U.S. Supreme Court Miller v. California, 413 U.S.
15 (1973) Miller v. California No. 70-73 Argued January 18-19,
1972 Reargued November 7,
1972 Decided June 21, 1973 413 U.S.
15 APPEAL FROM THE APPELLATE
DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY OF
ORANGE Syllabus Appellant was convicted of mailing unsolicited sexually explicit
material in violation of a California statute that approximately
incorporated the obscenity test formulated in Memoirs v.
Massachusetts, 383 U. S. 413 , 383 U. S. 418 (plurality opinion). The trial court instructed the jury to
evaluate the materials by the contemporary community standards of
California. Appellant's conviction was affirmed on appeal. In lieu
of the obscenity criteria enunciated by the Memoirs plurality, it is held: 1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476 ,
reaffirmed. A work may be subject to state regulation where that
work, taken as a whole, appeals to the prurient interest in sex;
portrays, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and, taken as a whole, does
not have serious literary, artistic, political, or scientific
value. Pp. 413 U. S.
23 -24.

															2. The basic guidelines for the trier of fact 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, Roth, supra, at 354 U. S. 489 ,
(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. If a state
obscenity law is thus limited, First Amendment values are
adequately protected by ultimate independent appellate review of
constitutional claims when necessary. Pp. 413 U. S.
24 -25.

															3. The test of "utterly without redeeming social value"
articulated in Memoirs, supra, is rejected as a
constitutional standard. Pp. 413 U. S.
24 -25.

															4. The jury may measure the essentially factual issues of
prurient appeal and patent offensiveness by the standard that
prevails in the forum community, and need not employ a "national
standard." Pp. 413 U. S.
30 -34.

															Vacated and remanded. Page 413 U. S. 16 BURGER, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J.,
filed a dissenting opinion, post, p. 413 U. S. 37 .
BRENNAN, J., filed a dissenting opinion, in which STEWART and
MARSHALL, JJ., joined, post, p. 413 U. S.
47 .

															MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

															This is one of a group of "obscenity-pornography" cases being
reviewed by the Court in a reexamination of standards enunciated in
earlier cases involving what Mr. Justice Harlan called "the
intractable obscenity problem." Interstate Circuit, Inc. v.
Dallas, 390 U. S. 676 , 390 U. S. 704 (1968) (concurring and dissenting).

															Appellant conducted a mass mailing campaign to advertise the
sale of illustrated books, euphemistically called "adult" material.
After a jury trial, he was convicted of violating California Penal
Code § 311.2(a), a misdemeanor, by knowingly distributing obscene
matter, [ Footnote 1 ] Page 413 U. S. 17 and the Appellate Department, Superior Court of California,
County of Orange, summarily affirmed the judgment without opinion.
Appellant's conviction was specifically Page 413 U. S. 18 based on his conduct in causing five unsolicited advertising
brochures to be sent through the mail in an envelope addressed to a
restaurant in Newport Beach, California. The envelope was opened by
the manager of the restaurant and his mother. They had not
requested the brochures; they complained to the police.

															The brochures advertise four books entitled "Intercourse,"
"Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History
of Pornography," and a film entitled "Marital Intercourse." While
the brochures contain some descriptive printed material, primarily
they consist 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. I This case involves the application of a State's criminal
obscenity statute to a situation in which sexually explicit
materials have been thrust by aggressive sales action upon
unwilling recipients who had in no way indicated any desire to
receive such materials. This Court has recognized that the States
have a legitimate interest in prohibiting dissemination or
exhibition of obscene material [ Footnote 2 ] Page 413 U. S. 19 when the mode of dissemination carries with it a significant
danger of offending the sensibilities of unwilling recipients or of
exposure to juveniles. Stanley v. Georgia, 394 U.
S. 557 , 394 U. S. 567 (1969); Ginsberg v. New York, 390 U.
S. 629 , 390 U. S.
637 -643 (1968); Interstate Circuit, Inc. v. Dallas,
supra, at 390 U. S. 690 ; Redrup v. New York, 386 U. S. 767 , 386 U. S. 769 (1967); Jacobellis v. Ohio, 378 U.
S. 184 , 378 U. S. 195 (1964). See Rabe v. Washington, 405 U.
S. 313 , 405 U. S. 317 (1972) (BURGER, C.J., concurring); United States v.
Reidel, 402 U. S. 351 , 402 U. S.
360 -362 (1971) (opinion of MARSHALL, J.); Joseph
Burstyn, Inc. v. Wilson, 343 U. S. 495 , 343 U. S. 502 (1952); Breard v. Alexandria, 341 U.
S. 622 , 341 U. S. 644 645 (1951); Kovacs v. Cooper, 336 U. S.
77 , 336 U. S. 88 -89
(1949); Prince v. Massachusetts, 321 U.
S. 158 , 321 U. S.
169 -170 (1944). Cf. Butler v. Michigan, 352 U. S. 380 , 352 U. S.
382 -383 (1957); Public Utilities Comm'n v.
Pollak, 343 U. S. 451 , 343 U. S.
464 -465 (1952) It is in this context that we are
called Page 413 U. S. 20 on to define the standards which must be used to identify
obscene material that a State may regulate without infringing on
the First Amendment as applicable to the States through the
Fourteenth Amendment.

															The dissent of MR. JUSTICE BRENNAN reviews the background of the
obscenity problem, but since the Court now undertakes to formulate
standards more concrete than those in the past, it is useful for us
to focus on two of the landmark cases in the somewhat tortured
history of the Court's obscenity decisions. In Roth v. United
States, 354 U. S. 476 (1957), the Court sustained a conviction under a federal statute
punishing the mailing of "obscene, lewd, lascivious or filthy . .
." materials. The key to that holding was the Court's rejection of
the claim that obscene materials were protected by the First
Amendment. Five Justices joined in the opinion stating:

															"All ideas having even the slightest redeeming social importance
-- unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion -- have the full protection of the
[First Amendment] guaranties, unless excludable because they
encroach upon the limited area of more important interests. But
implicit in the history of the First Amendment is the rejection of
obscenity as utterly without redeeming social importance. . . .
This is the same judgment expressed by this Court in Chaplinsky
v. New Hampshire, 315 U. S. 568 , 315 U. S.
571 -572: "

															". . . There are certain well defined and narrowly limited
classes of speech, the prevention and punishment of which have
never been thought to raise any Constitutional problem. These
include the lewd and obscene. . . . It has been well observed that
such utterances are no essential part of any exposition of ideas,
and are of such slight social Page 413 U. S. 21 value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in
order and morality. . . ."

															[Emphasis by Court in Roth opinion.]

															"We hold that obscenity is not within the area of
constitutionally protected speech or press."

															354 U.S. at 354 U. S. 48 85
(footnotes omitted).

															Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion,
articulated a new test of obscenity. The plurality held that, under
the Roth definition,

															"as elaborated in subsequent cases, three elements must
coalesce: it must be established that (a) the dominant theme of the
material, taken as a whole, appeals to a prurient interest in sex;
(b) the material is patently offensive because it affronts
contemporary community standards relating to the description or
representation of sexual matters; and (c) the material is utterly
without redeeming social value." Id. at 383 U. S. 418 .
The sharpness of the break with Roth, represented by the
third element of the Memoirs test and emphasized by MR.
JUSTICE WHITE's dissent, id. at 383 U. S.
460 -462, was further underscored when the Memoirs plurality went on to state:

															"The Supreme Judicial Court erred in holding that a book need
not be 'unqualifiedly worthless before it can be deemed obscene.' A
book cannot be proscribed unless it is found to be utterly without redeeming social value." Id. at 383 U. S. 419 (emphasis in original).

