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Cases about how to judge whether speech can be restricted based on how offensive and obscene it is: Miller v. California and Brown v. Entertainment Merchants Association. Miller is the famous case that sets up the standard, and Brown is a relatively recent difficult case that tests how to evaluate obscenity in new cultural forms (video games). Taken together, these two establish the standards for defining obscenity and show what happens when a line of precedent (in Roth and Memoirs) eventually needs to be corrected and clarified (by Miller). In Miller we're dealing with a contentious 5-4 decision where the dissents (by Douglas and Brennan) get a bit spicy. This case involves a state law in California criminalizing the distribution of "obscene matters." In Brown, we have California, but a group of video game merchants challenging a state obscenity law that punished selling violently "obscene" video games to minors. Neither opinion is super short, but definitely follow the notes to read strategically in Brown, as it's 90+ pages. Read the opinions as directed and answer the following questions. For Miller, focus on the majority and for Brown v. EMA focus on the majority opinion (although you can skim either dissent if you really want). After reading through both, response by answering the following key questions.

Answer each question in paragraph 1) What is Justice Burger's standard for assessing obscenity? 2) Why does Justice Burger suggest that "community standards" should be used instead of a national standard? According to the majority, what's the danger of a national standard? 3) Working through the majority opinion in Brown v. Entertainment Merchant's Association, why does Scalia say that video games should be considered protected speech? What makes them expression worthy of First Amendment protection? 4) Finally, how does Scalia connect video games to literature and specifically deal with arguments about violence, depictions, and interactivity Finally, at the end of the paper, if you have any lingering questions or things that are unclear about the case or the arguments, put them there under a heading "QUESTIONS" (which does not count towards the word count)

CASES:

BROWN v. ENTERTAINMENT MERCHANTS ASSN

https://www.supremecourt.gov/opinions/10pdf/08-1448.pdf

Miller v. California

25 26 OCTOBER TERM, 1972 MILLER v. CALIFORNIA Opinion of the Court 413 U. S. 15 Opinion of the Court 383 U. S., at 419; that concept has never commanded be exhibited or sold without limit in such public places. the adherence of more than three Justices at one time." Examples of At a minimum, prurient, patently offensive depiction or See supra, at 21. If a state law that regulates obscene what might be description of sexual conduct must have serious literary, material is thus limited, as written or construed, the conduct artistic, political, or scientific value to merit First First Amendment values applicable to the States through patently Amendment protection. See Kois v. Wisconsin, supra, the Fourteenth Amendment are adequately protected offensive" at 230-232; Roth v. United States, supra, at 487; Thorn- by the ultimate power of appellate courts to conduct an from above hill v. Alabama, 310 U. S. 88, 101-102 (1940). For ex- independent review of constitutional claims when nec- ample, medical books for the education of physicians and essary. See Kois v. Wisconsin, supra, at 232; Memoirs related personnel necessarily use graphic illustrations and v. Massachusetts, supra, at 459-460 (Harlan, J., dis- descriptions of human anatomy. In resolving the inevi- senting) ; Jacobellis v. Ohio, 378 U. S., at 204 (Harlan, tably sensitive questions of fact and law, we must con- J., dissenting); New York Times Co. v. Sullivan, 376 tinue to rely on the jury system, accompanied by the U. S. 254, 284-285 (1964) ; Roth v. United States, supra, safeguards that judges, rules of evidence, presumption of at 497-498 (Harlan, J., concurring and dissenting). innocence, and other protective features provide, as we We emphasize that it is not our function to propose do with rape, murder, and a host of other offenses regulatory schemes for the States. That must await against society and its individual members. their concrete legislative efforts. It is possible, however, MR. JUSTICE BRENNAN, author of the opinions of the to give a few plain examples of what a state statute Court, or the plurality opinions, in Roth v. United States, could define for regulation under part (b) of the standard supra; Jacobellis v. Ohio, supra; Ginzburg v. United announced in this opinion, supra: $ Although we are not presented here with the problem of reg- (a) Patently offensive representations or descriptions ulating lewd public conduct itself, the States have greater power to of ultimate sexual acts, normal or perverted, actual or regulate nonverbal, physical conduct than to suppress depictions or simulated descriptions of the same behavior. In United States v. O'Brien, (b) Patently offensive representations or descriptions 391 U. S. 367, 377 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both of masturbation, excretory functions, and lewd exhibition speech and nonspeech elements to be "sufficiently justified if . . of the genitals. it furthers an important or substantial governmental interest; if the Sex and nudity may not be exploited without limit governmental interest is unrelated to the suppression of free expres- by films or pictures exhibited or sold in places of public sion; and if the incidental restriction on alleged First Amendment accommodation any more than live sex and nudity can freedoms is no greater than is essential to the furtherance of that interest." See California v. LaRue, 409 U. S. 109, 117-118 (1972). 7 "A quotation from Voltaire in the flyleaf of a book will not con- The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. stitutionally redeem an otherwise obscene publication . .. ." Kois v. As this Court observed in Roth v. United States, 354 U. S., at 492 Wisconsin, 408 U. S. 229, 231 (1972). See Memoirs v. Massachusetts, n. 30, "it is common experience that different juries may reach 383 U. S. 413, 461 (1966) (WHITE, J., dissenting). We also reject, as different results under any criminal statute. That is one of the a constitutional standard, the ambiguous concept of "social im- consequences we accept under our jury system. Cf. Dunlop v. portance." See id., at 462 (WHITE, J., dissenting). United States, 165 U. S. 486, 499-500."MILLER u. CALIFORNLA. 31 15 Opinion of the Court law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of the material as a whole . . . appeals to the prurient interest\" and in determining whether the material "goes substan- tially beyond customary limits of candor and aronts contemporary community standards of decency,\" it was to apply \"contemporary community standards of the State of California.