Restricting the publication and distribution of pornographic or obscene materials raises complex and difficult questions about the fundamental freedoms on which American law is based. Operating under the protection of the 1st Amendment, Americans enjoy an unequaled degree of freedom of expression. However, in 1989 the furor over a display of works by photographer Robert Mapplethorpe in Cincinnati showed that the issue of free expression can sharply divide communities. Who decides when some members of a community want to ban materials they see as "filth, lewdness and dirt," while others see the same material as "literary, artistic, and serious," and want their right to view it protected? Finding a balance between an individual's freedom to express thoughts and feelings on the one hand, and the State's police power to protect the morals and welfare of the community on the other, is what the Supreme Court was asked increasingly to do in the 1960s and 1970s.
Decisions in cases involving obscenity and censorship are very difficult for the Supreme Court. They require that the justices balance their reluctance to limit free expression and their understanding of a community's right to protect itself from influences it views as harmful. In cases such as Roth, 1957, and Ginzburg, 1966, the Court slowly and deliberately worked through the delicate task of distinguishing between protected and unprotected speech. In Roth, the Court set a precedent for judging materials obscene if they appealed exclusively to "prurient interests" and had "no redeeming social value." In the Miller case, the issue of restricting obscenity, with all the troubling prospects it raised, would come before the Court again.
The city of Newport Beach, California, rigidly applied a State obscenity law during the early 1970s. During that time, citizens complained about the content of advertisements received in the mail from an "adult" entertainment dealer. Envelopes full of advertisements, which included photographs of people engaged in sex acts, were offered as evidence. Miller was arrested and tried for violating portions of the State Criminal Code of California having to do with obscenity. Convicted, Miller appealed to the California Supreme Court, and later to the U.S. Supreme Court.
An "expert" police witness offered important testimony providing evidence concerning a statewide survey on what various communities considered obscene. Having testified 26 times earlier in the year in trials concerning obscenity, the officer was regarded as an expert on obscenity in California. He identified the Miller materials as "patently obscene" according to the standards of the communities he had surveyed.
The case involved the basic concept of freedom of expression as protected by the 1st Amendment, and as applied to the States by the 14th Amendment. Did the tests of obscenity put forward by the Supreme Court in Roth, 1957, and Ginzburg, 1966, still apply? Could a State law be so broad as to allow differing interpretations of "obscene" from city to city? Was such a broad law unconstitutional? Was there one interpretation of "obscene," or many? Should there be one interpretation, or many?
For Miller: Attorneys for Miller argued that the California State law and its local application exceeded the guidelines of the Roth and Ginzburg decisions. There cannot be hundreds of interpretations of obscenity and pornography. Moreover, the materials in question were not obscene under the Roth and Ginzburg guidelines. The California State law was unconstitutional.
For Newport Beach and the State of California: Citizens of Newport Beach, California, have the right not to be confronted with patently obscene materials arriving unwanted at their homes. The law is constitutional and is an appropriate action of the State to protect public health, safety, welfare, and morals under the police power reserved to it by the Constitution.
The Court upheld the California obscenity law and its application to Miller by a 5–4 vote. Upholding the Roth principle, the Court said that it still considered "obscenity" beyond the protection of the 1st Amendment. Writing for the majority, Chief Justice Burger expressed the Court's dilemma. "This much has been…settled by the Court, that obscene material is unprotected by the First Amendment…. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression."
While upholding that broad principle, the Court abandoned the "redeeming social value" guideline established in the Roth and Ginzburg decisions and substituted a new test of "obscenity."
The basic guidelines the Court put forward required three tests. First: to test whether "'the average person,' applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest…." The second test was to determine "whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law." The third test was to determine "whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value…." The Court went on to "emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts."
To answer critics who would cry "repression" and accuse the court of sanctioning censorship, Burger observed that "to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand [idea] of the First Amendment."
In ringing dissents, Justices Douglas, Marshall, Brennan, and Stewart all declared the California law "over broad," and therefore, unconstitutional. Justice Douglas, famed for this "absolutist" position on the 1st Amendment protections of freedom of expression, observed that "obscenity is not mentioned in the Constitution or the Bill of Rights…and [there is] no exception from the freedom of the press for obscenity. I find no constitutional guidelines for deciding what is and what is not 'obscene,'" Douglas wrote. Thus the Court was forced to consider "tastes and standards of literature"—a situation the Framers had directly intended to prohibit.
The guidelines handed down in the Miller case meant that the question of defining obscenity became a greater responsibility of local and State governments, using statutes that abided by the standard specified in the Miller decision.