A report on Miller v. California

Landmark decision of the U.S. Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value".

- Miller v. California

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Cover of an undated American edition of Fanny Hill, c. 1910

Obscenity

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Any utterance or act that strongly offends the prevalent morality of the time.

Any utterance or act that strongly offends the prevalent morality of the time.

Cover of an undated American edition of Fanny Hill, c. 1910
The 18th century book Fanny Hill has been subject to obscenity trials at various times (image: plate XI: The bathing party; La baignade)

In the United States, the 1973 ruling of the Supreme Court of the United States in Miller v. California established a three-tiered test to determine what was obscene—and thus not protected, versus what was merely erotic and thus protected by the First Amendment.

George Mason was the principal author of the Virginia Declaration of Rights, adopted by the Fifth Virginia Convention on June 12, 1776.

First Amendment to the United States Constitution

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Establishment of religion, or that prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the freedom of assembly, or the right to petition the government for redress of grievances.

Establishment of religion, or that prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the freedom of assembly, or the right to petition the government for redress of grievances.

George Mason was the principal author of the Virginia Declaration of Rights, adopted by the Fifth Virginia Convention on June 12, 1776.
James Madison, drafter of the Bill of Rights
The Maryland Toleration Act secured religious liberty in the English colony of Maryland. Similar laws were passed in the Rhode Island and Providence Plantations, Connecticut and Pennsylvania. These laws stood in direct contrast with the Puritan theocratic rule in the Plymouth and Massachusetts Bay colonies.
Thomas Jefferson's tombstone. The inscription, as he stipulated, reads "Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the Statute of Virginia for Religious Freedom, and father of the University of Virginia."
A April 22, 1885, cartoon from the Puck magazine depicting an army of clergymen assaulting a fortress defended by newspaper editors including from Puck, while atop a hill in the background a statue labeled "Constitution" that states "Congress shall make no law respecting an establishment of religion" can be seen.
The Founding of Maryland (1634) depicts Father Andrew White, a Jesuit missionary in the left and colonists meeting the people of the Yaocomico branch of the Piscatawy Indian Nation in St. Mary's City, Maryland, the site of Maryland's first colonial settlement.
President Thomas Jefferson wrote in 1802 of "a wall of separation".
The First Church of Christ, Scientist in Boston, Massachusetts
Bear Butte, in South Dakota, is a sacred site for over 30 Plains tribes.
Washington National Cathedral, the Episcopal cathedral in Washington, D.C.
The U.S. guarantees freedom of religion, and some churches in the U.S. take strong stances on political subjects.
Inscription of the First Amendment (December 15, 1791) in front of Independence Hall in Philadelphia
Justice Oliver Wendell Holmes formulated the clear and present danger test for free speech cases.
Justice Louis Brandeis wrote several dissents in the 1920s upholding free speech claims.
U.S. Senator Mitch McConnell, plaintiff in McConnell v. Federal Election Commission
Justice Potter Stewart wrote that while he could not precisely define pornography, he "[knew] it when [he saw] it".
Justice William J. Brennan, Jr. wrote the landmark decision New York Times Co. v. Sullivan, requiring the demonstration of "actual malice" in libel suits against public figures.
The Newseum's depiction of the five freedoms guaranteed by the First Amendment to the US Constitution in Washington, D.C..
The leak of the Pentagon Papers by Daniel Ellsberg (pictured here in 2018) led to New York Times Co. v. United States (1971), a landmark press freedom decision.
Chief Justice Morrison Waite ruled in United States v. Cruikshank (1875) that the right of assembly was a secondary right to the right to petition.
Justice William J. Brennan, Jr. wrote the landmark decision New York Times Co. v. Sullivan, requiring the demonstration of "actual malice" in libel suits against public figures.

The Roth test was expanded when the Court decided Miller v. California (1973).

List of landmark court decisions in the United States

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Landmark court decisions in the United States change the interpretation of existing law.

Landmark court decisions in the United States change the interpretation of existing law.