\" During the trial, both the prosecution and the de- fense assumed that the relevant \"community standards\" in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. De- fense counsel at trial never objected to the testimony of the State's expert on community standards 1' or to the in- structions of the trial judge on \"statewide\" standards On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the rst time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments. We conclude that neither the State's alleged failure to offer evidence of \"national standards,\" nor the trial court's charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amend- ment requires that a jury must consider hypothetical and unascertainable \"national standards\" when attempting to determine whether certain materials are obscene as a mat- 13The record simply does not support appellant's contention, be- latedly raised on appeal, that the State's expert was unqualied to give evidence on California "community standards.\" The expert, a police oicer with many years of specialization in obscenity offensm, had conducted an extensive stateWide survey and had given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert testimony was certainly not constitutional error. Cf. United States v. Augeablick, 393 U. S. 348, 356 (1969). 32 OCTOBER TERM, 1972 Opinion of the Court 41311.8. ter of fact. Mr. Chief Justice Warren pointedly com- mented in his dissent in Jacobellia v, Ohio, supra, at 200: \"It is my belief that when the Court said in Roth that obscenity is to be dened by reference to 'community standards,' it meant community standardsnot a national standard, as is sometimes argued. I believe that there is no provable 'na tional standard' . . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.\" It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.\" \" In Jacobo!!!) v. Ohio, 378 U. S. 184 (1964), two Justices argued that application of "local\" community standards would run the risk of preventing disseunation of materials in some places because sellers would be unwilling to risk criminal conviction by testing variations in standards from place to place. Id, at 193195 (opinion of BRENNAN, J., joined by Goldberg, J.). The use of "national" standards, however, necessarily implies that materials found toler- able in some places, but not under the "national" criteria. will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression seem at least as great in the application of a single nationwide standard as in allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. Um'ted States, 354 U. 8., at 506. Appellant also argues that adherence to a \"national standard\" is necessary \"in order to avoid unconscionable burdens on the free ow of interstate commerce.\" As noted supra, at 18 n. 1. the applimtion of domestic state police powers in this use did not intrude on any congressional powers under Art. I, 8, cl. 3, {or there is no indication that appellant's materials were ever dis- tributed interstate. Appellant's argument would appear without substance in any event. Obscene material may be validly regulated by a. State in the exercise of its traditional local power to protect the MILLER v. CALIFORNIA 15 16 OCTOBER TERM, 1972 Syllabus Opinion of the Court 413 U.S. BURGER, C. J., delivered the opinion of the Court, in which WHITE, MILLER v. CALIFORNIA BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 37. BRENNAN, J., filed a dis- APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR senting opinion, in which STEWART and MARSHALL, JJ., joined, COURT OF CALIFORNIA, COUNTY OF ORANGE post, p. 47. No. 70-73. Argued January 18-19, 1972-Reargued November 7, Burton Marks reargued the cause and filed a brief for 1972-Decided June 21, 1973 appellant. Appellant was convicted of mailing unsolicited sexually explicit mate- rial in violation of a California statute that approximately in- Michael R. Capizzi reargued the cause for appellee. corporated the obscenity test formulated in Memoirs v. Massachu With him on the brief was Cecil Hicks.* setts, 383 U. S. 413, 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary MR. CHIEF JUSTICE BURGER delivered the opinion of community standards of California. Appellant's conviction was the Court. affirmed on appeal. In lieu of the obscenity criteria enunciated This is one of a group of "obscenity-pornography" by the Memoirs plurality, it is held: 1. Obscene material is not protected by the First Amendment. cases being reviewed by the Court in a re-examination Roth v. United States, 354 U. S. 476, reaffirmed. A work may be of standards enunciated in earlier cases involving what subject to state regulation where that work, taken as a whole, Mr. Justice Harlan called "the intractable obscenity prob- appeals to the prurient interest in sex; portrays, in a patently lem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, offensive way, sexual conduct specifically defined by the applicable 704 (1968) (concurring and dissenting). state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23-24. Appellant conducted a mass mailing campaign to ad- 2. The basic guidelines for the trier of fact must be: (a) whether vertise the sale of illustrated books, euphemistically called "the average person, applying contemporary community standards" We deal with a "adult" material. After a jury trial, he was convicted would find that the work, taken as a whole, appeals to the lot of California of violating California Penal Code $ 311.2 (a), a mis- prurient interest, Roth, supra, at 489, (b) whether the work demeanor, by knowingly distributing obscene matter, depicts or describes, in a patently offensive way, sexual conduct laws, huh? I'm specifically defined by the applicable state law, and (c) whether just realizing *Samuel Rosenwein, A. L. Wirin, Fred Okrand, Laurence R. the work, taken as a whole, lacks serious literary, artistic, political, that Sperber, Melvin L. Wulf, and Joel M. Gora filed a brief for the or scientific value. If a state obscenity law is thus limited, First American Civil Liberties Union of Southern California et al. as Amendment values are adequately protected by ultimate independ- amici curiae urging reversal. ent appellate review of constitutional claims when necessary. 1 At the time of the commission of the alleged offense, which was Pp. 24-25. prior to June 25, 1969, $8 311.2 (a) and 311 of the California Penal 3. The test of "utterly without redeeming social value" articu Code read in relevant part: lated in Memoirs, supra, is rejected as a constitutional standard. "$ 311.2 Sending or bringing into state for sale or distribution; Pp. 24-25 printing, exhibiting, distributing or possessing within state 4. The jury may measure the essentially factual issues of prurient "(a) Every person who knowingly: sends or causes to be sent, appeal and patent offensiveness by the standard that prevails in or brings or causes to be brought, into this state for sale or distribu- the forum community, and need not employ a "national standard." tion, or in this state prepares, publishes, prints, exhibits, distributes, Pp. 30-34. or offers to distribute, or has in his possession with intent to dis- Vacated and remanded.MILLER 1!. CALIFORNIA 45 15 Douonss, J ., dissenting dispensing tranquilizers to the people. Its prime func- tion was to keep debate open to \"oensive\" as well as to \"staid\" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard \"o'ensive\" gives authority to government that cuts the very vitals out of the First Amendment.