U.S. Supreme Court
MILLER v. CALIFORNIA, 413 U.S. 15 (1973)
413 U.S. 15
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 material in violation of a
California statute that approximately incorporated the obscenity test formulated in Memoirs v.
Massachusetts, 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 independent appellate review of constitutional claims when
necessary. Pp. 24-25.
3. The test of "utterly without redeeming social value" articulated 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. [413 U.S. 15, 16]
BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL,
and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 37. BRENNAN,
J., filed a dissenting 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. *
[ Footnote * ] 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.
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 reexamination
of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the
intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968)
(concurring and dissenting).
Appellant conducted a mass mailing campaign to advertise 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 misdemeanor, by knowingly distributing obscene matter, 1 [413 U.S. 15, 17]
and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed
the judgment without opinion. Appellant's conviction was specifically [413 U.S. 15, 18] based on his
conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope
addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager
of the restaurant and his mother. They had not requested the brochures; they complained to the
police.
The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated,"
and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the
brochures contain some descriptive printed material, primarily they consist of pictures and drawings
very explicitly depicting men and women in groups of two or more engaging in a variety of sexual
activities, with genitals often prominently displayed.
I
This case involves the application of a State's criminal obscenity statute to a situation in which
sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients
who had in no way indicated any desire to receive such materials. This Court has recognized that
the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material 2
[413 U.S. 15, 19] when the mode of dissemination carries with it a significant danger of offending
the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 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 MARSHALL, 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 [413 U.S. 15, 20] on to
define the standards which must be used to identify obscene material that a State may regulate
without infringing on the First Amendment as applicable to the States through the Fourteenth
Amendment.
The dissent of MR. JUSTICE BRENNAN review the background of the obscenity problem, but
since the Court now undertakes to formulate standards more concrete 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 important 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 narrowly 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 observed that such utterances are
no essential part of any exposition of ideas, and are of such slight social [413 U.S. 15, 21]
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. . . .' [Emphasis 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 plurality held that under the Roth definition.
"as elaborated in subsequent cases, three elements 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 contemporary community standards
relating to the description 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 proscribed unless it is found
to be utterly without redeeming social value." Id., at 419 (emphasis in original).
While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs
required [413 U.S. 15, 22] that to prove obscenity it must be affirmatively established that the
material is "utterly without redeeming social value." Thus, even as they repeated the words of Roth,
the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a
negative, i. e., that the material was "utterly without redeeming social value" - a burden virtually
impossible to discharge under our criminal standards of proof. Such considerations caused Mr.
Justice Harlan to wonder if the "utterly without redeeming social value" test had any meaning at all.
See Memoirs v. Massachusetts, id., at 459 (Harlan, J., dissenting). See also id., at 461 (WHITE, J.,
dissenting); United States v. Groner, 479 F.2d 577, 579-581 (CA5 1973).
Apart from the initial formulation in the Roth case, no majority of the Court has at any given time
been able to agree on a standard to determine what constitutes obscene, pornographic material
subject to regulation under the States' police power. See, e. g., Redrup v. New York, 386 U.S., at
770 -771. We have seen "a variety of views among the members of the Court unmatched in any
other course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S., at 704 -705
(Harlan, J., concurring and dissenting) (footnote omitted). 3 This is not remarkable, for in the area
[413 U.S. 15, 23] of freedom of speech and press the courts must always remain sensitive to any
infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area
in which there are few eternal verities.
The case we now review was tried on the theory that the California Penal Code 311 approximately
incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as
unworkable by its author, 4 and no Member of the Court today supports the Memoirs formulation.
II
This much has been categorically settled by the Court, that obscene material is unprotected by the
First Amendment. Kois v. Wisconsin, 408 U.S. 229 (1972); United States v. Reidel, 402 U.S., at 354
; Roth v. United States, supra, at 485. 5 "The First and Fourteenth Amendments have never been
treated as absolutes [footnote omitted]." Breard v. Alexandria, 341 U.S., at 642 , and cases cited.
