Supreme Court Ruling on Obscene Material and the First Amendment, Slides of Law

Download Supreme Court Ruling on Obscene Material and the First Amendment and more Slides Law in PDF only on Docsity! MILLER v. CALIFORNIA Syllabus MILLER v. CALIFORNIA APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE No. 70-73. Argued January 18-19, 1972-Reargued November 7, 1972-Decided June 21,-1973 Appellant was convicted of mailing unsolicited sexually explicit mate- rial in violation of a California statute that approximately in- corporated the obscenity test formulated in Memoirs v. Massachu- setts, 383 U. S. 413, 418 (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, 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. Pp. 23-24. 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, (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 independ- ent appellate review of constitutional claims when necessary. Pp. 24-25. 3. The test of "utterly without redeeming social value" articu- lated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24-25. 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. 30-34. Vacated and remanded. OCTOBER TERM, 1972 Opinion of the Court 413 U. S. BURGER, C. J., delivered the opinion of the Court, in which WHrrE, BLACKmUN, POWELL, and REHNQUIST, JJ., joined. DouGLAs, J., filed a dissenting opinion, post, p. 37. BRENNAN, J., filed a dis- senting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 47. Burton Marks reargued the cause and filed a brief for appellant. Michael R. Capizzi reargued the cause for appellee. With him on the brief was Cecil Hicks.* 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 prob- lem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 704 (1968) (concurring and dissenting). Appellant conducted a mass mailing campaign to ad- vertise the sale of illustrated books, euphemistically called "adult" material. After a jury trial, he was convicted of violating California Penal Code § 311.2 (a), a mis- demeanor, by knowingly distributing obscene matter,1 *Samuel Rosenwein, A. L. Wirin, Fred Okrand, Laurence R. Sperber, Melvin L. Wulf, and Joel M. Gora filed a brief for the American Civil Liberties Union of Southern California et al. as amici curiae urging reversal. 1 At the time of the commission of the alleged offense, which was prior to June 25, 1969, §§ 311.2 (a) and 311 of the California Penal Code read in relevant part: "§ 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 distribu- tion, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to dis- MILLER v. CALIFORNIA 15 Opinion of the Court when the mode of dissemination carries with it a sig- nificant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Geor- gia, 394 U. S. 557, 567 (1969); Ginsberg v. New York, 390 U. S. 629, 637-643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 690; Redrup v. New York, 386 U. S. 767, 769 (1967); Jacobellis v. Ohio, 378 U. S. 184, 195 (1964). See Rabe v. Washington, 405 U. S. 313, 317 (1972) (BURGER, C. J., concurring); United States v. Reidel, 402 U. S. 351, 360-362 (1971) (opinion of MAR- SHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 502 (1952); Breard v. Alexandria, 341 U. S. 622, 644-645 (1951); Kovacs v. Cooper, 336 U. S. 77, 88-89 (1949); Prince v. Massachusetts, 321 U. S. 158, 169-170 (1944). Cf. Butler v. Michigan, 352 U. S. 380, 382-383 (1957); Public Utilities Comm'n v. Pollak, 343 U. S. 451, 464-465 (1952). It is in this context that we are called gusting to the senses .. . b: grossly repugnant to the generally accepted notions of what is appropriate . . . 2: offensive or revolt- ing as countering or violating some ideal or principle." The Oxford English Dictionary (1933 ed.) gives a similar definition, "[o]ffensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome." The material we are discussing in this case is more accurately defined as "pornography" or "pornographic material." "Pornog- raphy" derives from the Greek (porn, harlot, and graphos, writing). The word now means "1: a description of prostitutes or prostitu- tion 2: a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement." Webster's Third New International Dictionary, supra. Pornographic material which is obscene forms a sub-group of all "obscene" expression, but not the whole, at least as the word "ob- scene" is now used in our language. We note, therefore, that the words "obscene material," as used in this case, have a specific judicial meaning which derives from the Roth case, i. e., obscene material "which deals with sex." Roth, supra, at 487. See also ALI Model Penal Code § 251.4 (1) "Obscene Defined." (Official Draft 1962.) OCTOBER TERM, 1972 Opinion of the Court 413 U. S. on to define the standards which must be used to identify obscene material that a State may regulate without in- fringing on the First Amendment as applicable to the States through the Fourteenth Amendment. The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more con- crete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In Roth v. United States, 354 U. S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of "obscene, lewd, lascivious or filthy. . ." materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating: "All ideas having even the slightest redeeming social importance-unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion-have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more im- portant interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.... This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572: "'.. - There are certain well-defined and nar- rowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene . . . . It has been well ob- served that such utterances are no essential part of any exposition of ideas, and are of such slight social MILLER v. CALIFORNIA 15 Opinion of the Court value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.. . .' [Empha- sis by Court in Roth opinion.] "We hold that obscenity is not within the area of constitutionally protected speech or press." 