Case Summary and Outcome

On June 21, 1973, the United States Supreme Court held that obscene material is not protected by the First Amendment and articulated a three-part test (the Miller test) for identifying obscenity. The case arose after the appellant, Marvin Miller, mass mailed unsolicited sexually explicit advertising brochures to a restaurant owner and his mother. Disturbed by the content, they complained to the police, leading to Miller’s conviction—under California’s Penal Code §311.2—for distributing obscene matter. The Court held that a work is obscene, and therefore subject to regulation, if an average person applying contemporary community standards would find that it appeals to prurient interest, if it depicts sexual conduct in a patently offensive manner as specifically defined by State law, and if it lacks serious literary, artistic, political, or scientific value when considered as a whole. Hence, the Court rejected the Memoirs v. Massachusetts “utterly without redeeming social value” standard and held that obscenity is to be determined by applying “contemporary community standards, not a single national standard.”

Facts

Marvin Miller was the operator of an adult material advertising campaign. In an effort to promote his enterprise, Miller conducted a mass mailing campaign advertising the sale of illustrated books, euphemistically referred to as “adult” material. As part of this campaign, he sent five unsolicited advertising brochures for adult books and films—that contained graphic sexual material—to a restaurant in Newport Beach, California. The brochures contained explicit depictions of sexual activity and prominent genitalia. They advertised four books — Intercourse, Man-Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography — and a film entitled Marital Intercourse. While the brochures contained some descriptive printed material, they primarily contained explicit depictions of men and women, often in groups of two or more, engaging in sexual activity, with genitals prominently displayed. The restaurant manager and his mother opened the envelopes, despite not having requested the brochures or given consent to receive such materials. The unsolicited nature of the mailing and the graphic sexual material prompted them to complain to the police, which led to Miller’s arrest and conviction under California’s Penal Code.

The State of California prosecuted Miller under California’s Penal Code §311.2(a), which made it unlawful to knowingly distribute obscene matter. California’s statutory definition of “obscene” then included language similar to standards articulated in prior obscenity case law—defining what is “obscene” by reference to “the average person” applying contemporary standards and to material appealing to prurient interest and devoid of redeeming social importance.

Miller was tried in a State court, where a jury convicted him after viewing the brochures. Miller appealed, arguing that the conviction violated the First Amendment of the Constitution, which protects freedom of speech, because the statute’s definition of “obscene” was unconstitutional. The Appellate Department, Superior Court of California (County of Orange), summarily affirmed the judgment without issuing an opinion. Miller sought review before the California Court of Appeal, but it was denied. Miller then petitioned the U.S. Supreme Court. The Justices explicitly used Miller’s case as an opportunity to reconsider and clarify the constitutional test for obscenity, which had fractured into multiple inconsistent standards across jurisdictions.

Decision Overview

Chief Justice Burger delivered the opinion for the Supreme Court of the United States of America, joined by Justices White, Blackmun, Powell, and Rehnquist. Justices Douglas, Brennan, Stewart, and Marshall dissented. The central issue before the Court was whether California’s criminal obscenity statute, as applied to Miller’s unsolicited mailed brochures, breached the First Amendment. The Court also defined what constitutional standard should govern the identification of obscene material. In other words, the Court defined the standards that should be used to identify obscene material that a State may regulate without infringing on the First Amendment.

The appellant, Miller, argued that California’s statute was unconstitutionally vague and overbroad, thereby chilling protected expression under the First Amendment. He relied on Memoirs v. Massachusetts, where the U.S. Supreme Court said that obscene materials should be “utterly without redeeming social value” to be deemed as such. By that standard, Miller contended that California’s obscenity laws gave juries excessive discretion to censor materials and failed to provide adequate notice of what was prohibited. He warned that shifting community views on morality could suppress artistic or literary works that offended only some members of society.

The State of California countered that it had a legitimate and compelling interest in regulating the distribution of obscene material, especially when disseminated without consent or where it might reach children. Citing Roth v. United States, which declared that “obscene material is not protected by the First Amendment,” the State argued that obscenity lies outside the boundaries of free speech. It urged the Court to abandon the “utterly without redeeming social value” requirement (Memoirs v. Massachusetts), which made effective enforcement nearly impossible.

The Court accepted the State’s argument and reaffirmed that “obscene material is not protected by the First Amendment.” [p. 36] It treated obscenity as a category of expression outside constitutional protection. Drawing on Roth v. United States, Jacobellis v. Ohio, Ginsberg v. New York, and Stanley v. Georgia, the Court stressed that while private possession of obscene material in the home may be protected, public distribution may be regulated to safeguard unwilling recipients and minors.

Chief Justice Burger criticized Memoirs for giving too much weight to marginal claims of social value, describing the “utterly without redeeming social value” formulation as impractical and constitutionally unnecessary. To provide clearer guidance, the Court set out a new three-part test that must be satisfied for material to be deemed obscene and thus subject to regulation:

1. Whether “the average person, applying contemporary community standards,” would find that the work, taken as a whole, appeals to prurient interest. [p. 24]
2. Whether the work depicts or describes, in a “patently offensive” way, sexual conduct specifically defined by applicable State law.
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Thus, the Court explicitly rejected the Memoirs standard (utterly without redeeming social value), holding instead that the proper inquiry should be whether the work lacks serious value—a lower—but constitutionally manageable—threshold.

Importantly, the Court held that a jury could measure the factual issues of prurient appeal and patent offensiveness by the standards that prevail in the forum community—i.e., States may use contemporary local community standards rather than a single national standard, recognizing diverse moral sensibilities across regions. At the same time, it emphasized that independent appellate review remained necessary to protect First Amendment values by ensuring that material with serious value would not be wrongfully suppressed.

Therefore, the Court concluded that obscene material is not protected by the First Amendment. Moreover, it rejected the Memoirs test as a constitutional standard, vacated Miller’s conviction, and remanded the case for further proceedings consistent with the new clarified standards. By doing so, it replaced the ambiguous Memoirs test with a concrete three-part framework, providing legislatures and juries with clearer authority to assess allegedly obscene material.

Dissenting opinions

Justice Douglas’s dissent

Justice Douglas issued a dissent. According to him, the First Amendment does not allow a State to punish people for distributing obscene materials, since courts have no principled way to define obscenity without endangering expression. He warned that terms like “patently offensive”—and reliance on “community standards”—were vague, subjective, and invited arbitrary censorship, giving juries and States excessive power to censor speech they dislike. For Douglas, the Constitution protects even expressions that shock or offend, since the First Amendment was designed to safeguard unpopular and minority voices. By allowing States to criminalize speech on moral grounds, the Court risked suppressing ideas and undermining the very foundation of free expression under the guise of obscenity regulations.

Justice Brennan’s dissent (joined by Stewart and Marshall)

Justice Brennan, joined by Justice Stewart and Justice Marshall, dissented too. He, who had previously supported the regulation of obscenity, concluded that the Court’s efforts to craft workable standards failed and that the regulation of adult obscenity was incompatible with the First Amendment. He criticized the Court’s new test as over broad and inherently vague, chilling lawful expression—considering that creators and publishers could not predict what a jury might label or deem obscene. While acknowledging that a State could restrict distribution to minors and protect unwilling recipients, Justice Brennan maintained that criminalizing the voluntary exchange of sexually explicit material among consenting adults impermissibly infringed free speech. Additionally, he emphasized that leaving obscenity judgments to shifting community standards granted excessive discretion to State authorities, enabling censorship of ideas under the guise of morality and undermining the constitutional commitment to freedom of speech.