Page 50 - AVN July 2013

FEATURE | By Mark Kernes
Happy Decision T Ta ak ke en n a as s a a w wh ho ol le e, , 40th h ho ow w t th hi is s Birthday, l la an nd dm ma ar rk k c ca as se e f fi it ts s Miller i in nt to o o ob bs sc ce en ni it ty y l la aw w, , p pa as st t a an nd d f fu ut tu ur re e
Though it’s not likely that Nixon had the report in mind
when he found himself in a position to nominate four justices to
the United States Supreme Court, of course he chose all
Republicans, three of whom were staunch conservatives: William
Rehnquist, Lewis F. Powell, Jr., and Warren E. Burger, who
replaced Earl Warren as Chief Justice. (The fourth, Harry
Blackmun, voted with the conservatives for much of his first five
years on the court—1970-75—but became more liberal
thereafter. He even penned the majority opinion in Roe v. Wade,
and dissented in the first anti-gay rights decision, Bowers v.
Hardwick.)
But in 1973, the high court was firmly conservative, with
Justice Byron “Whizzer” White, the former football star, often
siding with the four new justices, leaving just three reliable
liberals—William O. Douglas, William J. Brennan Jr. and
Thurgood Marshall—and one centrist, Potter Stewart (of “I
know it when I see it” fame). And it was on June 21 of that year
that the Supreme Court decided a group of five obscenity cases,
the most famous of which was Miller v. California.
Marvin Miller was the owner of an adult mail-order business
based in California. According to Chief Justice Burger’s summary
of the case, he was charged with causing sexually explicit
brochures advertising four books—Intercourse, Man-Woman, Sex
Orgies Illustrated and An Illustrated History of Pornography—to be
sent, unsolicited, to a restaurant in Newport Beach where the
package was opened by the restaurant’s manager and his mother.
The brochures “primarily ... consist[ed] 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.” Upon viewing those contents, the
es
N N
ineteen seventy-three was a dark and stormy year. President Richard M. Nixon had just been
reelected despite the furor over “what he knew and when he knew it” regarding botched
burglaries targeting a Democratic campaign headquarters in the Watergate Hotel.
By mid-August of that year, Tricky Dick’s resignation had been accepted and the U.S. had its
first non-elected president.
Though it’
s not mentioned on his infamous “enemies list,” Nixon also was no friend of porn. When the final
report of the President’s Commission on Obscenity and Pornography, which had been created during the
Lyndon Johnson administration, was completed, Nixon wasted no time disowning its findings—and this was
after having replaced one of the commission’s more liberal members with notorious anti-porn zealot Charles H.
Keating Jr. For instance, both Nixon and the (Democratically controlled) U.S. Senate rejected the following
findings: that there was “no evidence to date that exposure to explicit sexual materials plays a significant role in
the causation of delinquent or criminal behavior among youths or adults”; that there was no “evidence that
exposure to explicit sexual materials adversely affects character or moral attitudes regarding sex and sexual
conduct”; and of course that, “Federal, State, and Local legislation prohibiting the sale, exhibition, or
distribution of sexual materials to consenting adults should be repealed.”
50 | AVN.com | 7.13
FEATURE
manager promptly called the cops, and the rest is history.
Well, almost.
Miller was not the first obscenity case the Supreme Court had
decided—but on the other hand, obscenity’s history in the U.S.
hardly goes as far back as sexual-speech detractors would have
everyone believe. As law professor Eugene Volokh noted in the
Heritage Guide to the Constitution, published by the ultra-
conservative Heritage Foundation, from the founding of the
country, “[t]here was only one state law banning pornography,
and it appears to have been unenforced until 1821.”
In fact, the first time the federal government became
interested in obscenity (and pornography, it being impossible to
tell the difference between the two until a jury or judge delivers
a verdict) was the Comstock Act (1873), brainchild of then-
Postmaster General Anthony Comstock, which criminalized
sending through the mails, lending, giving away, exhibiting,
publishing or even possessing “an obscene book, pamphlet,
paper, writing, advertisement, circular, print, picture, drawing or
other representation, figure, or image on or of paper or other
material, or any cast instrument, or other article of an immoral
nature, or any drug or medicine, or any article whatever, for the
prevention of conception, or for causing unlawful abortion.”
The Comstock Act led to obscenity charges against works by
Ernest Hemingway, D.H. Lawrence, James Joyce, J.D. Salinger,
John Steinbeck, Henry Miller, Norman Mailer and several other
well-respected authors, but the Supreme Court never accepted
appeals in any of those cases. Yet those prosecutions and seizures
hardly square with Burger’s claim, in the Miller opinion, that
“There is no evidence, empirical or historical, that the stern