See Times Film Corp. v. Chicago, 365 U.S. 43, 47 -50 (1961); Joseph Burstyn, Inc. v. Wilson, 343
U.S., at 502 . We acknowledge, however, the inherent dangers of undertaking to regulate any form
of expression. State statutes designed to regulate obscene materials must be [413 U.S. 15, 24]
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. 6 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. Wisconsin, 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 redeeming social value" test of Memoirs v. Massachusetts, [413 U.S. 15, 25] 383
U.S., at 419 ; that concept has never commanded the adherence of more than three Justices at one
time. 7 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 necessary. See Kois v. Wisconsin, supra, at 232; Memoirs v.
Massachusetts, supra, at 459-460 (Harlan, J., dissenting); 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 [413 U.S. 15, 26] 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; Thornhill v. Alabama, 310 U.S. 88, 101 -102 (1940). For example, medical books for
the education of physicians and related personnel necessarily use graphic illustrations and
descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we
must continue 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 [413 U.S. 15, 27] States, 383 U.S.
463 (1966), Mishkin v. New York, 383 U.S. 502 (1966); and Memoirs v. Massachusetts, supra, has
abandoned his former position and now maintains that no formulation of this Court, the Congress,
or the States can adequately distinguish obscene material unprotected by the First Amendment from
protected expression, Paris Adult Theatre I v. Slaton, post, p. 73 (BRENNAN, J., dissenting).
Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of unprotected obscene
material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles,
although he gives no indication of how the division between protected and nonprotected materials
may be drawn with greater precision for these purposes than for regulation of commercial exposure
to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to
distinguish between a willing "adult" one month past the state law age of majority and a willing
"juvenile" one month younger.
Under the holdings announced today, no one will be subject to prosecution for the sale or exposure
of obscene materials unless these materials depict or describe patently offensive "hard core" sexual
conduct specifically defined by the regulating state law, as written or construed. We are satisfied
that these specific prerequisites will provide fair notice to a dealer in such materials that his public
and commercial activities may bring prosecution. See Roth v. United States, supra, at 491-492. Cf.
Ginsberg v. New York, 390 U.S., at 643 . 10 If [413 U.S. 15, 28] the inability to define regulated
materials with ultimate, god-like precision altogether removes the power of the States or the
Congress to regulate, then "hard core" pornography may be exposed without limit to the juvenile,
the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to
MR. JUSTICE DOUGLAS' position, see United States v. Thirty-seven Photographs, 402 U.S. 363,
379 -380 (1971) (Black, J., joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra,
at 476, 491-492 (Black, J., and DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 196 (Black,
J., joined by DOUGLAS, J., concurring); Roth, supra, at 508-514 (DOUGLAS, J., dissenting). In
this belief, however, MR. JUSTICE DOUGLAS now stands alone.
MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of
view. Noting that "[t]he number of obscenity cases on our docket gives ample testimony to the
burden that has been placed upon this Court," he quite rightly remarks that the examination of
contested materials "is hardly a source of edification to the members of this Court." Paris Adult [413
U.S. 15, 29] 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 BRENNAN, 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 continuously 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 [413 U.S. 15, 30] to the tough individual problems of
constitutional judgment 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 reasonably 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 certain materials "prurient," it would be unrealistic to require 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 [413 U.S. 15, 31] 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 substantially 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 defense 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. Defense counsel at trial
never objected to the testimony of the State's expert on community standards 12 or to the
instructions 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 Amendment requires that a jury must consider hypothetical and unascertainable
"national standards" when attempting to determine whether certain materials are obscene as a
matter [413 U.S. 15, 32] of fact. Mr. Chief Justice Warren pointedly commented in his dissent in
Jacobellis v. Ohio, supra, at 200:
"It is my belief that when the Court said in Roth that obscenity is to be defined by reference
to `community standards,' it meant community standards - not a national standard, as is
sometimes argued. I believe that there is no provable `national standard' . . . . At all events,
this Court has not been able to enunciate one, and it would be unreasonable to expect local
courts to divine one."