\" As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendmentand solely because of it- speakers and publishers have not been threatened or subdued because their thoughts and ideas may be \"oli'en- sive\" to some. The standard \"oEensive\" is unconstitutional in yet another way. In Castes v. City of Cincinnati, 402 U. S. 611, we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves \"in a manner annoying to persOns 'Ohsoenity law has had a capricious history: \"The white slave traic was rst exposed by W. T. Stead in a mega- zine article, 'The Maiden Tribute.' The English law did absolutely nothing to the proteeis in. vice, but put Stud in prison for a. year for writing about an indecent subject. When the law supplies no denite standard of criminality, a. judge in deciding what is indecent or profane may consciously disregard the sound test of prment injury, and proceeding upon an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus musical comedies enjoy almost unbridled license, while a problem play is oft.- forbidden because opposed to our views of marriage. In the some way, the law of blasphemy has been used against Shelley's Queen Hub and the deoorous promulgation of pantheistic ideas, on the ground that to attack religion is to loosen the bonds of society and endanger the state. This is simply a roundabout modern method to make heterodoxy in sex matters and even in religion a crime." Z. Chafee, Free Speech in the United States 151 (1942). 46 OCTOBER. TERM, 1972 Denotes, J., dissenting 413 U. S. passing by." We struck it down, saying: \"If three or more people meet together on a sidewalk or street cor- ner, they must conduct themselves so as not to annoy any police ofcer or other person who should happen to pass by. In our opinion this ordinance is unconstitu- tionally vague because it subjects the exercise of the right of assembly to an unsscertainable standard, and uncon- stitutionally broad because it authorizes the punishment of constitutionally protected conduct. \"Conduct that annoys some people does not annoy others. Thus, the ordinance is Vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specied at all.\" Id, at 614. How we can deny Ohio the convenience of punishing people who \"annoy\" others and. allow California power to punish people who publish materials \"offensive\" to some people is dioult to square with constitutional requirements. If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achiev ing the end. There are societies where religion and math- ematics are the only free segments. It would be a dark day for America. if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and dene it. We deal with highly emotional, not rational, questions. To many the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make denitions of obscenity. If it is to be dened, let the people debate and decide by a consti- tutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a. mature, integrated society requires woman 1:. CALIFORNIA 29 15 Opinion of the Court Theatre I v. Slnton, post, at 92, 93. He also notes, and we agree, that "uncertainty of the standards creates a continuing source of tension between state and federal courts . . . ." \"The problem is . . . that one cannot say with certainty that material is obmene until at least ve members of this Court, applying inevitably obscure standards, have pronounced it so.\" Id, at 93, 92. It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the rst time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate \"hard core\" pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redmp v. New York, 386 U. S. 767 (1967'), and attempt to provide positive guidance to federal and state courts alike. This may not be an easy road, free from difculty. But no amount of "fatigue\" should lead us to adopt a convenient \"institutional" rationalean absolutist, \"anything we\" View of the First Amendmentbecause it will lighten our burdens.\" \"Such an abnegation of judicial supervision in this eld would be inconsistent with our duty to uphold the constitutional guarantees." Jacobelhb v. Ohio, supra, at 187188 (opinion of BanN- NAN, J.). Nor should we remedy \"tension between state and federal courts\" by arbitrarily depriving the States of a power reserved to them under the Constitution, as power which they have enjoyed and exm-cised contin- uously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 482- 4:85. \"Our duty admits of no 'substitute for facing up n We must note, in addition, that any asmnption concerning the relative burdens of the post and the probable burden under the standards now adopted is pure speculation. Jump back in here. 30 OCTOBER TERM, 1972 Opinion of the Court 413U.S. to the tough individual problems of constitutional judg- ment involved in every obscenity case.' [Roth v. United States, supra, at 498]; see Mme! Enterprises, Inc. v. Day, 370 U. S. 478, 488 (opinion of Harlan, J.) [footnote omitted].\" Jacobelh's v. Ohio, supra, at 188 (opinion of BRENNAN, L). III Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, xed, uniform national standards of precisely what appeals to the "prurient interest\" or 'm \"patently offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reason- ably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequiute consensus exists. When triers of fact are asked to decide whether \"the average person, applying contemporary community standards\" would consider cer- tain materials \"prurient,\" it would be unrealistic to re- quire that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factnders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national "community stander \" would be an exercise in futility. As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Manor's-r. This, a \"national\" standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case MILLER v. CALIFORNIA 27 28 OCTOBER TERM, 1972 413 U.S. 15 Opinion of the Court Opinion of the Court States, 383 U. S. 463 (1966), Mishkin v. New York, 383 the inability to define regulated materials with ultimate, Hi, this is U. S. 502 (1966) ; and Memoirs v. Massachusetts, supra, god-like precision altogether removes the power of the States or the Congress to regulate, then "hard core" something new has abandoned his former position and now maintains for us--the that no formulation of this Court, the Congress, or the pornography may be exposed without limit to the ju- States can adequately distinguish obscene material un- venile, the passerby, and the consenting adult alike, as, majority is indeed, MR. JUSTICE DOUGLAS contends. As to MR. Jus- explicitly protected by the First Amendment from protected ex- TICE DOUGLAS' position, see United States v. Thirty-seven sparring with pression, Paris Adult Theatre I v. Slaton, post, p. 73 BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE Photographs, 402 U. S. 363, 379-380 (1971) (Black, J. what the BRENNAN indicates that suppression of unprotected ob- joined by DOUGLAS, J., dissenting) ; Ginzburg v. United dissent says in scene material is permissible to avoid exposure to un- States, supra, at 476, 491-492 (Black, J., and DOUGLAS, a different consenting adults, as in this case, and to juveniles, al- J., dissenting) ; Jacobellis v. Ohio, supra, at 196 (Black, opinion. though he gives no indication of how the division between J., joined by DOUGLAS, J., concurring) ; Roth, supra, at protected and nonprotected materials may be drawn with 508-514 (DOUGLAS, J., dissenting). In this belief, how- greater precision