Miller Test Born: Supreme Court Defines Obscenity

Five Supreme Court justices finally put a definition on something the law had been chasing for decades. In Miller v. California, decided June 21, 1973, Chief Justice Warren Burger established a three-part test for obscenity that remains the standard today: whether the average person applying community standards would find the work appeals to prurient interest, whether the work depicts sexual conduct in a patently offensive way, and whether the work lacks serious literary, artistic, political, or scientific value. The case arose from a mass mailing campaign by Marvin Miller, a California pornography distributor who sent unsolicited brochures advertising adult books and films to random addresses. One landed in the mailbox of a restaurant manager and his mother, who complained to police. Miller was convicted under California’s obscenity statute, and his appeal eventually reached the Supreme Court. Before Miller, the legal standard for obscenity had shifted repeatedly. The 1957 Roth decision established that obscene material lacked First Amendment protection but offered a vague definition. The 1966 Memoirs case added requirements so stringent that prosecution became nearly impossible. The Miller Court deliberately simplified the test and, crucially, replaced a national standard with community standards, allowing local juries to decide what crossed the line in their own communities. The decision drew sharp dissent from Justices Douglas and Brennan, who argued the First Amendment protected all expression and that no workable definition of obscenity was possible. Half a century later, their skepticism looks prescient: the internet has made community standards nearly meaningless when any content is accessible everywhere simultaneously.