It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the
people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or
New York City. 13 [413 U.S. 15, 33] See Hoyt v. Minnesota, 399 U.S. 524 -525 (1970)
(BLACKMUN, J., dissenting); Walker v. Ohio, 398 U.S. 434 (1970) (BURGER, C. J., dissenting);
id., at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U.S. 319 (1970) (BURGER, C. J.,
dissenting); id., at 319-320 (Harlan, J., dissenting); United States v. Groner, 479 F.2d, at 581-583;
O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame
Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S., at 458 (Harlan, J., dissenting);
Jacobellis v. Ohio, supra, at 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 505-
506 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and
attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the
Court made clear in Mishkin v. New York, 383 U.S., at 508 -509, 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. See Roth v. United States, supra, at 489. Cf. the now discredited
test in Regina v. Hicklin, 1868. L. R. 3 Q. B. 360. We hold that the requirement that the jury
evaluate the materials with reference to "contemporary [413 U.S. 15, 34] standards of the State of
California" serves this protective purpose and is constitutionally adequate. 14
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 historic 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 Amendment protects works which, taken as a whole, have
serious literary, artistic, political, or scientific value, regardless 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 [413 U.S. 15,
35] 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 portrayal of hard-core sexual conduct for its own sake, and for the ensuing
commercial gain, is a different matter. 15
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." 16 We do not
see the harsh hand [413 U.S. 15, 36] 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 anticipations assume that courts cannot distinguish commerce in ideas, protected by
the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation
of hard-core pornography so as to make it unavailable to nonadults, a regulation which MR.
JUSTICE 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 ventilation. 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 [413 U.S. 15, 37] above, without a showing that the material is "utterly without
redeeming social value"; and (c) hold that obscenity is to be determined by applying "contemporary
community standards," see Kois v. Wisconsin, supra, at 230, and Roth v. United States, supra, at
489, not "national standards." The judgment of the Appellate Department of the Superior Court,
Orange County, California, is vacated and the case remanded to that court for further proceedings
not inconsistent with the First Amendment standards established by this opinion. See United States
v. 12 200-ft. Reels of Film, post, at 130 n. 7.
Vacated and remanded.
Footnotes
[ Footnote 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 distribution, or in this state prepares, publishes, prints, exhibits,
distributes, or offers to distribute, or has in his possession with intent to distribute [413 U.S. 15, 17] or
to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . ." " 311.
Definitions "As used in this chapter: "(a) `Obscene' means that to the average person, applying
contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient
interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially
beyond customary limits of candor in description or representation of such matters and is matter
which is utterly without redeeming social importance. "(b) `Matter' means any book, magazine,
newspaper, or other printed or written material or any picture, drawing, photograph, motion picture,
or other pictorial representation or any statute or other figure, or any recording, transcription or
mechanical, chemical or electrical reproduction or any other articles, equipment, machines or
materials. "(c) `Person' means any individual, partnership, firm, association, corporation, or other
legal entity. "(d) `Distribute' means to transfer possession of, whether with or without consideration.
"(e) `Knowingly' means having knowledge that the matter is obscene." Section 311 (e) of the
California Penal Code, supra, was amended on June 25, 1969, to read as follows: "(e) `Knowingly'
means being aware of the character of the matter." Cal. Amended Stats. 1969, c. 249, 1, p. 598.
Despite appellant's contentions to the contrary, the record indicates that the new 311 (e) was not
applied ex post facto to his case, but only the old 311 (e) as construed by state decisions prior to the
commission of the alleged offense. See People v. Pinkus, 256 Cal. App. 2d 941, 948-950, 63 Cal.
Rptr. 680, 685-686 (App. Dept., Superior Ct., Los Angeles, 1967); People v. Campise, 242 Cal.
App. 2d 905, 914, 51 Cal. Rptr. 815, 821 (App. Dept., Superior Ct., San Diego, 1966). Cf. Bouie v.