for these purposes than for regulation ever, MR. JUSTICE DOUGLAS now stands alone. of commercial exposure to consenting adults only. Nor Eh, this is MR. JUSTICE BRENNAN also emphasizes "institutional does he indicate where in the Constitution he finds the stress" in justification of his change of view. Noting that not really authority to distinguish between a willing "adult" one "[the number of obscenity cases on our docket gives important. month past the state law age of majority and a willing ample testimony to the burden that has been placed 'juvenile" one month younger. upon this Court," he quite rightly remarks that the exam- Under the holdings announced today, no one will be ination of contested materials "is hardly a source of edification to the members of this Court." Paris Adult subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe pat- language 'conveys sufficiently definite warning as to the proscribed ently offensive "hard core" sexual conduct specifically conduct when measured by common understanding and prac defined by the regulating state law, as written or con- tices. . . .' United States v. Petrillo, 332 U. S. 1, 7-8. These strued. We are satisfied that these specific prerequisites words, applied according to the proper standard for judging ob- will provide fair notice to a dealer in such materials scenity, already discussed, give adequate warning of the conduct that his public and commercial activities may bring proscribed and mark '. . . boundaries sufficiently distinct for judges and juries fairly to administer the law . . .. That there may be prosecution. See Roth v. United States, supra, at 491- marginal cases in which it is difficult to determine the side of the line 492. Cf. Ginsberg v. New York, 390 U. S., at 643.10 If on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . .' 10 As MR. JUSTICE BRENNAN stated for the Court in Roth v. United Id., at 7. See also United States v. Harriss, 347 U. S. 612, 624, States, supra, at 491-492: n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 340; "Many decisions have recognized that these terms of obscenity United States v. Ragen, 314 U. S. 513, 523-524; United States v. statutes are not precise. [Footnote omitted.] This Court, however, Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266 has consistently held that lack of precision is not itself offensive to U. S. 497; For v. Washington, 236 U. S. 273; Nash v. United States, the requirements of due process. '. . . [T]he Constitution does 229 U. S. 373." not require impossible standards'; all that is required is that theMILLER v. CALIFORNIA 47 18 RM, 1972 15 BRENNAN, J., dissenting BRENNAN, J., dissenting 413 U.S. that all ideas competing for acceptance must have no from Dombrowski v. Pfister, 380 U. S. 479, 486 (1965) censor. Perhaps they will decide otherwise. Whatever See also Baggett v. Bullitt, 377 U. S. 360, 366 (1964) the choice, the courts will have some guidelines. Now Coates v. City of Cincinnati, 402 U. S. 611, 616 (1971); we have none except our own predilections. id., at 619-620 (WHITE, J., dissenting); United States v. Raines, 362 U. S. 17, 21-22 (1960); NAACP v. Button, MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEW- 371 U. S. 415, 433 (1963). Since my view in Paris Adult ART and MR. JUSTICE MARSHALL join, dissenting. Theatre I represents a substantial departure from the In my dissent in Paris Adult Theatre I v. Slaton, post, course of our prior decisions, and since the state courts p. 73, decided this date, I noted that I had no occasion to have as yet had no opportunity to consider whether a consider the extent of state power to regulate the dis- "readily apparent construction suggests itself as a vehicle tribution of sexually oriented material to juveniles or for rehabilitating the [statute] in a single prosecution," the offensive exposure of such material to unconsenting Dombrowski v. Pfister, supra, at 491, I would reverse the adults. In the case before us, appellant was con- judgment of the Appellate Department of the Superior victed of distributing obscene matter in violation of Court and remand the case for proceedings not incon- California Penal Code $311.2, on the basis of evi- sistent with this opinion. See Coates v. City of Cincin- dence that he had caused to be mailed unsolicited bro- nati, supra, at 616. chures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amend- ment, criminal penalties for the precise conduct at issue here. For it is clear that under my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore in- valid on its face.* "[The transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demon- strate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.'" Gooding v. Wilson, 405 U. S. 518, 521 (1972), quoting #Cal. Penal Code $ 311.2 (a) provides that "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 pre- pares, 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."MILLER v. CALIFORNIA 23 24 OCTOBER TERM, 1972 15 Opinion of the Court Opinion of the Court 413 U. S. of freedom of speech and press the courts must always carefully limited. See Interstate Circuit, Inc. v. Dallas, remain sensitive to any infringement on genuinely serious supra, at 682-685. As a result, we now confine the literary, artistic, political, or scientific expression. This This is the permissible scope of such regulation to works which is an area in which there are few eternal verities. standard, the depict or describe sexual conduct. That conduct must The case we now review was tried on the theory that "trier of fact" be specifically defined by the applicable state law, as the California Penal Code $ 311 approximately incor- written or authoritatively construed. A state offense porates the three-stage Memoirs test, supra. But now must also be limited to works which, taken as a whole, the Memoirs test has been abandoned as unworkable by appeal to the prurient interest in sex, which portray its author,* and no Member of the Court today supports sexual conduct in a patently offensive way, and which, the Memoirs formulation. taken as a whole, do not have serious literary, artistic, political, or scientific value. II The basic guidelines for the trier of fact must be: This much has been categorically settled by the Court, (a) whether "the average person, applying contemporary that obscene material is unprotected by the First Amend- community standards" would find that the work, taken ment. Kois v. Wisconsin, 408 U. S. 229 (1972) ; United as a whole, appeals to the prurient interest, Kois v. Wis- States v. Reidel, 402 U. S., at 354; Roth v. United States, consin, supra, at 230, quoting Roth v. United States, supra, at 485.5 "The First and Fourteenth Amendments supra, at 489; (b) whether the work depicts or describes, have never been treated as absolutes [footnote omitted]." in a patently offensive way, sexual conduct specifically Breard v. Alexandria, 341 U. S., at 642, and cases cited. defined by the applicable state law; and (c) whether See Times Film Corp. v. Chicago, 365 U. S. 43, 47-50 the work, taken as a whole, lacks serious literary, (1961); Joseph Burstyn, Inc. v. Wilson, 343 U. S., at artistic, political, or scientific value. We do not adopt 502. We acknowledge, however, the inherent dangers as a constitutional standard the "utterly without redeem- of undertaking