															While Roth presumed "obscenity" to be "utterly without
redeeming social importance," Memoirs required Page 413 U. S. 22 that to prove obscenity it must be affirmatively established
that the material is " utterly without redeeming social
value." Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that
called on the prosecution to prove a negative, i.e., that
the material was " utterly without redeeming social value"
-- a burden virtually impossible to discharge under our criminal
standards of proof. Such considerations caused Mr. Justice Harlan
to wonder if the " utterly without redeeming social value"
test had any meaning at all. See Memoirs v. Massachusetts,
id. at 383 U. S. 459 (Harlan, J., dissenting). See also id. at 383 U. S. 461 (WHITE, J., dissenting); United States v. Groner, 479 F.2d
577, 579581 (CA5 1973).

															Apart from the initial formulation in the Roth case, no
majority of the Court has at any given time been able to agree on a
standard to determine what constitutes obscene, pornographic
material subject to regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S. at 386 U. S.
770 -771. We have seen "a variety of views among the
members of the Court unmatched in any other course of
constitutional adjudication." Interstate Circuit, Inc. v.
Dallas, 390 U.S. at 390 U. S.
704 -705 (Harlan, J., concurring and dissenting)
(footnote omitted). [ Footnote
3 ] This is not remarkable, for in the area Page 413 U. S. 23 of freedom of speech and press the courts must always remain
sensitive to any infringement on genuinely serious literary,
artistic, political, or scientific expression. This is an area in
which there are few eternal verities.

															The case we now review was tried on the theory that the
California Penal Code § 311 approximately incorporates the
three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its
author, [ Footnote 4 ] and no
Member of the Court today supports the Memoirs formulation. II This much has been categorically settled by the Court, that
obscene material is unprotected by the First Amendment. Kois v.
Wisconsin, 408 U. S. 229 (1972); United States v. Reidel, 402 U.S. at 402 U. S. 354 ; Roth v. United States, supra, at 354 U. S. 485 .
[ Footnote 5 ] "The First and
Fourteenth Amendments have never been treated as absolutes
[footnote omitted]." Breard v. Alexandria, 341 U.S. at 341 U. S. 642 ,
and cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43 , 365 U. S. 47 -50
(1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502 .
We acknowledge, however, the inherent dangers of undertaking to
regulate any form of expression. State statutes designed to
regulate obscene materials must be Page 413 U. S. 24 carefully limited. See Interstate Circuit, Inc. v. Dallas,
supra, at 390 U. S.
682 -685. As a result, we now confine the permissible
scope of such regulation to works which depict or describe sexual
conduct. That conduct must be specifically defined by the
applicable state law, as written or authoritatively construed.
[ Footnote 6 ] A state offense
must also be limited to works which, taken as a whole, appeal to
the prurient interest in sex, which portray sexual conduct in a
patently offensive way, and which, taken as a whole, do not have
serious literary, artistic, political, or scientific value.

															The basic guidelines for the trier of fact 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, Kois v. Wisconsin, supra, at 408 U. S. 230 ,
quoting Roth v. United States, supra, at 354 U. S. 489 ;
(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. We do not adopt
as a constitutional standard the "utterly without redeeming social
value" test of Memoirs v. Massachusetts, Page 413 U. S. 25 383 U.S. at 383 U. S. 419 ;
that concept has never commanded the adherence of more than three
Justices at one time. [ Footnote
7 ] See supra at 413 U. S. 21 . If
a state law that regulates obscene material is thus limited, as
written or construed, the First Amendment values applicable to the
States through the Fourteenth Amendment are adequately protected by
the ultimate power of appellate courts to conduct an independent
review of constitutional claims when necessary. See Kois v.
Wisconsin, supra, at 408 U. S. 232 ; Memoirs v. Massachusetts, supra, at 383 U. S.
459 -460 (Harlan, J., dissenting); Jacobellis v.
Ohio, 378 U.S. at 204 (Harlan, J., dissenting); New York
Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S.
284 -285 (1964); Roth v. United States, supra, at 354 U. S.
497 -498 (Harlan, J., concurring and dissenting).

															We emphasize that it is not our function to propose regulatory
schemes for the States. 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.

															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 Page 413 U. S. 26 be exhibited or sold without limit in such public places.
[ Footnote 8 ] At a minimum,
prurient, patently offensive depiction or description of sexual
conduct must have serious literary, artistic, political, or
scientific value to merit First Amendment protection. See Kois
v. Wisconsin, supra, at 408 U. S.
230 -232; Roth v. United States, supra, at 354 U. S. 487 ; Thornhill v. Alabama, 310 U. S. 88 , 310 U. S.
101 -102 (1940). For example, medical books for the
education of physicians and related personnel necessarily use
graphic illustrations and descriptions of human anatomy. In
resolving the inevitably sensitive questions of fact and law, we
must continue to rely on the jury system, accompanied by the
safeguards that judges, rules of evidence, presumption of
innocence, and other protective features provide, as we do with
rape, murder, and a host of other offenses against society and its
individual members. [ Footnote
9 ]

															MR. JUSTICE BRENNAN, author of the opinions of the Court, or the
plurality opinions, in Roth v. United States, supra; Jacobellis
v. Ohio, supra; Ginzburg v. United Page 413 U. S. 27 States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U.
S. 502 (1966); and Memoirs v. Massachusetts,
supra, has abandoned his former position and now maintains
that no formulation of this Court, the Congress, or the States can
adequately distinguish obscene material unprotected by the First
Amendment from protected expression, Paris Adult Theatre I v.
Slaton, post, p. 413 U. S. 73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN
indicates that suppression of unprotected obscene material is
permissible to avoid exposure to unconsenting adults, as in this
case, and to juveniles, although he gives no indication of how the
division between protected and nonprotected materials may be drawn
with greater precision for these purposes than for regulation of
commercial exposure to consenting adults only. Nor does he indicate
where in the Constitution he finds the authority to distinguish
between a willing "adult" one month past the state law age of
majority and a willing "juvenile" one month younger.

															Under the holdings announced today, no one will be subject to
prosecution for the sale or exposure of obscene materials unless
these materials depict or describe patently offensive "hard core"
sexual conduct specifically defined by the regulating state law, as
written or construed. We are satisfied that these specific
prerequisites will provide fair notice to a dealer in such
materials that his public and commercial activities may bring
prosecution. See Roth v. United States, supra, at 354 U. S.
491 -492. Cf. Ginsberg v. New York, 390 U.S. at 390 U. S. 643 .
[ Footnote 10 ] If Page 413 U. S. 28 the inability to define regulated materials with ultimate,
god-like precision altogether removes the power of the States or
the Congress to regulate, then "hard core" pornography may be
exposed without limit to the juvenile, the passerby, and the
consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends.
As to MR. JUSTICE DOUGLAS' position, see United States v.
Thirty-seven Photographs, 402 U. S. 363 , 402 U. S.
379 -380 (1971) (Black, J., joined by DOUGLAS, J.,
dissenting); Ginzburg v. United States, supra, at 383 U. S. 476 , 383 U. S.
491 -492 (Black, J., and DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 196 (Black, J., joined by DOUGLAS, J., concurring); Roth,
supra, at 354 U. S.
508 -514 (DOUGLAS, J., dissenting). In this belief,
however, MR. JUSTICE DOUGLAS now stands alone.

															MR. JUSTICE BRENNAN also emphasizes "institutional stress" in
justification of his change of view. Noting that "[t]he number of
obscenity cases on our docket gives ample testimony to the burden
that has been placed upon this Court," he quite rightly remarks
that the examination of contested materials "is hardly a source of
edification to the members of this Court." Paris Adult Page 413 U. S. 29 Theatre I v. Slaton, post, at 413 U. S. 92 , 413 U. S. 93 . He
also notes, and we agree, that "uncertainty of the standards
creates a continuing source of tension between state and federal
courts. . . ."