City of Columbia, 378 U.S. 347 (1964). Nor did 311.2, supra, as applied, create any "direct,
immediate burden on the performance [413 U.S. 15, 18] of the postal functions," or infringe on
congressional commerce powers under Art. I, 8, cl. 3. Roth v. United States, 354 U.S. 476, 494
(1957), quoting Railway Mail Assn. v. Corsi, 326 U.S. 88, 96 (1945). See also Mishkin v. New
York, 383 U.S. 502, 506 (1966); Smith v. California, 361 U.S. 147, 150 -152 (1959).
[ Footnote 2 ] This Court has defined "obscene material" as "material which deals with sex in a
manner appealing to prurient interest," Roth v. United States, supra, at 487, but the Roth definition
does not reflect the precise meaning of "obscene" as traditionally used in the English language.
Derived from the Latin obscaenus, ob, to, plus caenum, filth, "obscene" is defined in the Webster's
Third New International Dictionary (Unabridged 1969) as "1a: disgusting [413 U.S. 15, 19] to the
senses . . . b: grossly repugnant to the generally accepted notions of what is appropriate . . . 2:
offensive or revolting 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." "Pornography"
derives from the Greek (porne, harlot, and graphos, writing). The word now means "1: a description
of prostitutes or prostitution 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 "obscene" 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 (l) "Obscene Defined." (Official Draft
1962.)
[ Footnote 3 ] In the absence of a majority view, this Court was compelled to embark on the practice
of summarily reversing convictions for the dissemination of materials that at least five members of
the Court, applying their separate tests, found to be protected by the First Amendment. Redrup v.
New York, 386 U.S. 767 (1967). Thirty-one cases have been decided in this manner. Beyond the
necessity of circumstances, however, no justification has ever been offered in support of the Redrup
"policy." See Walker v. Ohio, 398 U.S. 434 -435 (1970) (dissenting opinions of BURGER, C. J.,
and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable board of
censorship for the 50 States, subjectively judging each piece of material brought before us.
[ Footnote 4 ] See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v.
Slaton, post, p. 73.
[ Footnote 5 ] As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U.S. 184,
200 (1964): "For all the sound and fury that the Roth test has generated, it has not been proved
unsound, and I believe that we should try to live with it - at least until a more satisfactory definition
is evolved. No government - be it federal, state, or local - should be forced to choose between
repressing all material, including that within the realm of decency, and allowing unrestrained
license to publish any material, no matter how vile. There must be a rule of reason in this as in other
areas of the law, and we have attempted in the Roth case to provide such a rule."
[ Footnote 6 ] 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
establishing 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.
[ Footnote 7 ] "A quotation from Voltaire in the flyleaf of a book will not constitutionally 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 importance." See id., at 462 (WHITE, J., dissenting).
[ Footnote 8 ] Although we are not presented here with the problem of regulating 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 expression; 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).
[ Footnote 9 ] 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."
[ Footnote 10 ] As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States, supra,
at 491-492: "Many decisions have recognized that these terms of obscenity statutes are not precise.
[Footnote omitted.] This Court, however, has consistently held that lack of precision is not itself
offensive to the requirements of due process. `. . . [T]he Constitution does not require impossible
standards'; all that is required is that the [413 U.S. 15, 28] language `conveys sufficiently definite
warning as to the proscribed conduct when measured by common understanding and practices. . . .'
United States v. Petrillo, 332 U.S. 1, 7 -8. These words, applied according to the proper standard for
judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark `. .
. boundaries sufficiently distinct for judges and juries fairly to administer the law . . . . That there
may be marginal cases in which it is difficult to determine the side of the line on which a particular
fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal
offense. . . .' Id., at 7. See also United States v. Harriss, 347 U.S. 612, 624 , n. 15; Boyce Motor
Lines, Inc. v. United States, 342 U.S. 337, 340 ; United States v. Ragen, 314 U.S. 513, 523 -524;
United States v. Wurzbach, 280 U.S. 396 ; Hygrade Provision Co. v. Sherman, 266 U.S. 497 ; Fox v.
Washington, 236 U.S. 273 ; Nash v. United States, 229 U.S. 373 ."
[ Footnote 11 ] 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.
[ Footnote 12 ] The record simply does not support appellant's contention, belatedly 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).