to regulate any form of expression. State ing social value" test of Memoirs v. Massachusetts, statutes designed to regulate obscene materials must be See, e. g., Oregon Laws 1971, c. 743, Art. 29, $$ 255-262, and Hawaii Penal Code, Tit. 37, $$ 1210-1216, 1972 Hawaii Session Laws, * See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Act 9, c. 12, pt. II, pp. 126-129, as examples of state laws directed at Adult Theatre I v. Slaton, post, p. 73. depiction of defined physical conduct, as opposed to expression. Other 5 As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. state formulations could be equally valid in this respect. In giving Ohio, 378 U. S. 184, 200 (1964) : the Oregon and Hawaii statutes as examples, we do not wish to be "For all the sound and fury that the Roth test has generated, it understood as approving of them in all other respects nor as estab- has not been proved unsound, and I believe that we should try to lishing their limits as the extent of state power. live with it-at least until a more satisfactory definition is evolved. We do not hold, as MR. JUSTICE BRENNAN intimates, that all No government-be it federal, state, or local-should be forced to States other than Oregon must now enact new obscenity statutes. choose between repressing all material, including that within the Other existing state statutes, as construed heretofore or hereafter, realm of decency, and allowing unrestrained license to publish any may well be adequate. See United States v. 12 200-ft. Reels of material, no matter how vile. There must be a rule of reason in Film, post, at 130 n. 7. this as in other areas of the law, and we have attempted in the Roth case to provide such a rule."MILLER v. CALIFORNIA 21 22 OCTOBER TERM, 1972 413 U.S. 15 Opinion of the Court' Opinion of the Court value as a step to truth that any benefit that may that to prove obscenity it must be affirmatively estab- be derived from them is clearly outweighed by the lished that the material is "utterly without redeeming social interest in order and morality. . . .' [Emphas social value." Thus, even as they repeated the words of sis by Court in Roth opinion.] long story short, Roth, the Memoirs plurality produced a drastically altered "We hold that obscenity is not within the area of Roth was messy, test that called on the prosecution to prove a negative, constitutionally protected speech or press." 354 and Memoirs i. e., that the material was "utterly without redeeming U. S., at 484 485 (footnotes omitted). made it messier social value"-a burden virtually impossible to discharge under our criminal standards of proof. Such considera- Nine years later, in Memoirs v. Massachusetts, 383 U. S. tions caused Mr. Justice Harlan to wonder if the "utterly 413 (1966), the Court veered sharply away from the without redeeming social value" test had any meaning Roth concept and, with only three Justices in the plurality at all. See Memoirs v. Massachusetts, id., at 459 (Har- opinion, articulated a new test of obscenity. The plural- lan, J., dissenting). See also id., at 461 (WHITE, J., ity held that under the Roth definition dissenting) ; United States v. Groner, 479 F. 2d 577, 579- "as elaborated in subsequent cases, three ele- 581 (CA5 1973). ments must coalesce: it must be established that Apart from the initial formulation in the Roth case, no (a) the dominant theme of the material taken as a majority of the Court has at any given time been able whole appeals to a prurient interest in sex; (b) the to agree on a standard to determine what constitutes material is patently offensive because it affronts con- obscene, pornographic material subject to regulation temporary community standards relating to the de- under the States' police power. See, e. g., Redrup v. scription or representation of sexual matters; and New York, 386 U. S., at 770-771. We have seen "a (c) the material is utterly without redeeming social variety of views among the members of the Court un- value." Id., at 418. matched in any other course of constitutional adjudi- The sharpness of the break with Roth, represented by the cation." Interstate Circuit, Inc. v. Dallas, 390 U. S., third element of the Memoirs test and emphasized by at 704-705 (Harlan, J., concurring and dissenting) (foot- MR. JUSTICE WHITE'S dissent, id., at 460 462, was note omitted).' This is not remarkable, for in the area further underscored when the Memoirs plurality went on 3 In the absence of a majority view, this Court was compelled to state: to embark on the practice of summarily reversing convictions for 'The Supreme Judicial Court erred in holding that the dissemination of materials that at least five members of a book need not be 'unqualifiedly worthless before it the Court, applying their separate tests, found to be protected can be deemed obscene.' A book cannot be pro- by the First Amendment. Redrup v. New York, 386 U. S. 767 (1967). Thirty-one cases have been decided in this manner. Be- scribed unless it is found to be utterly without re- yond the necessity of circumstances, however, no justification has deeming social value." Id., at 419 (emphasis in ever been offered in support of the Redrup "policy." See Walker v. original). Ohio, 398 U. S. 434-435 (1970) (dissenting opinions of BURGER, While Roth presumed "obscenity" to be "utterly C. J., and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively without redeeming social importance," Memoirs required judging each piece of material brought before us.MILLER v. CALIFORNIA 35 36 OCTOBER TERM, 1972 15 Opinion of the Court Opinion of the Court 413 U.S. political and social changes desired by the people," Roth of censorship of ideas-good or bad, sound or unsound- v. United States, supra, at 484 (emphasis added). See and "repression" of political liberty lurking in every state Kois v. Wisconsin, 408 U. S., at 230-232; Thornhill v. regulation of commercial exploitation of human interest Alabama, 310 U. S., at 101-102. But the public por- in sex. trayal of hard-core sexual conduct for its own sake, and MR. JUSTICE BRENNAN finds "it is hard to see how for the ensuing commercial gain, is a different matter.15 state-ordered regimentation of our minds can ever be There is no evidence, empirical or historical, that forestalled." Paris Adult Theatre I v. Slaton, post, at the stern 19th century American censorship of public 110 (BRENNAN, J., dissenting). These doleful anticipa- distribution and display of material relating to sex, tions assume that courts cannot distinguish commerce in see Roth v. United States, supra, at 482 485, in ideas, protected by the First Amendment, from commer- cial exploitation of obscene material. Moreover, state any way limited or affected expression of serious literary, regulation of hard-core pornography so as to make it artistic, political, or scientific ideas. On the contrary unavailable to nonadults, a regulation which MR. JUS- it is beyond any question that the era following Thomas TICE BRENNAN finds constitutionally permissible, has Jefferson to Theodore Roosevelt was an "extraordinarily all the elements of "censorship" for adults; indeed vigorous period," not just in economics and politics, but even more rigid enforcement techniques may be called in belles lettres and in "the outlying fields of social and for with such dichotomy of regulation. See Interstate political philosophies."" We do not see the harsh hand Circuit, Inc. v. Dallas, 390 U. S., at 690." One can concede that the "sexual revolution" of recent years may 15 In the apt words of Mr. Chief Justice Warren, appellant in this case was "plainly engaged in the commercial exploitation of have had useful byproducts in striking layers of prudery the morbid and shameful craving for materials with prurient effect. from a subject long irrationally kept from needed ven- I believe that the State and Federal Governments can constitutionally tilation. But it does not follow that no regulation of punish such conduct. That is all that these cases present to us, patently offensive "hard core" materials is needed or and that is all we need to decide." Roth v. United States, supra, at permissible; civilized people do not allow unregulated 496 (concurring opinion). 