Page 52 - AVN July 2013

class of expression does in fact exist, I am forced to conclude that the concept of ‘obscenity’ cannot be defined
with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented
materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected
speech, and to avoid very costly institutional harms. Given these inevitable side effects of state efforts to sup-
press what is assumed to be unprotected speech, we must scrutinize with care the state interest that is asserted to
justify the suppression. For, in the absence of some very substantial interest in suppressing such speech, we can
hardly condone the ill effects that seem to flow inevitably from the effort.” [Emphasis in original]
Another important aspect of Paris is that, unlike Miller, which dealt with an unsolicited mailing, Paris
involved a pair of Atlanta, Georgia, movie theaters which made it very clear to potential patrons that each was
an “Adult Theatre—You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not
Enter.” Although a federal judge had found the material protected, the Supreme Court, in upholding the
Eleventh Circuit’s reversal of the trial court, made clear that it didn’t matter if the viewers of the material were
consenting adults; it was the material itself that was the “bad actor.”
With that as background, let’s deal with the Miller decision itself. Chief Justice Burger wrote the opinion,
and in it, he referenced many of the high court’s previous obscenity rulings in order to establish that the court
had a long history of finding that there was a thing called “obscenity” that had been, and should be, considered
to be unprotected by the First Amendment. And thanks to Brennan’s dissent in Paris, Burger felt safe in saying
that the “utterly without redeeming social value” test of Memoirs “has been abandoned as unworkable by its
author, and no Member of the Court today supports the Memoirs formulation.”
standard for sexual depictions in an environment where
”Jurors are asked to ferret out the non-existent community
no one talks about their sexual fantasy life.
—Jeffr ey Douglas
Of course, Brennan thought that no test could be workable, but that hardly mattered to the agenda-driven
Burger, who described Memoirs’ addition of the adjective “utterly” to the phrase “without redeeming social
value” as a “drastically altered test that called on the prosecution to prove a negative,” which he deemed “a
burden virtually impossible to discharge under our criminal standards of proof.”
However, after admitting that since Roth, “no majority of the Court has at any given time been able to agree
on a standard to determine what constitutes obscene, pornographic material, Burger nonetheless proposed his
own test for obscenity, which we now know as the “Miller test.”
“The basic guidelines for the trier of fact,” Burger wrote, “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; (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.” [Citations omitted here and below]
“Those are the standards we ourselves have written into the Constitution,” complained Justice Douglas
in his dissent. “Yet how under these vague tests can we sustain convictions for the sale of an article prior
es
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FEATURE
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52 | AVN.com | 7.13
to the time when some court has declared it to be obscene?”
“Miller made it clear that the First Amendment protects a lot
of what people call ‘porn,’ but it did so in a way that leaves most
of us scratching our heads about the particulars,” reflected
veteran adult webmaster Quentin Boyer. “How many people, for
example, have had occasion in their lives to use the term
‘prurient,’ or to contemplate what, precisely, represents a ‘shame-
ful or morbid interest’ in sex? For most people, I suspect they
will never ponder such things ... until or unless they are asked to
sit on the jury in an obscenity case, that is.”
But the prosecution-friendly Burger didn’t stop there.
“We emphasize that it is not our function to propose regulatory
schemes for the States,” he wrote, undoubtedly knowing that
that’s exactly what his next words would go a long way toward
doing. “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.”
Indeed; many anti-porn zealots like Morality in Media
president (and former DOJ prosecutor) Patrick Trueman have
taken Burger’s suggestions as gospel, and have argued that all
“ultimate sex acts” are per se obscene.
“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 be exhibited or sold with-
out limit in such public places,” Burger added, probably as a nod
to the Paris decision. “At a minimum, prurient, patently offen-
sive depiction or description of sexual conduct must have serious
literary, artistic, political, or scientific value to merit First
Amendment protection.”
“It’s a fascinating decision because it’s so vague,” noted Adam
& Eve owner Phil Harvey. “Indeed, you may recall in my book
[The Government vs Erotica], there is a memo from David
Ogden, who subsequently spent some time at the Justice
Department, demonstrating quite thoroughly that if Miller dealt
with anything other than sex, it would be found unconstitution-
ally vague, and I think that’s probably correct.”
Another problem with the Miller decision is its rejection of a
national standard by which purported obscene material could be
judged.
“The greatest flaw in Miller is the concept of a ‘community
standard,’ attorney Douglas stated. “As my colleague Reed Lee so
elegantly asserts, communities do not have ‘standards’ for any-
thing. What is the statewide (or county-wide) standard for attire,
or musical performances?
“The idea is absurd and made more absurd by the notion that
the individual jurors may not impose their own individual stan-
dards, but must use those of the ‘community’ as each individually
perceives it,” he continued. “Worse yet, jurors are asked to ferret
out the non-existent community standard for sexual depictions
in an environment where no one talks about their sexual fantasy
life. No one at work talks about the gang-bang movie they
watched last night. No one chats about rape fantasies in the
lunch room. Sexual fantasies are the last truly private province,
and yet Miller demands that jurors determine the ‘community’s’
standard for sexual depictions beyond a reasonable doubt!”
“Miller does three things of which Chief Justice Burger was
very proud; he crowed about it, he boasted about it, the three
things,” Lee summarized. “One, for the first time in 17 years, he