[ Footnote 13 ] In Jacobellis v. Ohio, 378 U.S. 184 (1964), two Justices argued that application of
"local" community standards would run the risk of preventing dissemination of materials in some
places because sellers would be unwilling to risk criminal conviction by testing variations in
standards from place to place. Id., at 193-195 (opinion of BRENNAN, J., joined by Goldberg, J.).
The use of "national" standards, however, necessarily implies that materials found tolerable in some
places, but not under the "national" criteria, will nevertheless be unavailable where they are
acceptable. Thus, in terms of danger to free expression, the potential for suppression seems at least
as great in the application of a single nationwide standard as in allowing distribution in accordance
with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. United States, 354
U.S., at 506 . Appellant also argues that adherence to a "national standard" is necessary "in order to
avoid unconscionable burdens on the free flow of interstate commerce." As noted supra, at 18 n. 1,
the application of domestic state police powers in this case did not intrude on any congressional
powers under Art. I, 8, cl. 3, for there is no indication that appellant's materials were ever
distributed interstate. Appellant's argument would appear without substance in any event. Obscene
material may be validly regulated by a State in the exercise of its traditional local power to protect
the [413 U.S. 15, 33] general welfare of its population despite some possible incidental effect on the
flow of such materials across state lines. See, e. g., Head v. New Mexico Board, 374 U.S. 424
(1963); Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960); Breard v. Alexandria, 341 U.S.
622 (1951); H. P. Hood & Sons v. Du Mond, 336 U.S. 525 (1949); Southern Pacific Co. v. Arizona,
325 U.S. 761 (1945); Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511 (1935); Sligh v. Kirkwood, 237
U.S. 52 (1915).
[ Footnote 14 ] Appellant's jurisdictional statement contends that he was subjected to "double
jeopardy" because a Los Angeles County trial judge dismissed, before trial, a prior prosecution
based on the same brochures, 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 proceeding. 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 apparently presented in this case. Appellant's
contention, therefore, is best left to the California courts for further consideration on remand. The
issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383 U.S. 502, 512
-514 (1966).
[ Footnote 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).
[ Footnote 16 ] See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the
latter part of the 19th century, Parrington 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).
[ Footnote 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).
MR. JUSTICE DOUGLAS, dissenting.
I
Today we leave open the way for California 1 to send a man to prison for distributing brochures that
advertise books and a movie under freshly written standards defining obscenity which until today's
decision were never the part of any law.
The Court has worked hard to define obscenity and concededly has failed. In Roth v. United States,
354 U.S. 476 , it ruled that "[o]bscene material is material which deals with sex in a manner
appealing to prurient interest." Id., at 487. Obscenity, it was said, was rejected by the First
Amendment because it is "utterly without redeeming [413 U.S. 15, 38] social importance." Id., at 484.
The presence of a "prurient interest" was to be determined by "contemporary community
standards." Id., at 489. That test, it has been said, could not be determined by one standard here and
another standard there, Jacobellis v. Ohio, 378 U.S. 184, 194 , but "on the basis of a national
standard." Id., at 195. My Brother STEWART in Jacobellis commented that the difficulty of the
Court in giving content to obscenity was that it was "faced with the task of trying to define what
may be indefinable." Id., at 197.
In Memoirs v. Massachusetts, 383 U.S. 413, 418 , the Roth test was elaborated to read as follows:
"[T]hree elements 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 contemporary community standards relating to the description or representation of sexual
matters; and (c) the material is utterly without redeeming social value."
