]Obscenity and pornography;Paris Adult Theatre v. Slaton[Paris Adult Theatre v. Slaton]

Although Chief Justice Warren E. Burger,Burger, Warren E.;Miller v. California[Miller v. California] Burger, Warren E.;Paris Adult Theatre v. Slaton[Paris Adult Theatre v. Slaton] writing for a 5-4 majority, began by recognizing the “inherent dangers” of restricting any form of expression, he then formulated a three-part test for obscenity that was considerably more restrictive than the Jacobellis/Memoirs test. Obscene materials might be proscribed if three elements were present: first, the average person, applying “contemporary community standards,” would consider the work, taken as a whole, to appeal to the “prurient interest in sex”; second, the material must involve “patently offensive” conduct that is specifically defined by applicable state law; and third, the work, taken as a whole, must be lacking in “serious literary, artistic, political, or scientific value.”

The most controversial prong of the Miller test has been its community standards approach. When a Georgia community attempted to bar the film Carnal Knowledge, the Court held, in Jenkins v. Georgia[case]Jenkins v. Georgia[Jenkins v. Georgia] (1974), that only “patently offensive hard core sexual conduct” could be proscribed, regardless of the views of the local community. In addition, in Pope v. Illinois[case]Pope v. Illinois[Pope v. Illinois] (1987), the Court held that the third prong of the test, the serious literary, artistic, political, or scientific value element, must be measured by national standards and the perceptions of “a reasonable person” rather than “an average person.” Although the Court has made these two modifications, the basic approach of the Miller test continues to be good law.

In Miller’s companion case, Paris Adult Theatre v. Slaton, the Court upheld the conviction of an Atlanta theater owner for showing obscene films. Burger’s majority opinion included three general ideas. First, the constitutional right of privacy did not encompass any right to watch obscene movies in places of public accommodations. Second, the state had the authority to promote “a decent society” even if this meant restricting the free choices of consenting adults. Third, the legislature of Georgia could reasonably determine, without conclusive evidence, that “a connection does or might exist” between antisocial behavior and obscene material. In contrast, Justice William J. Brennan, Jr., joined by two other dissenters, argued that the concept of obscenity was so vague that, except in situations involving juveniles or nonconsenting adults, efforts to suppress it violated constitutional rights.


First Amendment balancing

Judicial scrutiny

Memoirs v. Massachusetts

Obscenity and pornography

Roth v. United States and Alberts v. California

Speech and press, freedom of

Categories: History