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Miller v. California

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Bloomberg Law

Brief Fact Summary.

Appellant Miller owns an adult oriented business that solicits through mass mailings. Appellant caused five unsolicited brochures to be sent to a restaurant in Newport Beach, California. The manager of the restaurant complained to authorities, who indicted Appellant under a California obscenity statute. Appellant was convicted of a misdemeanor by jury trial, and this conviction was upheld by the Court of Appeals.

Synopsis of Rule of Law.

Sexually obscene material is material that depicts sexual conduct that appeals to the prurient in a patently offensive manner, with no literary, artistic, political, or scientific value. Furthermore the standards by which the “obscene” material is to be judged does not have to be national, but the standards of the state for which the law is in effect is a constitutional application of the law, and are essentially questions of fact to be determined by the jury.


Appellant conducted a mass mailing campaign to advertise the sale of illustrated books that contain adult content. Appellant sent unsolicited advertising brochures to a restaurant in Newport Beach, California. The brochures consisted primarily of explicit pictures, with some printed material. Upon opening the materials received from Appellant, the restaurant manager and his mother complained to the police. Under California Penal Code Section: 311.2(a) it is a misdemeanor to knowingly distribute obscene manner. Appellants were convicted of violating this statute by a trial court, which was affirmed on appeal.


What allows First Amendment protection for material that some may find to be sexually “obscene?”
Were the State’s alleged failure to offer evidence of “national standards,” or the trial court’s charges that the jury consider state community standards amount to constitutional errors?


Patently offensive material is not protected, and No. Judgment affirmed.
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. For example, medical books contain sexual descriptions but it is necessary for divulging scientific information. In order to resolve the inevitably sensitive questions of fact and law, we must continue to rely on the jury system.
The primary concern with requiring a jury to apply the standard of the average person, applying contemporary community standards is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person – or indeed a totally insensitive one.
The requirement made by the trial court that the jury evaluate the materials with reference to contemporary standards of the State of California serves this protective purpose and is constitutionally adequate.


Believes that until a civil proceeding has placed a tract beyond pale, no criminal prosecution should be sustained. There remains the underlying question whether the First Amendment allows an implied exception in the case of obscenity, and the dissent does not believe it does. But a criminal prosecution brought after the civil determination of whether it is protected speech does not violate the void-for-vagueness test.
Believes that the statute under which the prosecution was brought in Paris Adult Theater I was overbroad, and therefore invalid on its face.


This case should be read as a companion to Paris Adult Theater I. This case expands the ruling in that case to provide a concrete definition as to what is not sexually obscene. This case also gives the reader of these two cases an idea of what standard should be used, and the geographic realm by which the standard can be developed. This case states that the regulation is a primarily local, rather than national concern, and the normal local standards, for where the jury is also selected, is the appropriate standard by which to judge the material. Unfortunately, the dissents in this case are not as helpful as they were in Paris Adult Theater I in understanding the disagreements the dissenters have with these carved out exceptions to First and Fourteenth Amendment rights.

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