															"The problem is . . . that one cannot say with certainty that
material is obscene until at least five members of this Court,
applying inevitably obscure standards, have pronounced it so." Id. at 413 U. S. 93 , 413 U. S.
92 .

															It is certainly true that the absence, since Roth, of a
single majority view of this Court as to proper standards for
testing obscenity has placed a strain on both state and federal
courts. But today, for the first time since Roth was
decided in 1957, a majority of this Court has agreed on concrete
guidelines to isolate "hard core" pornography from expression
protected by the First Amendment. Now we may abandon the casual
practice of Redrup v. New York, 386 U.
S. 767 (1967), and attempt to provide positive guidance
to federal and state courts alike.

															This may not be an easy road, free from difficulty. But no
amount of "fatigue" should lead us to adopt a convenient
"institutional" rationale -- an absolutist, "anything goes" view of
the First Amendment -- because it will lighten our burdens.
[ Footnote 11 ] "Such an
abnegation of judicial supervision in this field would be
inconsistent with our duty to uphold the constitutional
guarantees." Jacobellis v. Ohio, supra, at 378 U. S.
187 -188 (opinion of BRENNAN, J.). Nor should we remedy
"tension between state and federal courts" by arbitrarily depriving
the States of a power reserved to them under the Constitution, a
power which they have enjoyed and exercised continuously from
before the adoption of the First Amendment to this day. See
Roth v. United States, supra, at 354 U. S.
482 -485.

															"Our duty admits of no 'substitute for facing up Page 413 U. S. 30 to the tough individual problems of constitutional judgment
involved in every obscenity case.' [ Roth v. United States,
supra, at 354 U. S. 498 ]; see
Manual Enterprises, Inc. v. Day, 370 U. S.
478 , 370 U. S. 488 (opinion of
Harlan, J.) [footnote omitted]." Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN, J.). III Under a National Constitution, fundamental First Amendment
limitations on the powers of the States do not vary from community
to community, but this does not mean that there are, or should or
can be, fixed, uniform national standards of precisely what appeals
to the "prurient interest" or is "patently offensive." These are
essentially questions of fact, and our Nation is simply too big and
too diverse for this Court to reasonably expect that such standards
could be articulated for all 50 States in a single formulation,
even assuming the prerequisite consensus exists. When triers of
fact are asked to decide whether "the average person, applying
contemporary community standards" would consider certain materials
"prurient," it would be unrealistic to require that the answer be
based on some abstract formulation. The adversary system, with lay
jurors as the usual ultimate factfinders in criminal prosecutions,
has historically permitted triers of fact to draw on the standards
of their community, guided always by limiting instructions on the
law. To require a State to structure obscenity proceedings around
evidence of a national "community standard" would be an
exercise in futility.

															As noted before, this case was tried on the theory that the
California obscenity statute sought to incorporate the tripartite
test of Memoirs. This, a "national" standard of First
Amendment protection enumerated by a plurality of this Court, was
correctly regarded at the time of trial as limiting state
prosecution under the controlling case Page 413 U. S. 31 law. The jury, however, was explicitly instructed that, in
determining whether the "dominant theme of the material as a whole
. . . appeals to the prurient interest," and, in determining
whether the material "goes substantially beyond customary limits of
candor and affronts contemporary community standards of decency,"
it was to apply "contemporary community standards of the State of
California."

															During the trial, both the prosecution and the defense assumed
that the relevant "community standards" in making the factual
determination of obscenity were those of the State of California,
not some hypothetical standard of the entire United States of
America. Defense counsel at trial never objected to the testimony
of the State's expert on community standards [ Footnote 12 ] or to the instructions of the trial
judge on "state-wide" standards. On appeal to the Appellate
Department, Superior Court of California, County of Orange,
appellant for the first time contended that application of state,
rather than national, standards violated the First and Fourteenth
Amendments.

															We conclude that neither the State's alleged failure to offer
evidence of "national standards," nor the trial court's charge that
the jury consider state community standards, were constitutional
errors. Nothing in the First Amendment requires that a jury must
consider hypothetical and unascertainable "national standards" when
attempting to determine whether certain materials are obscene as a
matter Page 413 U. S. 32 of fact. Mr. Chief Justice Warren pointedly commented in his
dissent in Jacobellis v. Ohio, supra, at 378 U. S.
200 :

															"It is my belief that, when the Court said in Roth that
obscenity is to be defined by reference to 'community standards,'
it meant community standards -- not a national standard, as is
sometimes argued. I believe that there is no provable 'national
standard.' . . . At all events, this Court has not been able to
enunciate one, and it would be unreasonable to expect local courts
to divine one."

															It is neither realistic nor constitutionally sound to read the
First Amendment as requiring that the people of Maine or
Mississippi accept public depiction of conduct found tolerable in
Las Vegas, or New York City. [ Footnote 13 ] Page 413 U. S. 33 See Hoyt v. Minnesota, 399
U.S. at 524 -525 (1970) (BLACKMUN, J., dissenting); Walker
v. Ohio, 398 U.S. at
434 (1970) (BURGER, C.J., dissenting); id. at 434-435
(Harlan, J., dissenting); Cain v. Kentucky, 397 U.
S. 319 (1970) (BURGER, C.J., dissenting); id. at 397 U. S. 319 -320
(Harlan, J., dissenting); United States v. Groner, 479
F.2d at 581-583; O'Meara & Shaffer, Obscenity in The Supreme
Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1,
6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S.
203 -204 (Harlan, J., dissenting); Roth v. United
States, supra, at 354 U. S.
505 -506 (Harlan, J., concurring and dissenting). People
in different States vary in their tastes and attitudes, and this
diversity is not to be strangled by the absolutism of imposed
uniformity. As the Court made clear in Mishkin v. New
York, 383 U.S. at 383 U. S.
508 -509, the primary concern with requiring a jury to
apply the standard of "the average person, applying contemporary
community standards" is to be certain that, so far as material is
not aimed at a deviant group, it will be judged by its impact on an
average person, rather than a particularly susceptible or sensitive
person -- or indeed a totally insensitive one. See Roth v.
United States, supra, at 354 U. S. 489 . Cf. the now discredited test in Regina v.
Hicklin, [1868] L.R. 3 Q.B. 360. We hold that the requirement
that the jury evaluate the materials with reference to
"contemporary Page 413 U. S. 34 standards of the State of California" serves this protective
purpose and is constitutionally adequate. [ Footnote 14 ] IV The dissenting Justices sound the alarm of repression. But, in
our view, 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
purposes in the historic struggle for freedom. It is a "misuse of
the great guarantees of free speech and free press. . . ." Breard v. Alexandria, 341 U.S. at 341 U. S. 645 .
The First Amendment protects works which, taken as a whole, have
serious literary, artistic, political, or scientific value,
regardless of whether the government or a majority of the people
approve of the ideas these works represent.

