Page 44 - AVN July 2013

LEGAL NEWS
LEGALESE | By Clyde DeWitt
Fuzzy Logic The ‘dim and uncertain line’ of Miller v. California
What Really Is Miller?
Miller was really five cases—the so-called “Miller
quintet”: Miller v. California, 413 U.S. 15, 93 S.Ct.
2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v.
Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446
(1973); United States v. 12 200-Foot Reels of Super
8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d
500 (1973); United States v. Orito, 413 U.S. 139, 93
S.Ct. 2674, 37 L.Ed.2d 513 (1973); and Kaplan v.
California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
492 (1973).
Miller was one of the rare cases in Supreme Court
ClydeDeWitt@earthlink.net. More information can be
found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to
alert readers to legal issues warranting advice from
your personal attorney.
history that was re-argued. The court really had
difficulty with it, and with good reason. Since 1957,
when the Court decided the first case in modern
history in which it squarely addressed the issue of
whether obscenity was protected by the First
Amendment—and, if it was not, how it would be
defined—no majority of the nine Supreme Court
justices could agree on how to define “obscenity.”
Atop that, the Court had been under fire from
Milleris the epitome
of vagueness.
It is difficult if not
impossible to find a
statutory scheme
nearly as vague that
has been upheld by
the Supreme Court.
”
conservatives in a way unparalleled since FDR’s New
Deal, especially in the South. The Court had decided
the controversial Brown v. Board of Education case,
integrating schools (supposedly) in the face of a
Southern culture that was still fighting the Civil War.
It also had decided the spate of “criminal law revolu-
tion” cases, allowing criminal defendants rights to free
lawyers, free appellate transcripts, Miranda warnings
and more—something that the lowest common
denominator of the public never could understand
applied to innocent people, too. Worse, from the
public-controversy standpoint, the Court had in the
past year or two thrown out the death penalty (which
would be reinstated a few years later after procedural
safeguards were enacted) and, to the shock of religious
conservatives (many of whom still opposed birth con-
trol!), legalized abortion.
The legal precedent under which Miller was
decided was interesting. There were three central
issues faced in Miller:
First, the Court had decided in 1969 that posses-
sion of obscene material could not be criminalized.
Because individuals had a right to access birth control
information and devices, the Court had held, phar-
macists had a right to sell them. So, if citizens had a
right to possess obscene materials, why did they not
have a right to buy them and merchants the right to
sell them?
Miller v. California and the mischief that it generated was a focal point of this
industry from the day it was decided (June 21, 1973, for the record) until Bill
Clinton took office. After that, the federal government lost interest in obscenity
prosecutions, and local governments had far more effective weapons against
local businesses: zoning, licensing, operating regulations and other varieties of
misery that locales are allowed to exact upon “sexually oriented businesses”
(pejoratively, “SOBs”).
However, Miller is not dead—just ask Max Hardcore (the author’s tenacious
friend Paul Little), who spent a few dozen months in the hoosegow on an
obscenity beef; or John Stagliano (another of the author’s friends and a fellow
Chicago Cubs fan), who spent a fortune to defend against a total-nonsense
obscenity prosecution in Washington, D.C.; or any one of the number of
erotica publishers who have faced obscenity prosecutions during the “W”
administration.
Second, if citizens had a right to possess obscene
materials, why could they not commercially exchange
it if the exchange was between willing adults? After
all, who is harmed?
Third, obscenity laws are criminal—and criminal
laws must be reasonably precise. As explained later in
this, the Miller test has always been bewildering to
lawyers, not to mention typical citizens.
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