354 U. S., at 484-485 (footnotes omitted). Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plural- ity held that under the Roth definition "as elaborated in subsequent cases, three ele- ments must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts con- temporary community standards relating to the de- scription or representation of sexual matters; and (c) the material is utterly without redeeming social value." Id., at 418. The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by MR. JUSTICE WHITE'S dissent, id., at 460-462, was further underscored when the Memoirs plurality went on to state: "The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be pro- scribed unless it is found to be utterly without re- deeming social value." Id., at 419 (emphasis in original). While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs required OCTOBER TERM, 1972 Opinion of the Court 413 U. S. carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 682-685. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.' A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. 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, Kois v. Wis- consin, supra, at 230, quoting Roth v. United States, supra, at 489; (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. We do not adopt as a constitutional standard the "utterly without redeem- ing social value" test of Memoirs v. Massachusetts, c See, e. g., Oregon Laws 1971, c. 743, Art. 29, §§ 255-262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt. II, pp. 126-129, as examples of state laws directed at depiction of defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as estab- lishing their limits as the extent of state power. We do not hold, as MR. JUSTICE BRENNAN intimates, that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-ft. Reels of Film, post, at 130 n. 7. MILLER v. CALIFORNIA 15 Opinion of the Court 383 U. S., at 419; that concept has never commanded the adherence of more than three Justices at one time.' See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when nec- essary. See Kois v. Wisconsin, supra, at 232; Memoirs v. Massachusetts, supra, at 459-460 (Harlan, J., dis- senting); Jacobellis v. Ohio, 378 U. S., at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 284-285 (1964); Roth v. United States, supra, at 497-498 (Harlan, J., concurring and dissenting). We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can 7 "A quotation from Voltaire in the flyleaf of a book will not con- stitutionally redeem an otherwise obscene publication .... " Kois v. Wisconsin, 408 U. S. 229, 231 (1972). See Memoirs v. Massachusetts, 383 U. S. 413, 461 (1966) (WHITE, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of "social im- portance." See id., at 462 (WHITE, J., dissenting). OCTOBER TERM, 1972 Opinion of the Court 413 U. S. be exhibited or sold without limit in such public places.8 At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 230-232; Roth v. United States, supra, at 487; Thorn- hill v. Alabama, 310 U. S. 88, 101-102 (1940). For ex- ample, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevi- tably sensitive questions of fact and law, we must con- tinue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.9 MR. JUsTIcE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United 8 Although we are not presented here with the problem of reg- ulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O'Brien, 391 U. S. 367, 377 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be "sufficiently justified if ... it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expres- sion; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." See California v. LaRue, 409 U. S. 109, 117-118 (1972). 1 The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U. S., at 492 n. 30, "it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U. S. 486, 499-500." MILLER v. CALIFORNIA 15 Opinion of the Court Theatre I v. Slaton, 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 obscene until at least five 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 first 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 Redrup 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 difficulty. But no amount of "fatigue" should lead us to adopt a convenient "institutional" rationale-an absolutist, "anything goes" view of the First Amendment-because it will lighten our burdens.11 "Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 187-188 (opinion of BizEN- 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, a power which they have enjoyed and exercised contin- uously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 482- 485. "Our duty admits of no 'substitute for facing up " We must note, in addition, that any assumption concerning the relative burdens of the past and the probable burden under the standards now adopted is pure speculation. OCTOBER TERM, 1972 Opinion of the Court 413 U. S. to the tough individual problems of constitutional judg- ment involved in every obscenity case.' [Roth v. United States, supra, at 498]; see Manual Enterprises, Inc. v. Day, 370 U. S. 478, 488 (opinion of Harlan, J.) [footnote omitted]." Jacobellis v. Ohio, supra, at 188 (opinion of BRENNAN, J.). 