additional cases - Higher Education

Supreme Court of the United States
Marvin MILLER, Appellant,
v.
State of CALIFORNIA. No. 70-73.
Argued Jan. 18-19, 1972.
Reargued Nov. 7, 1972.
Decided June 21, 1973.
Rehearing Denied Oct. 9, 1973. See414 U.S. 881 Defendant was convicted of mailing unsolicited sexually explicit material
in violation of a California statute and the Appellate Department, Superior
Court of California, County of Orange, affirmed and defendant appealed. The
Supreme Court, Mr. Chief Justice Burger, held that a work may be subject to
state regulation where that work, taken as a whole, appeals to the prurient
interest in sex; portrays, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and, taken as a whole,
does not have serious literary, artistic, political or scientific value.
The Court also rejected the test of 'utterly without redeeming social
value' as a constitutional standard. Vacated and remanded. Mr. Justice Douglas filed a dissenting opinion. Mr. Justice Brennan filed a dissenting opinion in which Mr. Justice
Stewart and Mr. Justice Marshall joined.
SyllabusFN* FN* The syllabus constitutes no part of the opinion of the Court but has
been prepared by the Reporter of Decisions for the convenience of the
reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,
337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
*15 Appellant was convicted of mailing unsolicited sexually explicit
material in violation of a California statute that approximately
incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383
U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (plurality opinion). The
trial court instructed the jury to evaluate the materials by the
contemporary community standards of California. Appellant's conviction was
affirmed on appeal. In lieu of the obscenity criteria enunciated by the
Memoirs plurality, it is held: 1. Obscene material is not protected by the First Amendment. Roth v.
United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, reaffirmed. A
work may be subject to state regulation where that work, taken as a whole,
appeals to the prurient interest in sex; portrays, in a patently offensive
way, sexual conduct specifically defined by the applicable state law; and,
taken as a whole, does not have serious literary, artistic, political, or
scientific value. P. 2614. 2. The basic guidelines for the trier of fact must be: (a) whether 'the
average person, applying contemporary community standards' would find that
the work, taken as a whole, appeals to the prurient interest, Roth supra,
at 489, 77 S.Ct. at 1311, (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the
applicable state law, and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value. If a state
obscenity law is thus limited, First Amendment values are adequately
protected by ultimate independent appellate review of constitutional claims
when necessary. P. 2615. 3. The test of 'utterly without redeeming social value' articulated in
Memoirs, supra, is rejected as a constitutional standard. P. 2615. 4. The jury may measure the essentially factual issues of prurient appeal
and patent offensiveness by the standard that prevails in the forum
community, and need not employ a 'national standard.' Pp. 2618-2620. Vacated and remanded.
*16 Burton Marks, Beverly Hills, Cal., for appellant. Michael R. Capizzi, Santa Ana, Cal., for appellee. Mr. Chief Justice BURGER delivered the opinion of the Court. This is one of a group of 'obscenity-pornography' cases being reviewed by
the Court in a re-examination of standards enunciated in earlier cases
involving what Mr. Justice Harlan called 'the intractable obscenity
problem.' **2611 Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704, 88
S.Ct. 1298, 1313, 20 L.Ed.2d 225 (1968) (concurring and dissenting). Appellant conducted a mass mailing campaign to advertise the sale of
illustrated books, euphemistically called 'adult' material. After a jury
trial, he was convicted of violating California Penal Code s 311.2(a), a
misdemeanor, by knowingly distributing obscene matter,FN1 *17 and the
Appellate Department, Superior Court of California, County of Orange,
summarily affirmed the judgment without opinion. Appellant's conviction was
specifically*18 based on his conduct in causing five unsolicited
advertising brochures to be sent through the mail in an envelope addressed
to a restaurant in Newport Beach, California. The envelope was opened by
the manager of the restaurant and his mother. They had not requested the
brochures; they complained to the police. FN1. At the time of the commission of the alleged offense, which was prior
to June 25, 1969, ss 311.2(a) and 311 of the California Penal Code read in
relevant part:'s 311.2 Sending or bringing into state for sale or
