The history of the legal test that decides what porn you get to see
And how the internet is eroding its authority
In 1971, enterprising porn distributor Marvin Miller sent out a batch of mailers that were, to use today’s preferred term, “lewd.” They advertised three books and a movie he had for sale, innocently titled by today’s standards: Intercourse, Man-Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography. When a restaurant owner in Newport Beach, California opened the mailers in front of his mother, the embarrassed pair called the police. Miller was arrested and charged him with violating a California law prohibiting the distribution of obscene materials.
By the next year, the case had gone all the way to the Supreme Court as Miller v. California, with the defendant arguing that his mailers should be protected under the First Amendment as free speech. He was in luck — the Court was looking for an opportunity to settle an internal disagreement.
The California law under which Miller had been prosecuted was based on previous Supreme Court cases, which ruled that obscenity was not protected by the First Amendment and sought to define it. In the early ’70s, though, the court hosted wildly differing opinions on the matter. On one end of the spectrum was Justice Warren Burger, who wanted a looser definition of obscenity so that states could feel freer to prosecute violators. On the other was Justice William J. Brennan Jr., who wanted to do away with all prosecution for obscenity, except in cases of exposure to minors and unconsenting adults. Justice Potter Stewart’s famously malleable definition of hardcore pornography from a 1964 decision — “I know it when I see it” — certainly didn’t clarify the matter.
The mood of the nation in the mid-1970s was equally split. While many Americans were pushing the envelope, the rest were desperately trying to stuff that envelope back in a drawer. The sexual revolution was underway, and the pornography industry was entering what would eventually be remembered as its Golden Age (Deep Throat came out in 1972). Meanwhile, the American people had elected the socially conservative Richard Nixon president. Nixon had campaigned against “permissiveness,” an all-purpose derogatory word for phenomena like “unkempt youth, turning to drugs and staging campus rebellions; criminals turned loose by lenient courts to make the streets unsafe; above all, a failure to halt the spread of sexually explicit movies.”
By the time Miller got to the Supreme Court, the Court had been Nixonized. The President had appointed four conservative judges: Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. A Kennedy appointee, Byron White, tended to vote conservative. The Miller case — a referendum on what constituted obscenity, and who was allowed to show it to whom — was sure to be a close call.
In the end, Miller lost his appeal in a 5–4 split. But the most important result of the case was not the verdict; it was the majority’s decision, which laid out a (somewhat) clearer definition of unprotected obscenity than ever before. When deciding whether material was obscene and could therefore be subject to state regulation, the Court said a state had to consider:
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.
In other words, obscenity is unprotected speech if the average person thinks it’s licentious, if it shows or describes sex, and if it’s otherwise worthless.
Four justices dissented. Justice Douglas felt it was unfair to prosecute Miller under a test that was devised after he sent the mailers, writing, “How under these vague tests can we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?” Justice Brennan opposed the whole concept of prosecuting obscenity in such cases, writing, “The statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face.”
Overall, however, the Court was satisfied with the new guidelines—which became known as the Miller test. But states were mystified. How do you define “community standards” when, for instance, Times Square (then Manhattan’s adult theater hub) and the headquarters of the New York Roman Catholic Archdiocese are a mile and a half apart? Also, “patently offensive” to whom? And what criteria will states use to determine if material depicting sex has cultural value — a question nearly as old as Western philosophy itself?
The Pulitzer Prize-winning satirical cartoonist Jules Feiffer summed up the counterculture’s view of the Court’s decision in the New York Times, writing, “The sexual revolution has undergone whiplash. Under the leadership of the Reverend Burger, we returned to hallowed ground: sex as a foreign object, not to get close to, not to be trusted, deep threat.”
The anti-pornography movement was emboldened by the Miller decision, and used it throughout the 1970s to pressure states into closing adult movie theaters, prosecuting porn distributors, and criminalizing various depictions of “perversion” in popular culture. Ronald Reagan took the movement mainstream in the eighties, establishing a White House Working Group on Pornography and advocating for tighter enforcement of anti-porn laws.
In the ’80s and early ’90s, it seemed to many that the progress toward sexual freedom made in the ’60s had been completely undone. Then along came the internet — where the Miller test meets its match. How do you apply “community standards” when the entire world is theoretically able to access any given porn site? When faced with the limitless world wide web, a huge percentage of which is explicit porn, the Miller test becomes… impotent.
Anti-porn crusaders are now pushing for an updated version of the Miller test that might apply to cyberspace. And dozens of high-profile Republican politicians have joined them — including, ironically, Donald Trump, who might want to think twice before he endorses criminalizing obscene speech.