16 See 2 V. Parrington, Main Currents in American Thought access to heroin because it is a derivative of medicinal ix et seq. (1930). As to the latter part of the 19th century, Parring- morphine. ton observed "A new age had come and other dreams-the age and In sum, we (a) reaffirm the Roth holding that obscene the dreams of a middle-class sovereignty . . . . From the crude and material is not protected by the First Amendment; vast romanticisms of that vigorous sovereignty emerged eventually a (b) hold that such material can be regulated by the spirit of realistic criticism, seeking to evaluate the worth of this new States, subject to the specific safeguards enunciated America, and discover if possible other philosophies to take the place of those which had gone down in the fierce battles of the 17 "[We have indicated . . . that because of its strong and Civil War." Id., at 474. Cf. 2 S. Morison, H. Commager & W. abiding interest in youth, a State may regulate the dissemination to Leuchtenburg, The Growth of the American Republic 197-233 (6th juveniles of, and their access to, material objectionable as to them, ed. 1969); Paths of American Thought 123-166, 203-290 (A. but which a State clearly could not regulate as to adults. Ginsberg Schlesinger & M. White ed. 1963) (articles of Fleming, Lerner, Morton v. New York, . . . [390 U. S. 629 (1968)]." Interstate Circuit, Inc. & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and v. Dallas, 390 U. S. 676, 690 (1968) (footnote omitted). H. Wish, Society and Thought in Modern America 337-386 (1952).MILLER v. CALIFORNIA 19 20 OCTOBER TERM, 1972 15 Opinion of the Court Opinion of the Court 413 U.S. when the mode of dissemination carries with it a sig- on to define the standards which must be used to identify nificant danger of offending the sensibilities of unwilling obscene material that a State may regulate without in- recipients or of exposure to juveniles. Stanley v. Geor- fringing on the First Amendment as applicable to the gia, 394 U. S. 557, 567 (1969); Ginsberg v. New York, States through the Fourteenth Amendment. 390 U. S. 629, 637-643 (1968); Interstate Circuit, Inc. The dissent of MR. JUSTICE BRENNAN reviews the v. Dallas, supra, at 690; Redrup v. New York, 386 U. S. background of the obscenity problem, but since the 767, 769 (1967) ; Jacobellis v. Ohio, 378 U. S. 184, 195 Court now undertakes to formulate standards more con- 1964). See Rabe v. Washington, 405 U. S. 313, 317 This is teh sort of crete than those in the past, it is useful for us to focus (1972) (BURGER, C. J., concurring) ; United States v. background of on two of the landmark cases in the somewhat tortured Reidel, 402 U. S. 351, 360-362 (1971) (opinion of MAR- earlier cases that history of the Court's obscenity decisions. In Roth v. SHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. established this United States, 354 U. S. 476 (1957), the Court sustained 195, 502 (1952); Breard v. Alexandria, 341 U. S. 622, line of precedent a conviction under a federal statute punishing the mailing 644-645 (1951); Kovacs v. Cooper, 336 U. S. 77, 88-89 that's now being of "obscene, lewd, lascivious or filthy ..." materials. The (1949) ; Prince v. Massachusetts, 321 U. S. 158, 169-170 reviewed. key to that holding was the Court's rejection of the claim (1944). Cf. Butler v. Michigan, 352 U. S. 380, 382-383 that obscene materials were protected by the First (1957) ; Public Utilities Comm'n v. Pollak, 343 U. S. 451, Amendment. Five Justices joined in the opinion stating 464 465 (1952). It is in this context that we are called 'All ideas having even the slightest redeeming social importance-unorthodox ideas, controversial gusting to the senses . . . b: grossly repugnant to the generally ideas, even ideas hateful to the prevailing climate accepted notions of what is appropriate . . . 2: offensive or revolt- ing as countering or violating some ideal or principle." The Oxford of opinion-have the full protection of the [First English Dictionary (1933 ed.) gives a similar definition, "[offfensive Amendment] guaranties, unless excludable because to the senses, or to taste or refinement; disgusting, repulsive, filthy, they encroach upon the limited area of more im- foul, abominable, loathsome." portant interests. But implicit in the history of The material we are discussing in this case is more accurately the First Amendment is the rejection of obscenity defined as "pornography" or "pornographic material." "Pornog- as utterly without redeeming social importance. . . raphy" derives from the Greek (porne, harlot, and graphos, writing) The word now means "1: a description of prostitutes or prostitu- This is the same judgment expressed by this Court tion 2: a depiction (as in writing or painting) of licentiousness or in Chaplinsky v. New Hampshire, 315 U. S. 568, lewdness: a portrayal of erotic behavior designed to cause sexual 571-572 excitement." Webster's Third New International Dictionary, supra. "'. . . There are certain well-defined and nar- Pornographic material which is obscene forms a sub-group of all rowly limited classes of speech, the prevention and "obscene" expression, but not the whole, at least as the word "ob- scene" is now used in our language. We note, therefore, that the punishment of which have never been thought to words "obscene material," as used in this case, have a specific judicial raise any Constitutional problem. These include meaning which derives from the Roth case, i. e., obscene material the lewd and obscene . . . . It has been well ob- "which deals with sex." Roth, supra, at 487. See also ALI served that such utterances are no essential part of Model Penal Code $ 251.4 (1) "Obscene Defined." (Official Draft any exposition of ideas, and are of such slight social 1962.)MILLER v. CALIFORNIA 17 18 OCTOBER TERM, 1972 15 Opinion of the Court Opinion of the Court 413 U. S. and the Appellate Department, Superior Court of Cali- cifically based on his conduct in causing five unsolicited fornia, County of Orange, summarily affirmed the judge advertising brochures to be sent through the mail in ment without opinion. Appellant's conviction was spe- an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the tribute or to exhibit or offer to distribute, any obscene matter is manager of the restaurant and his mother. They had guilty of a misdemeanor. . . ." not requested the brochures; they complained to the '$ 311. Definitions police. "As used in