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, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "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 prerequisite 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 factfinders 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 standard" 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 Memoirs. 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 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 affronts 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 12 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 first 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- '12 The record simply does not support appellant's contention, be- latedly raised on appeal, that the State's expert was unqualified to give evidence on California "community standards." The expert, a police officer with many years of specialization in obscenity offenses, 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. Augenblick, 393 U. S. 348, 356 (1969). OCTOBER TERM, 1972 Opinion of the Court 413 U. S. standards of the State of California" serves this pro- tective purpose and is constitutionally adequate." IV The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the his- toric struggle for freedom. It is a "misuse of the great guarantees of free speech and free press .... ." Breard v. Alexandria, 341 U. S., at 645. The First Amend- ment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, re- gardless of whether the government or a majority of the people approve of the ideas these works represent. "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of 14 Appellant's jurisdictional statement contends that he was sub- jected to "double jeopardy" because a Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same bro- chures, but apparently alleging exposures at a different time in a different setting. Appellant argues that once material has been found not to be obscene in one proceeding, the State is "collaterally estopped" from ever alleging it to be obscene in a different pro- ceeding. It is not clear from the record that appellant properly raised this issue, better regarded as a question of procedural due process than a "double jeopardy" claim, in the state courts below. Appellant failed to address any portion of his brief on the merits to this issue, and appellee contends that the question was waived under California law because it was improperly pleaded at trial. Nor is it totally clear from the record before us what collateral effect the pretrial dismissal might have under state law. The dismissal was based, at least in part, on a failure of the prosecution to present affirmative evidence required by state law, evidence which was ap- parently presented in this case. Appellant's contention, therefore, is best left to the California courts for further consideration on re- mand. The issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383 U. S. 502, 512-514 (1966). MILLER v. CALIFORNIA 15 Opinion of the Court political and social changes desired by the people," Roth v. United States, supra, at 484 (emphasis added). See Kois v. Wisconsin, 408 U. S., at 230-232; Thornhill v. Alabama, 310 U. S., at 101-102. But the public por- trayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter. 5 There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth v. United States, supra, at 482-485, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an "extraordinarily vigorous period," not just in economics and politics, but in belles lettres and in "the outlying fields of social and political philosophies." " We do not see the harsh hand 15 In the apt words of Mr. Chief Justice Warren, appellant in this case was "plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide." Roth v. United States, supra, at 496 (concurring opinion). 16See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th century, Parring- ton observed "A new age had come and other dreams-the age and the dreams of a middle-class sovereignty . . . . From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of realistic criticism, seeking to evaluate the worth of this new America, and discover if possible other philosophies to take the place of those which had gone down in the fierce battles of the Civil War." Id., at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic 197-233 (6th ed. 1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White ed. 1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and Thought in Modern America 337-386 (1952). OCTOBER TERM, 1972 Opinion of the Court 413 U. S. of censorship of ideas-good or bad, sound or unsound- and "repression" of political liberty lurking in every state regulation of commercial exploitation of human interest in sex. MR. JUSTIcE BRENNAN finds "it is hard to see how state-ordered regimentation of our minds can ever be forestalled." Paris Adult Theatre I v. Slaton, post, at 110 (BRENNAN, J., dissenting). These doleful anticipa- tions assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commer- cial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which MR. Jus- TICE BRENNAN finds constitutionally permissible, has all the elements of "censorship" for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U. S., at 690.17 One can concede that the "sexual revolution" of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ven- tilation. But it does not follow that no regulation of patently offensive "hard core" materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphine. In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated 17 "[W]e have indicated . . . that because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg v. New York, . . .