															"The protection given speech and press was fashioned to assure
unfettered interchange of ideas for the bringing about
of Page 413 U. S. 35 political and social changes desired by the people," Roth v. United States, supra, at 354 U. S. 484 (emphasis added). See Kois v. Wisconsin, 408 U.S. at 408 U. S.
230 -232; Thornhill v. Alabama, 310 U.S. at 310 U. S.
101 -102. But the public portrayal of hard-core sexual
conduct for its own sake, and for the ensuing commercial gain, is a
different matter. [ Footnote
15 ]

															There is no evidence, empirical or historical, that the stern
19th century American censorship of public distribution and display
of material relating to sex, see Roth v. United States,
supra, at 354 U. S.
482 -485, in any way limited or affected expression of
serious literary, artistic, political, or scientific ideas. On the
contrary, it is beyond any question that the era following Thomas
Jefferson to Theodore Roosevelt was an "extraordinarily vigorous
period" not just in economics and politics, but in belles
lettres and in "the outlying fields of social and political
philosophies." [ Footnote 16 ]
We do not see the harsh hand Page 413 U. S. 36 of censorship of ideas -- good or bad, sound or unsound -- and
"repression" of political liberty lurking in every state regulation
of commercial exploitation of human interest in sex.

															MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered
regimentation of our minds can ever be forestalled." Paris
Adult Theatre I v. Slaton, post, at 413 U. S. 110 (BRENNAN, J., dissenting). These doleful anticipations assume that
courts cannot distinguish commerce in ideas, protected by the First
Amendment, from commercial exploitation of obscene material.
Moreover, state regulation of hard-core pornography so as to make
it unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN
finds constitutionally permissible, has all the elements of
"censorship" for adults; indeed even more rigid enforcement
techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 690 .
[ Footnote 17 ] One can
concede that the "sexual revolution" of recent years may have had
useful byproducts in striking layers of prudery from a subject long
irrationally kept from needed ventilation. But it does not follow
that no regulation of patently offensive "hard core" materials is
needed or permissible; civilized people do not allow unregulated
access to heroin because it is a derivative of medicinal
morphlne.

															In sum, we (a) reaffirm the Roth holding that obscene
material is not protected by the First Amendment; (b) hold that
such material can be regulated by the States, subject to the
specific safeguards enunciated Page 413 U. S. 37 above, without a showing that the material is "utterly without
redeeming social value"; and (c) hold that obscenity is to be
determined by applying "contemporary community standards," see
Kois v. Wisconsin, supra, at 408 U. S. 230 ,
and Roth v. United States, supra, at 354 U. S. 489 ,
not "national standards." The judgment of the Appellate Department
of the Superior Court, Orange County, California, is vacated and
the case remanded to that court for further proceedings not
inconsistent with the First Amendment standards established by this
opinion. See United States v. 12 200-ft. Reels of Film,
post at 413 U. S. 130 n. 7. Vacated and remanded. [ Footnote 1 ]

															At the time of the commission of the alleged offense, which was
prior to June 25, 1969, §§ 311.2(a) and 311 of the California Penal
Code read in relevant part:

															"§ 311.2 Sending or bringing into state for sale or
distribution; printing, exhibiting, distributing or possessing
within state"

															"(a) Every person who knowingly: sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state prepares, publishes, prints,
exhibits, distributes, or offers to distribute, or has in his
possession with intent to distribute or to exhibit or offer to
distribute, any obscene matter is guilty of a misdemeanor. . .
."

															"§ 311. Definitions"

															"As used in this chapter: "

															"(a) 'Obscene' means that to the average person, applying
contemporary standards, the predominant appeal of the matter, taken
as a whole, is to prurient interest, i.e., a shameful or morbid
interest in nudity, sex, or excretion, which goes substantially
beyond customary limits of candor in description or representation
of such matters and is matter which is utterly without redeeming
social importance."

															"(b) 'Matter' means any book, magazine, newspaper, or other
printed or written material or any picture, drawing, photograph,
motion picture, or other pictorial representation or any statue or
other figure, or any recording, transcription or mechanical,
chemical or electrical reproduction or any other articles,
equipment, machines or materials."

															"(c) 'Person' means any individual, partnership, firm,
association, corporation, or other legal entity."

															"(d) 'Distribute' means to transfer possession of, whether with
or without consideration."

															"(e) 'Knowingly' means having knowledge that the matter is
obscene."

															Section 311(e) of the California Penal Code, supra, was
amended on June 25, 1969, to read as follows:

															"(e) 'Knowingly' means being aware of the character of the
matter."

															Cal. Amended Stats.1969, c. 249, § 1, p. 598. Despite
appellant's contentions to the contrary, the record indicates that
the new § 311(e) was not applied ex post facto to his
case, but only the old § 311(e) as construed by state decisions
prior to the commission of the alleged offense. See People v.
Pinkus, 256 Cal. App. 2d 941, 948-950, 63 Cal. Rptr. 680,
685-686 (App. Dept., Superior Ct., Los Angeles, 1967); People
v. Campise, 242 Cal. App. 2d 905, 914, 51 Cal. Rptr. 815, 821
(App.Dept., Superior Ct., San Diego, 1966). Cf. Bouie v. City
of Columbia, 378 U. S. 347 (1964). Nor did § 311.2, supra, as applied, create any
"direct, immediate burden on the performance of the postal
functions," or infringe on congressional commerce powers under Art.
I, § 8, cl. 3. Roth v. United States, 354 U.
S. 476 , 354 U. S. 494 (1957), quoting Railway Mail Assn. v. Corsi, 326 U. S.
88 , 326 U. S. 96 (1945). See also Mishkin v. New York, 383 U.
S. 502 , 383 U. S. 506 (1966); Smith v. California, 361 U.
S. 147 , 361 U. S.
150 -152 (1959).

															[ Footnote 2 ]

															This Court has defined "obscene material" as "material which
deals with sex in a manner appealing to prurient interest," Roth v. United States, supra, at 354 U. S. 487 ,
but the Roth definition does not reflect the precise
meaning of "obscene" as traditionally used in the English language.
Derived from the Latin obscaenus ob, to, plus caenum, filth, "obscene" is defined in the Webster's Third
New International Dictionary (Unabridged 1969) as

															"1a: disgusting to the senses . . . b: grossly repugnant to the
generally accepted notions of what is appropriate . . . 2:
offensive or revolting as countering or violating some ideal or
principle."

															The Oxford English Dictionary (1933 ed.) gives a similar
definition, "[o]ffensive to the senses, or to taste or refinement;
disgusting, repulsive, filthy, foul, abominable, loathsome."

															The material we are discussing in this case is more accurately
defined as "pornography" or "pornographic material." "Pornography"
derives from the Greek (porne, harlot, and graphos, writing). The
word now means

															"1: a description of prostitutes or prostitution 2: a depiction
(as in writing or painting) of licentiousness or lewdness: a
portrayal of erotic behavior designed to cause sexual
excitement."

															Webster's Third New International Dictionary, supra. Pornographic material which is obscene forms a sub-group of all
"obscene" expression, but not the whole, at least as the word
"obscene" is now used in our language. We note, therefore, that the
words "obscene material," as used in this case, have a specific
judicial meaning which derives from the Roth case, i.e., obscene material "which deals with sex." Roth,
supra, at 354 U. S. 487 . See also ALI Model Penal Code § 251.4(1) "Obscene
Defined." (Official Draft 1962.)

															[ Footnote 3 ]

															In the absence of a majority view, this Court was compelled to
embark on the practice of summarily reversing convictions for the
dissemination of materials that, at least five members of the
Court, applying their separate tests, found to be protected by the
First Amendment. Redrup v. New York, 386 U.
S. 767 (1967). Thirty-one cases have been decided in
this manner. Beyond the necessity of circumstances, however, no
justification has ever been offered in support of the Redrup "policy." See Walker v. Ohio, 398 U.S. at 398 U. S. 434 -435
(1970) (dissenting opinions of BURGER, C.J., and Harlan, J.). The Redrup procedure has cast us in the role of an
unreviewable board of censorship for the 50 States, subjectively
judging each piece of material brought before us.

															[ Footnote 4 ] See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v. Slaton, post, p. 413 U. S.
73 .