this chapter: "(a) 'Obscene' means that to the average person, applying con- The brochures advertise four books entitled "Inter- temporary standards, the predominant appeal of the matter, taken course," "Man-Woman," "Sex Orgies Illustrated," and as a whole, is to prurient interest, i. e., a shameful or morbid interest "An Illustrated History of Pornography," and a film en- in nudity, sex, or excretion, which goes substantially beyond cus- titled "Marital Intercourse." While the brochures con- tomary limits of candor in description or representation of such tain some descriptive printed material, primarily they matters and is matter which is utterly without redeeming social consist of pictures and drawings very explicitly depicting importance. "(b) 'Matter' means any book, magazine, newspaper, or other men and women in groups of two or more engaging in a printed or written material or any picture, drawing, photograph, variety of sexual activities, with genitals often promi- motion picture, or other pictorial representation or any statue or mently displayed. other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials. This case involves the application of a State's criminal "(c) 'Person' means any individual, partnership, firm, association, obscenity statute to a situation in which sexually explicit corporation, or other legal entity. materials have been thrust by aggressive sales action "(d) Distribute' means to transfer possession of, whether with upon unwilling recipients who had in no way indicated or without consideration. any desire to receive such materials. This Court has rec- "(e) 'Knowingly' means having knowledge that the matter is obscene." ognized that the States have a legitimate interest in pro- Section 311 (e) of the California Penal Code, supra, was amended hibiting dissemination or exhibition of obscene material 2 on June 25, 1969, to read as follows: "(e) 'Knowingly' means being aware of the character of the formance of the postal functions," or infringe on congressional com- matter." merce powers under Art. I, $8, cl. 3. Roth v. United States, 354 Cal. Amended Stats. 1969, c. 249, $1, p. 598. Despite appel- U. S. 476, 494 (1957), quoting Railway Mail Assn. v. Corsi, 326 lant's contentions to the contrary, the record indicates that the U. S. 88, 96 (1945). See also Mishkin v. New York, 383 U. S. 502, new $ 311 (e) was not applied ex post facto to his case, but only 506 (1966); Smith v. California, 361 U. S. 147, 150-152 (1959). the old $ 311 (e) as construed by state decisions prior to the com- 2 This Court has defined "obscene material" as "material which mission of the alleged offense. See People v. Pinkus, 256 Cal. App. deals with sex in a manner appealing to prurient interest," Roth 2d 941, 948-950, 63 Cal. Rptr. 680, 685-686 (App. Dept., Superior v. United States, supra, at 487, but the Roth definition does Ct., Los Angeles, 1967); People v. Campise, 242 Cal. App. 2d 905, 914, not reflect the precise meaning of "obscene" as traditionally 51 Cal. Rptr. 815, 821 (App. Dept., Superior Ct., San Diego, 1966). used in the English language. Derived from the Latin obscaenus, Cf. Bouie v. City of Columbia, 378 U. S. 347 (1964). Nor did $ 311.2, ob, to, plus caenum, filth, "obscene" is defined in the Webster's Third supra, as applied, create any "direct, immediate burden on the per- New International Dictionary (Unabridged 1969) as "la: dis-MILLER 0. CALIFORNIA 39 15 Doucms, J., dissenting A further renement was added by Ginsberg v. New York, 390 U. S. 629, 641, where the Court held that "it was not irrational for the legislature to nd that ex- posure to material condemned by the statute is harmful to minors.\" But even those members of this Court who had created the new and changing standards of \"obscenity\" could not agree on their application. And so we adopted a per cerium treatment of so-oslled obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redmp v. New York, 386 U. S. 767. Some condemn it if its \"dominant tendency might be to 'deprave or corrupt' a reader.\" ' Others look not to the content of the book but to whether it is advertised " 'to appeal to the erotic interests of customers.' \" 3 Some condemn only \"hard core pornography\"; but even then a true denition is lacking. It has indeed been said of that denition, \"I could never succeed in [dening it] intelligibly,\" but \"I know it when I see it.\" 4 Today we would add a new three-pronged test: " (a) whether 'the average person, applying contemporary community standards' would nd that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently o'ensive way, sexual conduct specically dened by the applicable state law, and (c) whether the work, taken as a Whole, lacks serious literary, artistic, political, or scientic value.\" Those are the standards we ourselves have written into the Constitution.. Yet how under these vague tests can \"Roth v. United States, 354 U. S. 476, 502 (opinion of Harlan, J1). ' Ghetto-q v. Urdtcd States, 383 U. B. 463, 467. 4Jacobcltis v. Ohio, 378 U. S. 184, 197 (Smwan'r, J., concluding). 5 At the conclusion of a two-year study, the U. 8. Commission on 40 OCTOBER TERM, 1972 Doucms, J ., dissenting 413 U. S. we sustain convictions for the sale of an article prior to the time when some court has declared it to he obscene? Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new denitions. This e'ort, like the earlier ones, is earnest and well intentioned. The difculty is that we do not deal with constitutional terms, since \"obscenity\" is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from \"the press" which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated \"obscene\" publications di'erently from other types of papers, magazines, and books. So there are no consti- tutional guidelines for deciding what is and what is not \"obscene." The Court is at large because we deal with tastes and standards of literature. What shocks me may Obscenity and Pornography determined that the standards we have written interfere with constitutionally protected materials: \"Societyb attempts to legislate for adults in the area of obscenity have not been moccasin]. Present laws prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely unsatisfactory in their practical application. The Constitution per- mits material to be deemed 'obscene' for adults only if, as a whole, it appeals to the 'prurient' interest of the average person, is 'patently o'ensive' in light of 'community standards,' and lacks 'redeaming social value.' These vague and highly subjective aesthetic, psycho- logical and more! tests do not provide meaningful guidance for law anfomement oicials, juries or courts. As a result, law is incon- sistently and sometimes erroneously applied and the distinctions made by courts between prohibited and permissible materials often appear indeiemiblc. Errors in the application of the law and un- certainty about its scope also cause interference with the com- munication of constitutionally protected materials." Report of the Commission on Obscenity and Pornography 53 (1970). MILLER v. CALIFORNIA 37 38 OCTOBER TERM, 1972 15 DOUGLAS, J., dissenting DOUGLAS, J., dissenting 413 U. S. above, without a showing that the material is "utterly ing social importance." Id., at 484. The presence of a without redeeming social value"; and (c) hold