[390 U. S. 629 (1968)]." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 690 (1968) (footnote omitted). MILLER v. CALIFORNIA 15 DouGLAs, J., dissenting A further refinement 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 find 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 curiam treatment of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York, 386 U. S. 767. Some condemn it if its "dominant tendency might be to 'deprave or corrupt' a reader." 2 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 definition is lacking. It has indeed been said of that definition, "I could never succeed in [defining 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 find that the work, taken as a whole, appeals to the prurient interest,... (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." Those are the standards we ourselves have written into the Constitution.5 Yet how under these vague tests can 2 Roth v. United States, 354 U. S. 476, 502 (opinion of Harlan, J.). 3 Ginzburg v. United States, 383 U. S. 463, 467. 4 Jacobe~lis v. Ohio, 378 U. S. 184, 197 (STEWART, J., concurring).5 At the conclusion of a two-year study, the U. S. Commission on OCTOBER TERM, 1972 DouGLAs, 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 be obscene? Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty 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 differently 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: "Society's attempts to legislate for adults in the area of obscenity have not been successful. 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 offensive' in light of 'community standards,' and lacks 'redeeming social value.' These vague and highly subjective aesthetic, psycho- logical and moral tests do not provide meaningful guidance for law enforcement officials, 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 indefensible. 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 15 DOUGLAS, J., dissenting be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people. Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime a publisher would know when he was on dangerous ground. Under the present regime- whether the old standards or the new ones are used-the criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg and has all the evils of an ex post facto law. My contention is that until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said: "The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular ma- terial obscene or not obscene would find himself in utter bewilderment." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 707. In Bouie v. City of Columbia, 378 U. S. 347, we upset a conviction for remaining on property after being asked to leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received no "fair warning, at the time of their con- OCTOBER TERM, 1972 DouGLAs, J., dissenting 413 U. S. men to jail for violating standards they cannot under- stand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process. III While the right to know is the corollary of the right to speak or publish, no one can be forced by gov- ernment to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Comm'n v. Pollak, 343 U. S. 451, 467, where I pro- tested against making streetcar passengers a "captive" audience. There is no "captive audience" problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amend- ment, applicable to the States by virtue of the Four- teenth, raises a ban. The idea that the First Amendment permits gov- ernment to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to in- vite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger." Terminiello v. Chicago, 337 U. S. 1, 4. The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for MILLER v. CALIFORNIA 15 DOuGLAS, J., dissenting dispensing tranquilizers to the people. Its prime func- tion was to keep debate open to "offensive" 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 "offensive" gives authority to government that cuts the very vitals out of the First Amendment.9 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 Amendment-and solely because of it- speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offen- sive" to some. The standard "offensive" is unconstitutional in yet another way. In Coates 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 9 Obscenity law has had a capricious history: "The white slave traffic was first exposed by W. T. Stead in a maga- zine article, 'The Maiden Tribute.' The English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing about an indecent subject. When the law supplies no definite standard of criminality, a judge in deciding what is indecent or profane may consciously disregard the sound test of present 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 often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley's Queen Mab and the decorous 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). OCTOBER TERM, 1972 DouGLAs, 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 officer 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 unascertainable 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 specified 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 difficult 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 define 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 definitions of obscenity. If it is to be defined, 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