: MILLER VS
. CALIFORNIA & LET’S PUT PORNOGRAPHY BACK IN THE CLOSET AN INTEGRATED ESSAY
The Encyclopedia describes pornography as perhaps the lowest level of artistic or literary endeavor.
Pornography may be defined as the presentation of sexual behavior in books, pictures, or films solely to
cause sexual excitement. The word pornography is derived from a Greek term meaning the writings of
harlots or prostitutes. Closely related and in legal terms virtually identical, is obscenity, which is behavior
or material that is immoral and designed to produce lust. In the Miller vs. California case, the State’s
criminal obscenity statute was applied to a situation in which sexually explicit materials was sent to a
resturante owner and his mother without their ever asking to recieve such materials.
Pornography, like beauty, is often in the eye of the beholder, Justice Porter Stewart once said about
hard-core pornography, “You know it when you see it”. Neither legislative bodies nor the courts have
been able to give clear-cut definitions of what is or by what standards it should be regulated. In the
United States, where freedom of speech is written into the Constitution, it has been impossible to ban
The central issue. The Justices of the Supreme Court was to set up a three part test to determine if materials are obscene and to make this law a little more clearer. In 1973, the Court held that material could
be considered legally obscene only if (1) the average person, applying contemporary community standards,
would find that the material, taken as a whole, appeals to the prurient (sexually arousing) interest; (2) the
material shows in a clearly offensive way, sexual conduct specifically described in the applicable law; and
(3) the material lacks serious literary, artistic, political, or scientific value, when evaluated in accordance
with national standards. The Miller case of 1973 removed some vagueness but not the flexibility.
The dissenting, Justice Douglas said, “Today we leave open the way for California to send a
man to prison for distribution of brochures that advertise books and a movie under freshly written
standards defining obscenity which until today’s decision were never the part of any law.” His concern
was well noted because of the flexibility that allowed the states to let community standards be the
deciding factor. There have been three major court rulings that have determined public policy toward
obscene matter in the United States. The earliest, in 1868, was a British case, Regina vs. Hicklin, which
influenced American law for many decades. The others were rulings by the United States Supreme Court:
Roth v. United States in 1957 and Miller vs. California.
In the Roth case the Supreme Court attempted for the first time to provide standards for judging
pornography. It ruled that obscene material is not protected by the First Amendment guarantee of
freedom of speech, and for a work to be pornographic it must appeal to the prurient (unwholesome)
interest and be utterly without redeeming social importance. Justices on the court who were against
the Roth decision found it to be vague, imprecise, and flexible. Modifications in later cases proved
this to be true.
One thing the Supreme Court decision did accomplish was to provide fair notice to a dealer of such
materials that were offensive. This case was intensively focused on the First Amendment and Bill of
rights, which was the main argument from the beginning of the Roth case. There was a lot of emotion
mixed with the legal ramafications here. Justice Douglas brought up some interesting facts from a
different perspective. He said, “What causes one person to boil up in rage over one pamphlet or movie
may reflect only his neurosis, not shared by others.” “The First Amendment was designed to invite
dispute, to induce a condition of unrest, to create dissatisfaction with conditions as they are, and even
to stir people to anger.” These words alone are enough for me (even if I was against obscene material)
to see the other’s point of view. You can see his point, but since history is ever bound to repeat itself,
the needs and wants of the people usually outweighs that of a separate entity like a distributor. Even
though the decision of the Supreme Court was well intentioned, it still had flaws in it (Justice Douglas
pointed these out in his dissenting opinion). Like all court decisions, not everyone will be satisfied
because the decision usually left something out or is unconstitutional in one way or another. If you
remember congress passed the first federal law against obscenity as part of the Traffic Act of 1842.
This law made it illegal to bring what it called “indecent and obscene” material into the country. The
Comstock Law, passed in 1873, prohibited the mailing of indecent materials.
Susan Brownmiller talks about the lack of support “freedom of speech” under the First Amendment
recieved little or none from the very government that had written the constitution. Even more suprising
is that very few lawyers didn’t want to handle a case like this one because it was unpopular and public
opinion was not in favor of it at the time.
She was right to quote Chief Justice Warren Burger in that, “to equate the free and robust exchange of
ideas and political debate with commercial exploitation of obscene material demeans the grand conception
of the First Amendment and its high struggle for freedom. It is a misuse of the great guarantees of free
speech and free press.” The pornography business, in my opinion, has no place in the political, artistic,
or scientific development of a society. Its main purpose is to make a profit period.
As the author of Against Our Will, she’s benefited from the court decision in which the question of
whether James Joyce’s Ulysses should be banned as pornographic material. This was a result of the
Supreme Court decision which failed to define “hard-core” and while making the law clearer, still left
it with flexibility, which later on brought certain passages in literature into question. However, because
the book was judged in its entirety, the battle was won to protect it as literature with redeeming social value.
The central issue is the feminist objection to pornography, is based on the belief that it represents hatred
of women and its intent is to humiliate, degrade and dehumanize the female body for the purpose of
stimulation and pleasure. Susan believes that pornography has nothing to do with political dissent, but the
creation of a cultural climate in which a rapist feels he is encouraged. She is not alone in her opinion. In
1986 the Attorney General’s Commission on Pornography determined that a relationship existed between
sexually violent or degrading materials and the amount of sexual violence in society. In Canada
antiobscenity groups fight for stricter laws. Many members of these groups seek recognition of the harm
resulting from materials that endorse sexual violence against women. (Frederick Schauer, J.D., Frank
Stanton Professor of the First Amendment, Harvard University)
Susan said, “Get the stuff out of our sight.” This, I think, makes perfect sense. It will not bring up any
freedom of press issues and anyone who wants to see this material or buy it can ask for it. Using
contemporary community standards, I think that if the majority of a community feels this way and does not
want these materials in public view it should be honored. Let the people decide.