that "prurient interest" was to be determined by "contempo- obscenity is to be determined by applying "contem- rary community standards." Id., at 489. That test, it has porary community standards," see Kois v. Wisconsin, been said, could not be determined by one standard here supra, at 230, and Roth v. United States, supra, at 489, and another standard there, Jacobellis v. Ohio, 378 U. S. not "national standards." The judgment of the Appel- 184, 194, but "on the basis of a national standard." Id., late Department of the Superior Court, Orange County, at 195. My Brother STEWART in Jacobellis commented California, is vacated and the case remanded to that that the difficulty of the Court in giving content to ob- court for further proceedings not inconsistent with the scenity was that it was "faced with the task of trying to First Amendment standards established by this opinion. define what may be indefinable." Id., at 197. See United States v. 12 200-ft. Reels of Film, post, at In Memoirs v. Massachusetts, 383 U. S. 413, 418, the 130 n. 7. Roth test was elaborated to read as follows: "[Three Vacated and remanded. elements must coalesce: it must be established that (a) the dominant theme of the material taken as a MR. JUSTICE DOUGLAS, dissenting. whole appeals to a prurient interest in sex; (b) the ma- terial is patently offensive because it affronts contem- I porary community standards relating to the description or Today we leave open the way for California ' to send representation of sexual matters; and (c) the material is a man to prison for distributing brochures that advertise utterly without redeeming social value." books and a movie under freshly written standards de- In Ginzburg v. United States, 383 U. S. 463, a pub- fining obscenity which until today's decision were never lisher was sent to prison, not for the kind of books and the part of any law. periodicals he sold, but for the manner in which the The Court has worked hard to define obscenity and con- publications were advertised. The "leer of the sensu- cededly has failed. In Roth v. United States, 354 U. S. alist" was said to permeate the advertisements. Id., at 476, it ruled that "[obscene material is material which 468. The Court said, "Where the purveyor's sole empha deals with sex in a manner appealing to prurient interest." sis is on the sexually provocative aspects of his publica- Id., at 487. Obscenity, it was said, was rejected by the tions, that fact may be decisive in the determination of First Amendment because it is "utterly without redeem- obscenity." Id., at 470. As Mr. Justice Black said in dissent, ". . . Ginzburg . . . is now finally and authori- California defines "obscene matter" as "matter, taken as a whole, tatively condemned to serve five years in prison for the predominant appeal of which to the average person, applying distributing printed matter about sex which neither contemporary standards, is to prurient interest, i. e., a shameful or Ginzburg nor anyone else could possibly have known to morbid interest in nudity, sex, or excretion; and is matter which be criminal." Id., at 476. That observation by Mr. taken as a whole goes substantially beyond customary limits of candor Justice Black is underlined by the fact that the Ginzburg in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social im- decision was five to four. portance." Calif. Penal Code $ 311 (a).MILLER v. CALIFORNIA 41 42 OCTOBER TERM, 1972 DOUGLAS, J., dissenting DOUGLAS, J., dissenting 413 U. S. 15 This is an be sustenance for my neighbor. What causes one person duct" while on the property "that the act for which rgument that to boil up in rage over one pamphlet or movie may reflect they now stand convicted was rendered criminal" by the his is essentially only his neurosis, not shared by others. We deal here state statute. Id., at 355. The same requirement of outside of the with a regime of censorship which, if adopted, should be "fair warning" is due here, as much as in Bouie. The latter involved racial discrimination; the present case work of the done by constitutional amendment after full debate by involves rights earnestly urged as being protected by Court. the people. Obscenity cases usually generate tremendous emotional the First Amendment. In any case-certainly when outbursts. They have no business being in the courts. constitutional rights are concerned-we should not allow If a constitutional amendment authorized censorship, men to go to prison or be fined when they had no "fair the censor would probably be an administrative agency. warning" that what they did was criminal conduct. Then criminal prosecutions could follow as, if, and when II publishers defied the censor and sold their literature. Under that regime a publisher would know when he was If a specific book, play, paper, or motion picture has on dangerous ground. Under the present regime- in a civil proceeding been condemned as obscene and re- whether the old standards or the new ones are used-the view of that finding has been completed, and thereafter criminal law becomes a trap. A brand new test would a person publishes, shows, or displays that particular put a publisher behind bars under a new law improvised book or film, then a vague law has been made specific. by the courts after the publication. That was done in There would remain the underlying question whether Ginzburg and has all the evils of an ex post facto law. the First Amendment allows an implied exception in the My contention is that until a civil proceeding has placed case of obscenity. I do not think it does * and my views a tract beyond the pale, no criminal prosecution should " It is said that "obscene" publications can be banned on authority be sustained. For no more vivid illustration of vague of restraints on communications incident to decrees restraining un- and uncertain laws could be designed than those we lawful business monopolies or unlawful restraints of trade, Sugar have fashioned. As Mr. Justice Harlan has said: Institute v. United States, 297 U. S. 553, 597, or communications "The upshot of all this divergence in viewpoint is respecting the sale of spurious or fraudulent securities. Hall v. Geiger-Jones Co., 242 U. S. 539, 549; Caldwell v. Sioux Falls that anyone who undertakes to examine the Court's Stock Yards Co., 242 U. S. 559, 567; Merrick v. Halsey & Co. decisions since Roth which have held particular ma- 242 U. S. 568, 584. The First Amendment answer is that whenever terial obscene or not obscene would find himself in speech and conduct are brigaded-as they are when one shouts utter bewilderment." Interstate Circuit, Inc. v. "Fire" in a crowded theater-speech can be outlawed. Mr. Justice Dallas, 390 U. S. 676, 707. Black, writing for a unanimous Court in Giboney v. Empire Storage Co., 336 U. S. 490, stated that labor unions could be restrained from In Bouie v. City of Columbia, 378 U. S. 347, we upset picketing a firm in support of a secondary boycott which a State had a conviction for remaining on property after being validly outlawed. Mr. Justice Black said: "It rarely has been sug- asked to leave, while the only unlawful act charged by gested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct the statute was entering. We held that the defendants in violation of a valid criminal statute. We reject the contenti