distribution; printing, exhibiting, distributing or possessing within
state'(a) Every person who knowingly: sends or causes to be sent, or brings
or causes to be brought, into this state for sale or distribution, or in
this state prepares, publishes, prints, exhibits, distributes, or offers to
distribute, or has in his possession with intent to distribute or to
exhibit or offer to distribute, any obscene matter is guilty of a
misdemeanor. . . .''s 311. Definitions'As used in this chapter:'(a)
'Obscene' means that to the average person, applying contemporary
standards, the predominant appeal of the matter, taken as a whole, is to
prurient interest, i.e., a shameful or morbid interest in nudity, sex, or
excretion, which goes substantially beyond customary limits of candor in
description or representation of such matters and is matter which is
utterly without redeeming social importance.'(b) 'Matter' means any book,
magazine, newspaper, or other printed or written material or any picture,
drawing, photograph, motion picture, or other pictorial represention or any
statue or other figure, or any recording, transcription or mechanical,
chemical or electrical reproduction or any other articles, equipment,
machines or materials.'(c) 'Person' means any individual, partnership,
firm, association, corporation, or other legal entity.'(d) 'Distribute'
means to transfer possession of, whether with or without consideration.'(e)
'Knowingly' means having knowledge that the matter is obscene.'Section
311(e) of the California Penal Code, supra, was amended on June 25, 1969,
to read as follows:'(e) 'Knowingly' means being aware of the character of
the matter.'Cal.Amended Stats.1969, c. 249, s 1, p. 598. Despite
appellant's contentions to the contrary, the record indicates that the new
s 311(e) was not applied ex post facto to his case, but only the old s
311(e) as construed by state decisions prior to the commission of the
alleged offense. See People v. Pinkus, 256 Cal.App.2d Supp. 941, 948-950,
63 Cal.Rptr. 680, 685-686 (App.Dept., Superior Ct., Los Angeles, 1967);
People v. Campise, 242 Cal.App.2d Supp. 905, 914, 51 Cal.Rptr. 815, 821
(App.Dept., Superior Ct. San Diego, 1966). Cf. Bouie v. City of Columbia,
378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Nor did s 311.2, supra,
as applied, create any 'direct, immediate burden on the performance of the
postal functions,' or infringe on congressional commerce powers under Art.
I, s 8, cl. 3. Roth v. United States, 354 U.S. 476, 494, 77 S.Ct. 1304,
1314, 1 L.Ed.2d 1498 (1957), quoting Railway Mail Assn. v. Corsi, 326 U.S.
88, 96, 65 S.Ct. 1483, 1488, 89 L.Ed. 2072 (1945). See also Mishkin v. New
York, 383 U.S. 502, 506, 86 S.Ct. 958, 962, 16 L.Ed.2d 56 (1966); Smith v.
California, 361 U.S. 147, 150-152, 80 S.Ct. 215, 217-218, 4 L.Ed.2d 205
(1959).
The brochures advertise four books entitled 'Intercourse,' 'Man-Woman,'
'Sex Orgies Illustrated,' and 'An Illustrated History of Pornography,' and
a film entitled 'Marital Intercourse.' While the brochures contain some
descriptive printed material, primarily they consist of pictures and
drawings very explicitly depicting men and women **2612 in groups of two or
more engaging in a variety of sexual activities, with genitals often
prominently displayed. I
This case involves the application of a State's criminal obscenity
statute to a situation in which sexually explicit materials have been
thrust by aggressive sales action upon unwilling recipients who had in no
way indicated any desire to receive such materials. This Court has
recognized that the States have a legitimate interest in prohibiting
dissemination or exhibition of obscene materialFN2 *19 when the mode of
dissemination carries with it a significant danger of offending the
sensibilities of unwilling recipients or of exposure to juveniles. Stanley
v. Georgia, 394 U.S. 557, 567, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969);
Ginsberg v. New York, 390 U.S. 629, 637-643, 88 S.Ct. 1274, 1279-1282, 20
L.Ed.2d 195 (1968); Interstate Circuit, Inc. v. Dallas, supra, 390 U.S., at
690, 88 S.Ct., at 1306; Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct.,
1414, 1415, 18 L.Ed.2d 515 (1967); Jacobellis v. Ohio, 378 U.S. 184, 195,
84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964). See Rabe v. Washington, 405
U.S. 313, 317, 92 S.Ct. 993, 995, 31 L.Ed.2d 258 (1972) (Burger, C.J.,
concurring); United States v. Reidel, 402 U.S. 351, 360-362, 91 S.Ct. 1410,
1414-1415, 28 L.Ed.2d 813 (1971) (opinion of Marshall, J.); Joseph Burstyn,
Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952);
Breard v. Alexandria, 341 U.S. 622, 644-645, 71 S.Ct. 920, 933-934, 95
L.Ed. 1233 (1951); Kovacs v. Cooper, 336 U.S. 77, 88-89, 69 S.Ct. 448, 454,
93 L.Ed