Miller v. California in 1973: Summary & Decision

Instructor: Mark Pearcy
What is 'obscenity?' How do we know? The Supreme Court in 1973 tried to create a definition of a surprisingly ambiguous legal term, and ended up creating a new rule that changed the nature of the First Amendment.

Introduction: What is 'Obscenity?'

The difficulty with some words we use is that they're just really hard to define. If I asked you to define blue, you might say, 'it's a color'; but if I asked you how it was different from, say, red, you'd probably be stumped and say something like, 'well, it has more…blueness?'

This is true of many of the words we use to structure our lives. We use the word crime to refer to acts which are disruptive to society and community--but you can probably already see the problem with that term. When is something criminal? How many of us have to agree for it to be effective?

The term obscenity is one we're probably all familiar with, but it presents the same difficulty--what is it? How do we define it? What do we do when we identify it? In 1963, a Supreme Court justice, Potter Stewart, had the same difficulty with the term obscenity, and came up with an unusual, though pretty accurate definition--'we know it when we see it.' This is certainly true; we all know something is obscene when we identify it as such. But how can a society define it, if the term is, by definition, determined by each of us individually?

Miller v. California

The Supreme Court case of Miller v. California, 1973, was an attempt by the Court to define the scope and nature of obscenity, and to create a principle that can apply to future cases. The result was known as the three-prong standard, generally called the Miller test.


Marvin Miller operated a mail-order business in California in 1971. His company primarily distributed pornographic books and films, and that year he sent out a brochure advertising his products which contained graphic depictions of sex acts. By mistake, five of the brochures were mailed to a restaurant, whose owner, upon opening the envelope, called the police.

Miller was charged with violating a California law against 'obscene matter.' Under that law, the legal definition of 'obscene' was based on two previous Supreme Court decisions which had narrowed the meaning to materials that were 'utterly without redeeming social value.' Miller was convicted, and his appeal quickly moved to the Supreme Court.

What is Obscenity?

The Chief Justice of the Supreme Court at that time was Warren Burger, and during his term the Court had struggled several times with the legal definition of obscenity. The problem was that if the definition was too broad, indisputable works of art (by figures like D.H. Lawrence and James Joyce) could hypothetically be banned, while if the definition was too narrow, it could hardly be applied at all. But more importantly, the question was whether or not the sale and purchase of obscene material was a protected form of expression, under the First Amendment. Of course, the Court couldn't figure that out until it figured out what obscenity was.

The Supreme Court in 1973, under Chief Justice Warren Burger

So the Court devised a three-part test, or three-prong standard. It was:

• 'Whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest;

• Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

• Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'

This was a rejection of the previous standard, the 'utterly without redeeming social value.' More to the point, the Court ruled that obscene material (which could now be branded as such much more freely, given the new Miller test) did not have First Amendment protection, and thus could be regulated or even prohibited by the state.

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