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said, five justices signed onto an opinion articulating an obscenity test. Two, the ‘utterly without redeeming
social value’ prong, that third prong, the so-called ‘value prong’ in the test, was changed to ‘lacks serious literary,
artistic, political or scientific value.’ And three, there had been a dispute among the justices about whether the
fact that we have one First Amendment that applies across the nation meant that we have one standard of
obscenity that applies across the nation, or whether that standard can vary from place to place, and the third
thing that Miller did was, it unequivocally said it can vary from place to place, despite the fact that it’s one First
Amendment; the First Amendment adopts contemporary community standards and those standards might—it
does not hold that they always will, but they might vary from place to place, and to the extent they do, the
meaningfully applicable standard might vary from place to place.”
And certainly, enough members of the adult entertainment industry have suffered because of those variable
(and arguably non-existent) “community standards.”
“Miller versus California has had a major impact on my life, and it’s been a game changer for all of us,”
assessed Bill Murphy, owner of the Fairvilla chain of adult stores. “I was the guy that played Deep Throat in
Orange County, Florida, for 11 years, and was busted over a hundred times, indicted, grand juried under
Florida Statute 847.011, ‘exhibition of lewd and obscene motion picture films.’ All the cases were thrown out.
We argued that it wasn’t obscene under Miller. Deep Throat was found to be not obscene by a jury of six women
in Orange County. My attorney kept me out of jail for years.”
Of course, Florida is hardly a speech-friendly area, but thanks to Miller, even those based in California have
to deal with the community standards of wherever their movies are sold.
“Miller was just an excuse for people to put us out of business,” stated acclaimed director Paul Thomas. “I
went to jail in Oxford, Mississippi, for directing a movie called Triangle for Vivid. They indicted me and
actually dragged me out of my house in Venice [California] and dragged me down to Oxford, Mississippi. I
didn’t spend much time in jail down there, but we were indicted and I had to go down there and fight it along
with Steve Hirsch and David James, and I was the only one actually indicted as a director. This was the late
’80s, I guess, and the law forced me to run off to New York City and do all my filming because it was so
litigious here in California. But in New York City, no one seemed to care, so for a year or two I went to New
York and I did four productions. I was also busted in San Francisco for directing a movie for Vivid. I spent two
nights in the Oakland jail, for pandering, and I ended up getting out of it because Hal Freeman beat it in the
Supreme Court of California, so all those laws affected me a lot.”
There are myriad other problems with Miller that have yet to be addressed, and considering the paucity of
new obscenity indictments, they probably never will be. For one, Lee points out, no one has tackled the
meaning of “serious.”
and it’s been a game changer for all of us.”
—Fairvilla owner Bill Murphy
”“Mill er versus California has had a major impact on my life,
“I mean, is rock ‘n’ roll music serious?” he asked. “There are some people that use the term ‘serious music’ to
mean classical, and its contemporary equivalent. That’s serious music; the other is popular music, right? Moby
Dick is serious literature. But what about Jacqueline Susann? There are some people, when they use the term
‘serious literature,’ they use it to mean Moby Dick and not Jacqueline Susann.”
Another problem that has arisen in this century is with “taken as a whole,” with the judges in the Five Star
Video/JM Productions, Max Hardcore and John Stagliano obscenity cases ruling that only excerpts from the
charged videos need by played in court for the jury.
“I think it was a tactic that was developed by the prosecution when they began to realize that, in their view,
the reason we played with comparables and things like that were to desensitize the jury,” First Amendment
advocate and lawyer Louis Sirkin opined. “After all, there’s only so many varieties of sex that people are going to
engage in, and after you see it over and over again, its impact or its effect becomes lessened, not bringing any
reaction other than a great deal of boredom, and I think that they wanted to be able to avoid that because they
remember, back in the early days when they were showing an eight-minute or five-minute flick from a peep
arcade, the dramatic impact of that was real quick; you know, no storyline, no getting bored, whatever, and they
started to want to do that. I understood the concept of what they were doing; they wanted to just introduce it
and say, ‘You watch it in the jury room,’ but nothing prevented us, in our defense or on cross-examination,
from publishing the whole material. We had the right to do that as part of our case.
