Free Speech
Free Speech
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Miller v. California: The Current Definition of Obscenity

  • 1973 Supreme Court case established new standard for obscenity cases
  • For speech to be banned as obscene, it had to have no "serious literary, artistic, political, or scientific value"
  • Local judges and juries could apply local community standards; the definition of obscenity in Salt Lake City could be different than in New York
  • 1969 case Stanley v. Georgia established individuals' right to possess pornography inside their homes

The new definition held that pornographic works "taken as a whole, appeal to the prurient interest in sex . . . portray sexual conduct in a patently offensive way, and . . . as a whole, do not have serious literary, artistic, political, or scientific value." Among the more important details within this ruling was that the judge and jury could apply local community standards in applying these criteria. Whether a film aimed at a person's prurient instincts and whether sex was portrayed in an offensive way could be answered by applying local norms, not those of some "hypothetical national standard."59 For these reasons, the Miller decision was hugely important. It meant for starters that vendors of pornography had to steer clear of Salt Lake City—but it also suggested that pornography convictions were largely shielded from appellate review. If local juries could apply local standards, appellate courts located in distant cities could not overturn based on distant and different sets of standards.

The Miller case continues to be the guiding decision on pornography—the Court has not developed a different test since 1973. The only case that has hinted that the Court may take a new direction is just as old. In 1969, in Stanley v. Georgia the Court held that individuals have a limited right to possess pornography, except child pornography, in their own homes. Even though limited, this recognition of a right to possess pornography privately was not unimportant, for it implicitly denied the contention made in Roth that all pornography fell outside First Amendment protections. To reach this exception, the Court coupled this limited First Amendment speech protection to privacy protections suggested by other amendments in the Bill of Rights. "For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy."60 But because the ruling rested on the combining of two rights—privacy and expression—it did not extend to the commercial production or distribution of pornography. Despite the ruling in Stanley these remain outside the realm of First Amendment protection.

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