In Ginzburg v. United States, 383 U.S. 463 , a publisher was sent to prison, not for the kind of
books and periodicals he sold, but for the manner in which the publications were advertised. The
"leer of the sensualist" was said to permeate the advertisements. Id., at 468. The Court said, "Where
the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact
may be decisive in the determination of obscenity." Id., at 470. As Mr. Justice Black said in dissent,
". . . Ginzburg . . . is now finally and authoritatively condemned to serve five years in prison for
distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have
known to be criminal." Id., at 476. That observation by Mr. Justice Black is underlined by the fact
that the Ginzburg decision was five to four. [413 U.S. 15, 39]
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 exposure 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 socalled
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 "hardcore 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 [413 U.S. 15, 40] 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 constitutional 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
[413 U.S. 15, 41] 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 material 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 conduct" [413 U.S. 15, 42] while on
the property "that the act for which they now stand convicted was rendered criminal" by the state
statute. Id., at 355. The same requirement of "fair warning" is due here, as much as in Bouie. The
latter involved racial discrimination; the present case involves rights earnestly urged as being
protected by the First Amendment. In any case - certainly when constitutional rights are concerned we
should not allow men to go to prison or be fined when they had no "fair warning" that what they
did was criminal conduct.
II
If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as
obscene and review of that finding has been completed, and thereafter a person publishes, shows, or
displays that particular book or film, then a vague law has been made specific. There would remain
the underlying question whether the First Amendment allows an implied exception in the case of
obscenity. I do not think it does 6 and my views [413 U.S. 15, 43] on the issue have been stated over
and over again. 7 But at least a criminal prosecution brought at that juncture would not violate the
time-honored void-for-vagueness test. 8
No such protective procedure has been designed by California in this case. Obscenity - which even
we cannot define with precision - is a hodge-podge. To send [413 U.S. 15, 44] men to jail for
violating standards they cannot understand, 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
government 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 protested 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 Amendment, applicable to the States by
virtue of the Fourteenth, raises a ban.
The idea that the First Amendment permits government 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 invite 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 [413 U.S. 15,
45] dispensing tranquilizers to the people. Its prime function 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 "offensive" 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 [413 U.S. 15, 46]
passing by." We struck it down, saying: "If three or more people meet together on a sidewalk or
street corner, 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 unconstitutionally vague because it
subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally
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 achieving the end. There are societies where religion and mathematics 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 constitutional 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 [413
U.S. 15, 47] that all ideas competing for acceptance must have no censor. Perhaps they will decide
otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except
our own predilections.
[ Footnote 1 ] California defines "obscene matter" as "matter, taken as a whole, the predominant
appeal of which to the average person, applying contemporary standards, is to prurient interest, i. e.,
a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes
substantially beyond customary limits of candor in description or representation of such matters;
and is matter which taken as a whole is utterly without redeeming social importance." Calif. Penal
Code 311 (a).
[ Footnote 2 ] Roth v. United States, 354 U.S. 476, 502 (opinion of Harlan, J.).
[ Footnote 3 ] Ginzburg v. United States, 383 U.S. 463, 467 .
[ Footnote 4 ] Jacobellis v. Ohio, 378 U.S. 184, 197 (STEWART, J., concurring).
[ Footnote 5 ] At the conclusion of a two-year study, the U.S. Commission on [413 U.S. 15, 40]
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 permits 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, psychological and
moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. As a
result, law is inconsistently 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 uncertainty about its scope also cause interference with the communication of
constitutionally protected materials." Report of the Commission on Obscenity and Pornography 53
(1970).
[ Footnote 6 ] It is said that "obscene" publications can be banned on authority of restraints on
communications incident to decrees restraining unlawful business monopolies or unlawful restraints
of trade, Sugar Institute v. United States, 297 U.S. 553, 597 , or communications respecting the sale
of spurious or fraudulent securities. Hall v. Geiger-Jones Co., 242 U.S. 539, 549 ; Caldwell v. Sioux
Falls Stock Yards Co., 242 U.S. 559, 567 ; Merrick v. Halsey & Co., 242 U.S. 568, 584 . The First
Amendment answer is that whenever speech and conduct are brigaded - as they are when one shouts
"Fire" in a crowded theater - speech can be outlawed. Mr. Justice Black, writing for a unanimous
Court in Giboney v. Empire Storage Co., 336 U.S. 490 , stated that labor unions could be restrained
from picketing a firm in support of a secondary boycott which a State had validly outlawed. Mr.
Justice Black said: "It rarely has been suggested that the constitutional freedom for speech and press
extends its immunity to speech or writing used as an integral part of conduct in violation of a valid
criminal statute. We reject the contention now." Id., at 498.