Miller v. California, To be obscene, a work must fail the Miller test, which determines if it has any "serious literary, artistic, political, or scientific value."

Roth v. United States

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Landmark decision of the Supreme Court of the United States which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.

Landmark decision of the Supreme Court of the United States which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.

In Miller v. California (1973), a five-person majority agreed for the first time since Roth as to a test for determining constitutionally unprotected obscenity, thereby superseding the Roth test.

Jacobellis v. Ohio

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United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of the Louis Malle film The Lovers (Les Amants), which the state had deemed obscene.

United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of the Louis Malle film The Lovers (Les Amants), which the state had deemed obscene.

The Court's obscenity jurisprudence would remain fragmented until 1973's Miller v. California.

I know it when I see it

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Colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters.

Colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters.

This changed in 1973 with Miller v. California.

Supreme Court of the United States

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Highest court in the federal judiciary of the United States.

Highest court in the federal judiciary of the United States.

The Court lacked its own building until 1935; from 1791 to 1801, it met in Philadelphia's City Hall.
The Royal Exchange, New York City, the first meeting place of the Supreme Court
Chief Justice Marshall (1801–1835)
The U.S. Supreme Court Building, current home of the Supreme Court, which opened in 1935.
The Hughes Court in 1937, photographed by Erich Salomon. Members include Chief Justice Charles Evans Hughes (center), Louis Brandeis, Benjamin N. Cardozo, Harlan Stone, Owen Roberts, and the "Four Horsemen" Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, who opposed New Deal policies.
Justices of the Supreme Court with President George W. Bush (center-right) in October 2005. The justices (left to right) are: Ruth Bader Ginsburg, David Souter, Antonin Scalia, John Paul Stevens, John Roberts, Sandra Day O'Connor, Anthony Kennedy, Clarence Thomas, and Stephen Breyer
John Roberts giving testimony before the Senate Judiciary Committee during the 2005 hearings on his nomination to be chief justice
Ruth Bader Ginsburg giving testimony before the Senate Judiciary Committee during the 1993 hearings on her nomination to be an associate justice
The interior of the United States Supreme Court
The first four female justices: O'Connor, Sotomayor, Ginsburg, and Kagan.
The current Roberts Court justices (since October 2020): Front row (left to right): Samuel Alito, Clarence Thomas, Chief Justice John Roberts, Stephen Breyer, and Sonia Sotomayor. Back row (left to right): Brett Kavanaugh, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett.
Percentage of cases decided unanimously and by a one-vote margin from 1971 to 2016
The present U.S. Supreme Court building as viewed from the front
From the 1860s until the 1930s, the court sat in the Old Senate Chamber of the U.S. Capitol.
Seth P. Waxman at oral argument presents his case and answers questions from the justices.
Inscription on the wall of the Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall outlined the concept of judicial review

Miller v. California (1973, obscenity)

Ashcroft v. Free Speech Coalition

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U.S. Supreme Court case which struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech".

U.S. Supreme Court case which struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech".

In Miller v. California,, the Court had held that the First Amendment allowed the government to restrict obscenity.

Warning banner for Operation Protect Our Children

Child pornography

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Pornography that unlawfully exploits children for sexual stimulation.

Pornography that unlawfully exploits children for sexual stimulation.

Warning banner for Operation Protect Our Children
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In response to New York v. Ferber,, a U.S. Supreme Court decision allowing the prohibition of child pornography even if it did not meet the obscenity standard established in Miller v. California, Congress passed the Child Protection Act of 1984, broadening the definition of child pornography and criminalizing nonprofit child pornography trafficking.

Community standards

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Or is not obscene as explicated in the 1957RA Supreme Court decision in the matter of Roth v. United States.

Or is not obscene as explicated in the 1957RA Supreme Court decision in the matter of Roth v. United States.

The concept was further refined in the matter of Miller v. California in which the Court's adoption of the Miller test, also based upon community standards, had the opposite effect.