“I think the courts are wrong when they don’t make the government play the whole movie,” he continued.
“It’s part of the evidence and it has to be judged, and the only way you’re going to know whether the jury has
performed its function by watching the movie where you can observe without anybody making any comments,
which would happen if they watched it in a jury room; you don’t know what goes on; somebody says, ‘Well, I
want to stop and see that. I think that’s disgusting.’ Look at the impact of that resolve on the rest of that jury
panel if that goes on in the jury room. We would never know that because of the sanctity of jury deliberations.
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We would never know whether they fully watched it and
watched it objectively without additional evidence of the com-
ments of fellow jurors while they were watching it, so it becomes
really dangerous. But in all the cases that I’ve been involved in
with the government, and I think I’ve been involved in almost all
of them, where they’ve attempted to limit it, we’ve been able to
show the entire movie.”
And then there’s the “problem” of the World Wide Web; what
is its “community standard”? That’s already been decided, at least
for the Ninth Circuit though nowhere else, in the case of United
States v. Kilbride and Schaffer: It’s the entire United States—
though how that (or any) court could distinguish between web
pages based here and anywhere else in the world will also be a
problem for future such prosecutions.
But believe it or not, many of the First Amendment attorneys
who serve the adult industry regard the Miller test as an improve-
ment over what existed before, and something they can work with.
“In the beginning, of course, we thought the decision would
be a disaster,” recalled prominent free speech advocate Paul
Cambria, “and I recall there was an emergency meeting of the
First Amendment Lawyers in New York City in 1973, where all
the then-major hitters like Stanley Fleischman, Herald Fahringer,
Art Schwartz, all the old guard guys were there, and there was a
long discussion about what a disaster this was because the ‘utterly
without redeeming social value’ test of Roth was something that a
number of lawyers had used for years in arguing that there was
no way that the material is just utterly without redeeming value.
And now it changed to this three-prong test, and we were going
to be disappearing off the face of the earth. Well, of course, it
turned out to be just the opposite.
“When Miller finally came along, and the next generation of
defenders like myself and Sirkin and Murray got involved, it
dawned on us that really, the decision was quite helpful, and
what’s happened is, the second prong of it, the ‘patently offen-
sive’ prong, really has been interpreted to mean that the material,
taken as a whole, is acceptable to the average adult. And what’s
happened is, over the years, with more and more proliferation of
adult material in all the various media like television, cable,
satellite, computers, people are much more sophisticated and
much more willing to accept this genre of entertainment, and so
it is much easier now to make an argument that the average adult
does find explicit adult material acceptable as a form of adult
entertainment. There are some exceptions, obviously, when
people are forced or they’re underage and so on, but to the
average adult, it’s much easier now to have them agree that adult
entertainment is an acceptable form of entertainment, so Miller
has helped us to that degree.”
“I think ultimately the Miller test has not done what the Nixon
appointees thought it would do,” Lee agreed, “and the reason is
the very entity that they chose to rely on, contemporary commu-
nity standards, which had been in obscenity law before Miller—
but the very ground on which they chose to plant their flag con-
tinued to move out from under them, and I think continued to
move in favor of very, very substantially relaxed constraints on at
least what consenting adults can see and hear and view.”
Of course, there are no currently pending federal obscenity
prosecutions, and the Justice Department, having disbanded its
Obscenity Prosecution Task Force, seems uninterested in
pursuing any new ones—but that could easily change as religious
conservatives continue to seek power and influence over congres-
sional decision-makers. But the consensus is, the future is getting
brighter for sexual speech, and if liberals and centrists continue
to control policy, it should stay that way.