Miller Turns 33

Alex Henderson
June will mark the 33rd anniversary of the U.S. Supreme Court's historic decision in the case of Miller vs. California. Handed down on June 21, 1973, the Miller decision established what is known as the Miller test for obscenity — a three-part test that has been applied in countless obscenity cases since then. And that test would not have come about had it not been for a California man named Marvin Miller, who operated a mail-order business and was convicted of obscenity under California law after mailing brochures for one adult film and four adult books.

Miller appealed his conviction, and when Miller vs. California went all the way to the Supreme Court, the question was: could the distribution of erotic material be subject to state regulation as a criminal offense? Upholding Marvin Miller's conviction, the high court ruled that yes, California and other states could prosecute someone for distributing obscene material and that obscenity was not protected by the 1st Amendment.

But what is obscenity? According to the Supreme Court's 5-4 ruling under the late Chief Justice Warren Burger, material is obscene if it: (1) appeals to a prurient interest when contemporary community standards are applied, (2) is patently offensive, and (3) lacks serious literary, artistic, political or scientific value when taken as a whole (the so-called SLAPS test). Unless a prosecutor can show a jury that adult material meets all three of those criteria for obscenity, the jury must vote "not guilty."

In 2006, the Miller test remains controversial. Some adult entertainment providers consider the test overly vague; they never really know what types of sexually explicit material will or won't result in obscenity charges — and on the other hand, some anti-erotica crusaders on the Christian Right believe that the Miller test has been much too protective of adult entertainment.

XBiz contacted several major allies of the adult industry, including National Coalition for Sexual Freedom President Susan Wright and 1st Amendment attorneys Paul Cambria, Lawrence Walters, Gregory Piccionelli and Reed Lee, to discuss the past, present and future of the Miller test. Will the Supreme Court ever re-evaluate the Miller decision, and will the Miller test continue to be the basis for American obscenity law? Opinions varied, and some interviewees were more pro-Miller than others.

Cambria, who serves as general counsel for the Adult Freedom Foundation, has strong reservations about the validity of the Miller test in 2006, especially after the Supreme Court's decision in the Lawrence vs. Texas case in 2003.

"I don't think that Miller should exist," Cambria told XBiz. "I agree with the Lawrence vs. Texas theory that the acquisition of adult materials should be included with an adult's right to privacy and that Miller is clearly an outdated doctrine, particularly in light of Lawrence vs. Texas. It makes no sense that you have a right of privacy to consume, as an adult, erotic material, but you can't get it — that doesn't make sense. The government should not be in the business of legislating morality; that's what Lawrence vs. Texas said, as far as I'm concerned."

The Internet, Cambria asserted, makes the community standards element of the Miller test antiquated. "Clearly, Miller does not apply to so-called obscenity on the Internet because Miller is tied to this local community concept, and the Internet is anything but a local community," Cambria stressed. "It would be a disaster if the Supreme Court ever attempted to tie the Internet to any local community."

Piccionelli, of the Los Angeles-based firm Piccionelli & Sarno, shares Cambria's belief that the Internet makes the community standards part of the Miller test problematic. Asked whether he thought Miller had done more to help or harm the adult industry over the years, Piccionelli replied: "I think that it has done more good, until recently. The 'until recently' makes reference to the Internet. Because of the Internet, the question becomes: 'What is the validity of a community standards test anymore?' Should we be looking at the Internet as one large community? I think that what we may find is that the Internet is the undoing of obscenity laws in general. Even if you could perfectly enforce U.S. obscenity laws, the fact is that year by year, month by month, a greater portion of the erotic material that is available on the Internet is coming from outside the jurisdiction of the U.S."

Piccionelli has definite ideas about where the governing of adult entertainment needs to go in the future in the U.S. There needs to be an emphasis on making sure that adult-oriented erotica is kept away from kids, but there also needs to be less harassment of consensual sexual activity among adults, he believes.

"If there are willing adults in adult material, willing adults distributing the material and willing adults wishing to obtain the material, I just don't see what business government has prosecuting that material for obscenity," he said.

Susan Wright of the BDSM-oriented NCSF favors abolishing the Miller test, which she says offers little protection for non-vanilla sexuality. Wright acknowledges that savvy attorneys have successfully used elements of Miller to defend vanilla erotica, but she asserts that as long as kinkier adult entertainment is in danger of obscenity charges, American adults don't have true sexual freedom.

"The Miller test discriminates against anything that is outside the mainstream of adult sexuality, like sadomasochism and swinging," Wright told XBiz. "What that does is say that the less common types of sexual expression are not OK, and that is unconstitutional. The 1st Amendment allows you to make speech that other people don't understand and don't agree with. Even if 90 percent of a community doesn't agree with alternative sexuality, the other ten percent have a constitutional right to that type of expression. If the Supreme Court continues to uphold Miller, NCSF will continue to fight it, and I think that eventually, Americans are going to look back on Miller and say: 'How absurd was that? We were told that we couldn't look at sexuality because it might offend some people.'"

Chicago-based Reed Lee recalls that when the Miller decision was handed down 33 years ago, some erotica providers feared that Miller's "lacks serious value" element would be more prosecutor-friendly than the "utterly lacking in value" element of the Supreme Court's Roth/Memoirs test of the 1960s (which combined elements of the Roth vs. United States and Memoirs vs. Massachusetts cases). But Lee asserts that the "contemporary community standards" part of Miller has become increasingly beneficial for the adult industry because community standards are much more tolerant of erotica in 2006 than they were in 1973.

Miller Embraces Adult
"Compared to the Roth/Memoirs test, Miller was intended to be a step backwards for the adult industry," Lee noted. "The Supreme Court under Warren Burger thought it was making it easier for prosecutors to get obscenity convictions. But the Miller test remains tied to contemporary community standards, and those standards have marched on. When obscenity cases are properly defended, the Miller test can be a formidable obstacle for the government because the government has to prevail not just on one prong but on all three. I think the Miller standards are, in fact, quite speech-protective when they're properly understood and properly applied."

Lawrence Walters, of the law firm Weston, Garrou & DeWitt, believes that the Miller test has been both a burden and a blessing for the adult industry — a burden because adult businesses have had difficulty comprehending it and a blessing because prosecutors have also had difficulty comprehending it. Walters told XBiz: "I share the industry's frustration with the Miller test and believe that a number of aspects of it are unworkable and probably unconstitutional despite the fact that it has been upheld over and over again. If we're going to be true to the Constitution, it's clearly unconstitutional to put somebody in jail for engaging in expressive speech that some jury somewhere in the country thinks is obscene based on some local standards that are inherently unknowable and vary from community to community. I believe it is unconstitutional to prosecute someone without telling them ahead of time whether a movie, magazine or book is illegal or not; that's not how we do business in the U.S. We tell people what is legal and illegal, and if they violate the law, we put them in jail after due process."

But Walters is quick to add that he is in no hurry to see the Supreme Court reevaluate or alter Miller because he fears that the more socially conservative justices could push for something that would make obscenity convictions much easier.

"I've always been concerned that if the Supreme Court reevaluates the Miller test, it could replace that test with something that is nice and crystal clear, like no penetration," Walters said. "A lot of adult businesses have essentially ducked law enforcement investigations because of the difficulties in applying the Miller test and understanding it; they have been allowed to continue operating because prosecutors didn't want to deal with the complexity of Miller and the difficulty of understanding it. So the Miller test has been the adult industry's greatest friend in addition to being its most hated enemy."

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