Page 45 - AVN July 2013

The Single-Bullet Theory
The political background of Miller may be more intriguing than any other aspect of it.
Many if not most of you are too young to remember the political turmoil of the ’60s. As
noted above, the Court had imposed very profound social changes on the nation; a large
segment of America was shocked by much of it.
In reality, Miller was decided on June 4, 1968, at the Ambassador Hotel in Los
Angeles, when a single bullet from assassin Sirhan Sirhan’s pistol took Robert Kennedy’s
life, changing the course of history in general and the Supreme Court in particular.
Hubert Humphrey was nominated in Chicago with the “whole world watching,” but lost
a close election to Richard Nixon, who had pledged to nominate “strict constructionists”
to the Court, which he later did.
Miller v. California turned out to be a 5-4 decision, the four dissenters concluding that
obscenity statutes all were unconstitutional. Of the five justices voting to uphold
obscenity statutes, four were appointed by President Nixon between 1968 and 1973,
including Chief Justice Warren Burger, who reportedly utilized his chief-justice case-
assigning power to sway the Court from a preliminary decision by Justice Brennan to
jettison all obscenity statutes. Of the four Supreme Court justices that would have been
appointed by Robert Kennedy, certainly most or all would have agreed with the strong
opinion of Justice Brennan. But the Brennan opinion became the dissent, and we all have
lived with it since.
Why Miller Is Out Of Whack with Fundamental
Constitutional Doctrine
The Miller test defines one of the few classes of speech not protected by the First
Amendment. The handful of others include revealing troop movements in wartime,
“fighting words,” child pornography, defamation and fraud. Of late, the Supreme Court
has declined to add to the list by striking down the Stolen Valor Act, California’s law
against violent video games, and the federal law regarding “crush videos.” The reason for
the court allowing its handful of exceptions to the First Amendment and for not adding
those new categories is this: The general constitutional rule is that regulations of content
of speech are presumptively invalid and will not stand unless the government establishes
that the regulation 1) furthers a compelling governmental interest, and 2) does so by the
least restrictive means available.
That is a tall order! There aren’t too many governmental interests that are compelling.
Protecting the lives of troops in wartime is an obvious example of one that is, as is
protecting children from child abuse that follows them around on video for life. And the
least restrictive means is a tough test because it often is not difficult to think of a means
that is less restrictive.
The Miller test, among other things, requires only that the material be “patently
offensive.” However, all kinds of very offensive speech is protected by the First
Amendments: hate speech, racial slurs, etc.
Is there a compelling interest in suppressing obscenity? In a child pornography case,
the Supreme Court itself described the governmental interests involved as “weak” and
“paternalistic.”
Serious value? That speech has no serious value generally does not strip it of its
constitutional protection.
Atop that, Miller is 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.
Miller was unprincipled when it was decided; it remains that way, having been
repeatedly reaffirmed by the Supreme Court for 40 years. In fact, the only current
member of the Court who ever has called Miller into question is Justice Scalia—the same
justice who, in oral argument in United States v. Playboy, notwithstanding the govern-
ment’s concession of First Amendment protection for the subject “cable version” movies,
asked how the movies could possibly enjoy First Amendment protection. It is doubtful
that he would be any help.
So, Miller is what it is. It is unfair, inconsistent with First Amendment doctrine and
hopelessly vague. However, plan on living with it! ||
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