[ Footnote 7 ] See United States v. 12 200-ft. Reels of Film, post, p. 123; United States v. Orito,
post, p. 139; Kois v. Wisconsin, 408 U.S. 229 ; Byrne v. Karalexis, 396 U.S. 976, 977 ; Ginsberg v.
New York, 390 U.S. 629, 650 ; Jacobs v. New York, 388 U.S. 431, 436 ; Ginzburg v. United States,
383 U.S. 463, 482 ; Memoirs v. Massachusetts, 383 U.S. 413, 424 ; Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 72 ; Times Film Corp. v. Chicago, 365 U.S. 43, 78 ; Smith v. California, 361 U.S. 147,
167 ; Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 697 ; Roth v. United States, 354 U.S. 476,
508 ; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 446 ; Superior Films, Inc. v. Department of
Education, 346 U.S. 587, 588 ; Gelling v. Texas, 343 U.S. 960 .
[ Footnote 8 ] The Commission on Obscenity and Pornography has advocated such a procedure:
"The Commission recommends the enactment, in all jurisdictions which enact or retain provisions
prohibiting the dissemination of sexual materials to adults or young persons, of legislation
authorizing prosecutors to obtain declaratory judgments as to whether particular materials fall
within existing legal prohibitions . . . . "A declaratory judgment procedure . . . would permit
prosecutors to proceed civilly, rather than through the criminal process, against suspected violations
of obscenity prohibition. If such civil procedures are utilized, penalties would be imposed for
violation of the law only with respect to conduct occurring after a civil declaration is obtained. The
Commission believes this course of action to be appropriate whenever there is any existing doubt
regarding the legal status of materials; where other alternatives are available, the criminal process
should not ordinarily be invoked against persons who might have reasonably believed, in good
faith, that the books or films they distributed were entitled to constitutional protection, for the threat
of criminal sanctions might otherwise deter the free distribution of constitutionally protected
material." Report of the Commission on Obscenity and Pornography 63 (1970).
[ Footnote 9 ] Obscenity law has had a capricious history: "The white slave traffic was first exposed
by W. T. Stead in a magazine 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).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE
MARSHALL join, dissenting.
In my dissent in Paris Adult Theatre I v. Slaton, post, p. 73, decided this date, I noted that I had no
occasion to consider the extent of state power to regulate the distribution of sexually oriented
material to juveniles or the offensive exposure of such material to unconsenting adults. In the case
before us, appellant was convicted of distributing obscene matter in violation of California Penal
Code 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures
advertising various books and a movie. I need not now decide whether a statute might be drawn to
impose, within the requirements of the First Amendment, criminal penalties for the precise conduct
at issue here. For it is clear that under my dissent in Paris Adult Theatre I, the statute under which
the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face. *
"[T]he transcendent value to all society of constitutionally protected expression is deemed to justify
allowing `attacks on overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn with the requisite
narrow specificity.'" Gooding v. Wilson, 405 U.S. 518, 521 (1972), quoting [413 U.S. 15, 48] from
Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). See also Baggett v. Bullitt, 377 U.S. 360, 366
(1964); Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971); id., at 619-620 (WHITE, J.,
dissenting); United States v. Raines, 362 U.S. 17, 21 -22 (1960); NAACP v. Button, 371 U.S. 415,
433 (1963). Since my view in Paris Adult Theatre I represents a substantial departure from the
course of our prior decisions, and since the state courts have as yet had no opportunity to consider
whether a "readily apparent construction suggests itself as a vehicle for rehabilitating the [statute] in
a single prosecution," Dombrowski v. Pfister, supra, at 491, I would reverse the judgment of the
Appellate Department of the Superior Court and remand the case for proceedings not inconsistent
with this opinion. See Coates v. City of Cincinnati, supra, at 616.
[ Footnote * ] Cal. Penal Code 311.2 (a) provides that "Every person who knowingly: sends or
causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this
state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession
with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a
misdemeanor." [413 U.S. 15, 49]