															[ Footnote 5 ]

															As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 200 (1964):

															"For all the sound and fury that the Roth test has
generated, it has not been proved unsound, and I believe that we
should try to live with it -- at least until a more satisfactory
definition is evolved. No government -- be it federal, state, or
local -- should be forced to choose between repressing all
material, including that within the realm of decency, and allowing
unrestrained license to publish any material, no matter how vile.
There must be a rule of reason in this as in other areas of the
law, and we have attempted in the Roth case to provide
such a rule."

															[ Footnote 6 ] See, e.g., Oregon Laws 1971, c. 743, Art. 29, §§
255-262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216, 1972 Hawaii
Session Laws, Act 9, c. 12, pt.. II, pp. 126-129, as examples of
state laws directed at depiction of defined physical conduct, as
opposed to expression. Other state formulations could be equally
valid in this respect. In giving the Oregon and Hawaii statutes as
examples, we do not wish to be understood as approving of them in
all other respects nor as establishing their limits as the extent
of state power.

															We do not hold, as MR. JUSTICE BRENNAN intimates, that all
States other than Oregon must now enact new obscenity statutes.
Other existing state statutes, as construed heretofore or
hereafter, may well be adequate. See United States v. 12
200-ft. Reel of Film, post, at 413 U. S. 130 n. 7.

															[ Footnote 7 ]

															"A quotation from Voltaire in the flyleaf of a book will not
constitutionally redeem an otherwise obscene publication. . . ." Kois v. Wisconsin, 408 U. S. 229 , 408 U. S. 231 (1972). See Memoirs v. Massachusetts, 383 U.
S. 413 , 383 U. S. 461 (1966) (WHITE, J., dissenting). We also reject, as a constitutional
standard, the ambiguous concept of "social importance." See
id. at 383 U. S. 462 (WHITE, J., dissenting).

															[ Footnote 8 ]

															Although we are not presented here with the problem of
regulating lewd public conduct itself, the States have greater
power to regulate nonverbal, physical conduct than to suppress
depictions or descriptions of the same behavior. In United
States v. O'Brien, 391 U. S. 367 , 391 U. S. 377 (1968), a case not dealing with obscenity, the Court held a State
regulation of conduct which itself embodied both speech and
nonspeech elements to be

															"sufficiently justified if . . . it furthers an important or
substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest." See California v. LaRue, 409 U.
S. 109 , 409 U. S.
117 -118 (1972).

															[ Footnote 9 ]

															The mere fact juries may reach different conclusions as to the
same material does not mean that constitutional rights are
abridged. As this Court observed in Roth v. United States, 354 U.S. at 354 U. S. 492 n. 30,

															"it is common experience that different juries may reach
different results under any criminal statute. That is one of the
consequences we accept under our jury system. Cf. Dunlop v.
United States, 165 U. S. 486 , 165 U. S.
499 -500."

															[ Footnote 10 ]

															As MR. JUSTICE BRENNAN stated for the Court in Roth v.
United States, supra at 354 U. S.
491 -492:

															"Many decisions have recognized that these terms of obscenity
statutes are not precise. [Footnote omitted.] This Court, however,
has consistently held that lack of precision is not itself
offensive to the requirements of due process. '. . . [T]he
Constitution does not require impossible standards;' all that is
required is that the language 'conveys sufficiently definite
warning as to the proscribed conduct when measured by common
understanding and practices. . . .' United States v.
Petrillo, 332 U. S. 1 , 332 U. S.
7 -8. These words, applied according to the proper
standard for judging obscenity, already discussed, give adequate
warning of the conduct proscribed and mark"

															". . . boundaries sufficiently distinct for judges and juries
fairly to administer the law. . . . That there may be marginal
cases in which it is difficult to determine the side of the line on
which a particular fact situation falls is no sufficient reason to
hold the language too ambiguous to define a criminal offense. . .
."

															" Id. at 332 U. S. 7 . See also United
States v. Harriss, 347 U. S. 612 , 347 U. S.
624 , n. 15; Boyce Motor Lines, Inc. v. United
States, 342 U. S. 337 , 342 U. S.
340 ; United States v. Ragen, 314 U. S.
513 , 314 U. S. 523 -524; United States v. Wurzbach, 280 U. S.
396 ; Hygrade Provision Co. v. Sherman, 266 U. S.
497 ; Fox v. Washington, 236 U. S.
273 ; Nash v. United States, 229 U. S.
373 ."

															[ Footnote 11 ]

															We must note, in addition, that any assumption concerning the
relative burdens of the past and the probable burden under the
standards now adopted is pure speculation.

															[ Footnote 12 ]

															The record simply does not support appellant's contention,
belatedly raised on appeal, that the State's expert was unqualified
to give evidence on California "community standards." The expert, a
police officer with many years of specialization in obscenity
offenses, had conducted an extensive state-wide survey and had
given expert evidence on 26 occasions in the year prior to this
trial. Allowing such expert testimony was certainly not
constitutional error. Cf. United States v. Augenblick, 393 U. S. 348 , 393 U. S. 356 (1969).

															[ Footnote 13 ]

															In Jacobellis v. Ohio, 378 U.
S. 184 (1964), two Justices argued that application of
"local" community standards would run the risk of preventing
dissemination of materials in some places because sellers would be
unwilling to risk criminal conviction by testing variations in
standards from place to place. Id. at 378 U. S.
193 -195 (opinion of BRENNAN, J., joined by Goldberg,
J.). The use of "national" standards, however, necessarily implies
that materials found tolerable in some places, but not under the
"national" criteria, will nevertheless be unavailable where they
are acceptable. Thus, in terms of danger to free expression, the
potential for suppression seems at least as great in the
application of a single nationwide standard as in allowing
distribution in accordance with local tastes, a point which Mr.
Justice Harlan often emphasized. See Roth v. United
States, 354 U.S. at 354 U. S.
506 .

															Appellant also argues that adherence to a "national standard" is
necessary "in order to avoid unconscionable burdens on the free
flow of interstate commerce." As noted supra at 413 U. S. 18 n.
1, the application of domestic state police powers in this case did
not intrude on any congressional powers under Art. I, § 8, cl. 3,
for there is no indication that appellant's materials were ever
distributed interstate. Appellant's argument would appear without
substance in any event. Obscene material may be validly regulated
by a State in the exercise of its traditional local power to
protect the general welfare of its population despite some possible
incidental effect on the flow of such materials across state lines. See, e.g., Head v. New Mexico Board, 374 U.
S. 424 (1963); Huron Portland Cement Co. v.
Detroit, 362 U. S. 440 (1960); Breard v. Alexandria, 341 U.
S. 622 (1951); H. P. Hood & Sons v. Du
Mond, 336 U. S. 525 (1949); Southern Pacific Co. v. Arizona, 325 U.
S. 761 (1945); Baldwin v. G.A.F. Seelig, Inc., 294 U. S. 511 (1935); Sligh v. Kirkwood, 237 U. S.
52 (1915).

															[ Footnote 14 ]

															Appellant's jurisdictional statement contends that he was
subjected to "double jeopardy" because a Los Angeles County trial
judge dismissed, before trial, a prior prosecution based on the
same brochures, but apparently alleging exposures at a different
time in a different setting. Appellant argues that, once material
has been found not to be obscene in one proceeding, the State is
"collaterally estopped" from ever alleging it to be obscene in a
different proceeding. It is not clear from the record that
appellant properly raised this issue, better regarded as a question
of procedural due process than a "double jeopardy" claim, in the
state courts below. Appellant failed to address any portion of his
brief on the merits to this issue, and appellee contends that the
question was waived under California law because it was improperly
pleaded at trial. Nor is it totally clear from the record before us
what collateral effect the pretrial dismissal might have under
state law. The dismissal was based, at least in part, on a failure
of the prosecution to present affirmative evidence required by
state law, evidence which was apparently presented in this case.
Appellant's contention, therefore, is best left to the California
courts for further consideration on remand. The issue is not, in
any event, a proper subject for appeal. See Mishkin v. New
York, 383 U. S. 502 , 383 U. S.
512 -514 (1966).

															[ Footnote 15 ]

															In the apt words of Mr. Chief Justice Warren, appellant in this
case was

															"plainly engaged in the commercial exploitation of the morbid
and shameful craving for materials with prurient effect. I believe
that the State and Federal Governments can constitutionally punish
such conduct. That is all that these cases present to us, and that
is all we need to decide." Roth v. United States, supra, at 354 U. S. 496 (concurring opinion).

															[ Footnote 16 ] See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th
century, Parrington observed

															"A new age had come and other dreams -- the age and the dreams
of a middle-class sovereignty. . . . From the crude and vast
romanticisms of that vigorous sovereignty emerged eventually a
spirit of realistic criticism, seeking to evaluate the worth of
this new America, and discover if possible other philosophies to
take the place of those which had gone down in the fierce battles
of the Civil War." Id. at 474. Cf. 2 S. Morison, H. Commager
& W. Leuchtenburg, The Growth of the American Republic 197-233
(6th ed.1969); Paths of American Thought 123-166, 203-290 (A.
Schlesinger & M. White ed.1963) (articles of Fleming, Lerner,
Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter);
and H. Wish, Society and Thought in Modern America 337-386
(1952).

															[ Footnote 17 ]

															"[W]e have indicated . . . that, because of its strong and
abiding interest in youth, a State may regulate the dissemination
to juveniles of, and their access to, material objectionable as to
them, but which a State clearly could not regulate as to adults. Ginsberg v. New York , . . .
[ 390 U.S.
629 (1968)]." Interstate Circuit, Inc. v. Dallas, 390 U.
S. 676 , 390 U. S. 690 (1968) (footnote omitted).

															MR. JUSTICE DOUGLAS, dissenting. I Today we leave open the way for California [ Footnote 2/1 ] to send a man to prison for
distributing brochures that advertise books and a movie under
freshly written standards defining obscenity which until today is
decision were never the part of any law.

															The Court has worked hard to define obscenity and concededly has
failed. In Roth v. United States, 354 U.
S. 476 , it ruled that "[o]bscene material is material
which deals with sex in a manner appealing to prurient interest." Id. at 354 U. S. 487 .
Obscenity, it was said, was rejected by the First Amendment because
it is "utterly without redeeming Page 413 U. S. 38 social importance." Id. at 354 U. S. 484 .
The presence of a "prurient interest" was to be determined by
"contemporary community standards." Id. at 354 U. S. 489 .
That test, it has been said, could not be determined by one
standard here and another standard there, Jacobellis v.
Ohio, 378 U. S. 184 , 378 U. S. 194 ,
but "on the basis of a national standard." Id. at 378 U. S. 195 .
My Brother STEWART, in Jacobellis, commented that the
difficulty of the Court in giving content to obscenity was that it
was "faced with the task of trying to define what may be
indefinable." Id. at 378 U. S.
197 .

															In Memoirs v. Massachusetts, 383 U.
S. 413 , 383 U. S. 418 ,
the Roth test was elaborated to read as follows:

															"[T]hree elements must coalesce: it must be established that (a)
the dominant theme of the material taken as a whole appeals to a
prurient interest in sex; (b) the material is patently offensive
because it affronts contemporary community standards relating to
the description or representation of sexual matters; and (c) the
material is utterly without redeeming social value."

															In Ginzburg v. United States, 383 U.
S. 463 , a publisher was sent to prison, not for the kind
of books and periodicals he sold, but for the manner in which the
publications were advertised. The "leer of the sensualist" was said
to permeate the advertisements. Id. at 383 U. S. 468 .
The Court said,

															"Where the purveyor's sole emphasis is on the sexually
provocative aspects of his publications, that fact may be decisive
in the determination of obscenity." Id. at 383 U. S. 470 .
As Mr. Justice Black said in dissent,

															". . . Ginzburg . . . is now finally and authoritatively
condemned to serve five years in prison for distributing printed
matter about sex which neither Ginzburg nor anyone else could
possibly have known to be criminal." Id. at 383 U. S. 476 .
That observation by Mr. Justice Black is underlined by the fact
that the Ginzburg decision was five to four. Page 413 U. S. 39 A further refinement was added by Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 641 ,
where the Court held that "it was not irrational for the
legislature to find that exposure to material condemned by the
statute is harmful to minors."

															But even those members of this Court who had created the new and
changing standards of "obscenity" could not agree on their
application. And so we adopted a per curiam treatment of so-called
obscene publications that seemed to pass constitutional muster
under the several constitutional tests which had been formulated. See Redrup v. New York, 386 U. S. 767 .
Some condemn it if its "dominant tendency might be to deprave
or corrupt' a reader." [ Footnote
2/2 ] Others look not to the content of the book, but to whether
it is advertised "`to appeal to the erotic interests of
customers.'" [ Footnote 2/3 ] Some
condemn only "hard-core pornography," but even then a true
definition is lacking. It has indeed been said of that definition,
"I could never succeed in [defining it] intelligibly," but "I know
it when I see it." [ Footnote
2/4 ] Today we would add a new three-pronged test:

															"(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."

															Those are the standards we ourselves have written into the
Constitution. [ Footnote 2/5 ] Yet
how under these vague tests can Page 413 U. S. 40 we sustain convictions for the sale of an article prior to the
time when some court has declared it to be obscene?

															Today the Court retreats from the earlier formulations of the
constitutional test and undertakes to make new definitions. This
effort, like the earlier ones, is earnest and well intentioned. The
difficulty is that we do not deal with constitutional terms, since
"obscenity" is not mentioned in the Constitution or Bill of Rights.
And the First Amendment makes no such exception from "the press"
which it undertakes to protect nor, as I have said on other
occasions, is an exception necessarily implied, for there was no
recognized exception to the free press at the time the Bill of
Rights was adopted which treated "obscene" publications differently
from other types of papers, magazines, and books. So there are no
constitutional guidelines for deciding what is and what is not
"obscene." The Court is at large because we deal with tastes and
standards of literature. What shocks me may Page 413 U. S. 41 be sustenance for my neighbor. What causes one person to boil up
in rage over one pamphlet or movie may reflect only his neurosis,
not shared by others. We deal here with a regime of censorship
which, if adopted, should be done by constitutional amendment after
full debate by the people.

															Obscenity cases usually generate tremendous emotional outbursts.
They have no business being in the courts. If a constitutional
amendment authorized censorship, the censor would probably be an
administrative agency. Then criminal prosecutions could follow as,
if, and when publishers defied the censor and sold their
literature. Under that regime, a publisher would know when he was
on dangerous ground. Under the present regime -- whether the old
standards or the new ones are used -- the criminal law becomes a
trap. A brand new test would put a publisher behind bars under a
new law improvised by the courts after the publication. That was
done in Ginzburg, and has all the evils of an ex post
facto law.

															My contention is that, until a civil proceeding has placed a
tract beyond the pale, no criminal prosecution should be sustained.
For no more vivid illustration of vague and uncertain laws could be
designed than those we have fashioned. As Mr. Justice Harlan has
said:

															"The upshot of all this divergence in viewpoint is that anyone
who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would
find himself in utter bewilderment." Interstate Circuit, Inc. v. Dallas, 390 U.
S. 676 , 390 U. S.
707 .

															In Bouie v. City of Columbia, 378 U.
S. 347 , we upset a conviction for remaining on property
after being asked to leave, while the only unlawful act charged by
the statute was entering. We held that the defendants had received
no "fair warning, at the time of their conduct" Page 413 U. S. 42 while on the property "that the act for which they now stand
convicted was rendered criminal" by the state statute. Id. at 378 U. S. 355 .
The same requirement of "fair warning" is due here, as much as in Bouie. The latter involved racial discrimination; the
present case involves rights earnestly urged as being protected by
the First Amendment. In any case -- certainly when constitutional
rights are concerned -- we should not allow men to go to prison or
be fined when they had no "fair warning" that what they did was
criminal conduct. II If a specific book, play, paper, or motion picture has in a
civil proceeding been condemned as obscene and review of that
finding has been completed, and thereafter a person publishes,
shows, or displays that particular book or film, then a vague law
has been made specific. There would remain the underlying question
whether the First Amendment allows an implied exception in the case
of obscenity. I do not think it does, [ Footnote 2/6 ] and my views Page 413 U. S. 43 on the issue have been stated over and over again. [ Footnote 2/7 ] But at least a criminal
prosecution brought at that juncture would not violate the
time-honored "void for vagueness" test. [ Footnote 2/8 ]

															No such protective procedure has been designed by California in
this case. Obscenity -- which even we cannot define with precision
-- is a hodge-podge. To send Page 413 U. S. 44 men to jail for violating standards they cannot understand,
construe, and apply is a monstrous thing to do in a Nation
dedicated to fair trials and due process. III While the right to know is the corollary of the right to speak
or publish, no one can be forced by government to listen to
disclosure that he finds offensive. That was the basis of my
dissent in Public Utilities Comm'n v. Pollak, 343 U.
S. 451 , 343 U. S. 467 ,
where I protested against making streetcar passengers a "captive"
audience. There is no "captive audience" problem in these obscenity
cases. No one is being compelled to look or to listen. Those who
enter newsstands or bookstalls may be offended by what they see.
But they are not compelled by the State to frequent those places;
and it is only state or governmental action against which the First
Amendment, applicable to the States by virtue of the Fourteenth,
raises a ban.

															The idea that the First Amendment permits government to ban
publications that are "offensive" to some people puts an ominous
gloss on freedom of the press. That test would make it possible to
ban any paper or any journal or magazine in some benighted place.
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." Terminiello v.
Chicago, 337 U. S. 1 , 337 U. S. 4 . The
idea that the First Amendment permits punishment for ideas that are
"offensive" to the particular judge or jury sitting in judgment is
astounding. No greater leveler of speech or literature has ever
been designed. To give the power to the censor, as we do today, is
to make a sharp and radical break with the traditions of a free
society. The First Amendment was not fashioned as a vehicle for Page 413 U. S. 45 dispensing tranquilizers to the people. Its prime function was
to keep debate open to "offensive" as well as to "staid" people.
The tendency throughout history has been to subdue the individual
and to exalt the power of government. The use of the standard
"offensive" gives authority to government that cuts the very vitals
out of the First Amendment. [ Footnote
2/9 ] As is intimated by the Court's opinion, the materials
before us may be garbage. But so is much of what is said in
political campaigns, in the daily press, on TV, or over the radio.
By reason of the First Amendment -- and solely because of it --
speakers and publishers have not been threatened or subdued because
their thoughts and ideas may be "offensive" to some.

															The standard "offensive" is unconstitutional in yet another way.
In Coates v. City of Cincinnati, 402 U.
S. 611 , we had before us a municipal ordinance that made
it a crime for three or more persons to assemble on a street and
conduct themselves "in a manner annoying to persons Page 413 U. S. 46 passing by." We struck it down, saying:

															"If three or more people meet together on a sidewalk or street
corner, they must conduct themselves so as not to annoy any police
officer or other person who should happen to pass by. In our
opinion, this ordinance is unconstitutionally vague because it
subjects the exercise of the right of assembly to an
unascertainable standard, and unconstitutionally broad because it
authorizes the punishment of constitutionally protected
conduct."

															"Conduct that annoys some people does not annoy others. Thus,
the ordinance is vague not in the sense that it requires a person
to conform his conduct to an imprecise but comprehensive normative
standard, but rather in the sense that no standard of conduct is
specified at all." Id. at 402 U. S.
614 .

															How we can deny Ohio the convenience of punishing people who
"annoy" others and allow California power to punish people who
publish materials "offensive" to some people is difficult to square
with constitutional requirements.

															If there are to be restraints on what is obscene, then a
constitutional amendment should be the way of achieving the end.
There are societies where religion and mathematics are the only
free segments. It would be a dark day for America if that were our
destiny. But the people can make it such if they choose to write
obscenity into the Constitution and define it.

															We deal with highly emotional, not rational, questions. To many,
the Song of Solomon is obscene. I do not think we, the judges, were
ever given the constitutional power to make definitions of
obscenity. If it is to be defined, let the people debate and decide
by a constitutional amendment what they want to ban as obscene and
what standards they want the legislatures and the courts to apply.
Perhaps the people will decide that the path towards a mature,
integrated society requires Page 413 U. S. 47 that all ideas competing for acceptance must have no censor.
Perhaps they will decide otherwise. Whatever the choice, the courts
will have some guidelines. Now we have none except our own
predilections.

															[ Footnote 2/1 ]

															California defines "obscene matter" as

															"matter, taken as a whole, the predominant appeal of which to
the average person, applying contemporary standards, is to prurient
interest, i.e., a shameful or morbid interest in nudity,
sex, or excretion; and is matter which taken as a whole goes
substantially beyond customary limits of candor in description or
representation of such matters; and is matter which taken as a
whole is utterly without redeeming social importance."

															Calif. Penal Code § 311(a).

															[ Footnote 2/2 ] Roth v. United States, 354 U.
S. 476 , 354 U. S. 502 (opinion of Harlan, J.).

															[ Footnote 2/3 ] Ginzburg v. United States, 383 U.
S. 463 , 383 U. S.
467 .

															[ Footnote 2/4 ] Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 197 (STEWART, J., concurring).

															[ Footnote 2/5 ]

															At the conclusion of a two-year study, the U.S. Commission on
Obscenity and Pornography determined that the standards we have
written interfere with constitutionally protected materials:

															"Society's attempts to legislate for adults in the area of
obscenity have not been successful. Present laws prohibiting the
consensual sale or distribution of explicit sexual materials to
adults are extremely unsatisfactory in their practical application.
The Constitution permits material to be deemed 'obscene' for adults
only if, as a whole, it appeals to the 'prurient' interest of the
average person, is 'patently offensive' in light of 'community
standards,' and lacks 'redeeming social value.' These vague and
highly subjective aesthetic, psychological and moral tests do not
provide meaningful guidance for law enforcement officials, juries
or courts. As a result, law is inconsistently and sometimes
erroneously applied, and the distinctions made by courts between
prohibited and permissible materials often appear indefensible.
Errors in the application of the law and uncertainty about its
scope also cause interference with the communication of
constitutionally protected materials."

															Report of the Commission on Obscenity and Pornography 53
(1970).

															[ Footnote 2/6 ]

															It is said that "obscene" publications can be banned on
authority of restraints on communications incident to decrees
restraining unlawful business monopolies or unlawful restraints of
trade, Sugar Institute v. United States, 297 U.
S. 553 , 297 U. S. 597 ,
or communications respecting the sale of spurious or fraudulent
securities. Hall v. Geier-Jones Co., 242 U.
S. 539 , 242 U. S. 549 ; Caldwell v. Sioux Falls Stock Yards Co., 242 U.
S. 559 , 242 U. S. 567 ; Merrick v. Halsey & Co., 242 U.
S. 568 , 242 U. S. 584 .
The First Amendment answer is that, whenever speech and conduct are
brigaded -- as they are when one shouts "Fire" in a crowded theater
-- speech can be outlawed. Mr. Justice Black, writing for a
unanimous Court in Giboney v. Empire Storage Co., 336 U. S. 490 ,
stated that labor unions could be restrained from picketing a firm
in support of a secondary boycott which a State had validly
outlawed. Mr. Justice Black said:

															"It rarely has been suggested that the constitutional freedom
for speech and press extends its immunity to speech or writing used
as an integral part of conduct in violation of a valid criminal
statute. We reject the contention now." Id. at 336 U. S.
498 .

															[ Footnote 2/7 ] See United States v. 12 200-ft. Reels of Film, post, p. 413 U. S. 123 ; United States v. Orito, post, p. 413 U. S. 139 ; Kois v. Wisconsin, 408 U. S. 229 ; Byrne v. Karalexis, 396 U. S. 976 ,
977; Ginsberg v. New York, 390 U.
S. 629 , 390 U. S. 650 ; Jacobs v. New York, 388 U. S. 431 , 388 U. S. 436 ; Ginzburg v. United States, 383 U.
S. 463 , 383 U. S. 482 ; Memoirs v. Massachusetts, 383 U.
S. 413 , 383 U. S. 424 ; Bantam Books, Inc. v. Sullivan, 372 U. S.
58 , 372 U. S. 72 ; Times Film Corp. v. Chicago, 365 U. S.
43 , 365 U. S. 78 ; Smith v. California, 361 U. S. 147 , 361 U. S. 167 ; Kingsley Pictures Corp. v. Regents, 360 U.
S. 684 , 360 U. S. 697 ; Roth v. United States, 354 U. S. 476 , 354 U. S. 508 ; Kingsley Books, Inc. v. Brown, 354 U.
S. 436 , 354 U. S. 446 ; Superior Films, Inc. v. Department of Education, 346 U. S. 587 , 346 U. S. 588 ; Gelling v. Texas, 343 U. S. 60 .

															[ Footnote 2/8 ]

															The Commission on Obscenity and Pornography has advocated such a
procedure:

															" The Commission recommends the enactment, in all
jurisdictions which enact or retain provisions prohibiting the
dissemination of sexual materials to adults or young persons, of
legislation authorizing prosecutors to obtain declaratory judgments
as to whether particular materials fall within existing legal
prohibitions. . . . "

															"A declaratory judgment procedure . . . would permit prosecutors
to proceed civilly, rather than through the criminal process,
against suspected violations of obscenity prohibition. If such
civil procedures are utilized, penalties would be imposed for
violation of the law only with respect to conduct occurring after a
civil declaration is obtained. The Commission believes this course
of action to be appropriate whenever there is any existing doubt
regarding the legal status of materials; where other alternatives
are available, the criminal process should not ordinarily be
invoked against persons who might have reasonably believed, in good
faith, that the books or films they distributed were entitled to
constitutional protection, for the threat of criminal sanctions
might otherwise deter the free distribution of constitutionally
protected material."

															Report of the Commission on Obscenity and Pornography 63
(1970).

															[ Footnote 2/9 ]

															Obscenity law has had a capricious history:

															"The white slave traffic was first exposed by W. T. Stead in a
magazine article, 'The Maiden Tribute.' The English law did
absolutely nothing to the profiteers in vice, but put Stead in
prison for a year for writing about an indecent subject. When the
law supplies no definite standard of criminality, a judge, in
deciding what is indecent or profane, may consciously disregard the
sound test of present injury, and proceeding upon an entirely
different theory may condemn the defendant because his words
express ideas which are thought liable to cause bad future
consequences. Thus, musical comedies enjoy almost unbridled
license, while a problem play is often forbidden because opposed to
our views of marriage. In the same way, the law of blasphemy has
been used against Shelley's Queen Mab and the decorous promulgation
of pantheistic ideas on the ground that to attack religion is to
loosen the bonds of society and endanger the state. This is simply
a round-about modern method to make heterodoxy in sex matters and
even in religion a crime."

															Z. Chafee, Free Speech in the United States 151 (1942).

															MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR.
JUSTICE MARSHALL join, dissenting.

															In my dissent in Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73 ,
decided this date, I noted that I had no occasion to consider the
extent of state power to regulate the distribution of sexually
oriented material to juveniles or the offensive exposure of such
material to unconsenting adults. In the case before us, appellant
was convicted of distributing obscene matter in violation of
California Penal Code § 311.2, on the basis of evidence that he had
caused to be mailed unsolicited brochures advertising various books
and a movie. I need not now decide whether a statute might be drawn
to impose, within the requirements of the First Amendment, criminal
penalties for the precise conduct at issue here. For it is clear
that, under my dissent in Paris Adult Theatre I, the
statute under which the prosecution was brought is
unconstitutionally overbroad, and therefore invalid on its face. * "[T]he transcendent value to all society of constitutionally
protected expression is deemed to justify allowing 'attacks on
overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated
by a statute drawn with the requisite narrow specificity." Gooding v. Wilson, 405 U. S. 518 , 405 U. S. 521 (1972), quoting Page 413 U. S. 48 from Dombrowski v. Pfister, 380 U.
S. 479 , 380 U. S. 486 (1965). See also Baggett v. Bullitt, 377 U.
S. 360 , 377 U. S. 366 (1964); Coates v. City of Cincinnati, 402 U.
S. 611 , 402 U. S. 616 (1971); id. at 402 U. S.
619 -620 (WHITE, J., dissenting); United States v.
Raines, 362 U. S. 17 , 362 U. S. 21 -22
(1960); NAACP v. Button, 371 U. S. 415 , 371 U. S. 433 (1963). Since my view in Paris Adult Theatre I represents
a substantial departure from the course of our prior decisions, and
since the state courts have as yet had no opportunity to consider
whether a "readily apparent construction suggests itself as a
vehicle for rehabilitating the [statute] in a single prosecution," Dombrowski v. Pfister, supra, at 380 U. S. 491 ,
I would reverse the judgment of the Appellate Department of the
Superior Court and remand the case for proceedings not inconsistent
with this opinion. See Coates v. City of Cincinnati,
supra, at 402 U. S.
616 .

															* Cal. Penal Code § 311.2(a) provides that

															"Every person who knowingly: sends or causes to be sent, or
brings or causes to be brought, into this state for sale or
distribution, or in this state prepares, publishes, prints,
exhibits, distributes, or offers to distribute, or has in his
possession with intent to distribute or to exhibit or offer to
distribute, any obscene matter is guilty of a misdemeanor."

Summary:
In Miller v. California, the Supreme Court of the United States addressed the issue of state regulation of obscene material and provided guidelines for determining what constitutes obscene material that is not protected by the First Amendment.

The Court held that obscene material is not protected by the First Amendment and outlined a three-part test for determining obscenity:

1. The work, taken as a whole, must appeal to the prurient interest in sex;
2. The work must portray sexual conduct in a patently offensive way as specifically defined by applicable state law;
3. The work, taken as a whole, must lack serious literary, artistic, political, or scientific value.

The Court also held that the trier of fact must apply contemporary community standards in evaluating the material and rejected the "utterly without redeeming social value" test from an earlier case, Memoirs v. Massachusetts.

In this case, the Court reviewed the conviction of the appellant, who was found guilty of mailing unsolicited sexually explicit material in violation of a California statute. The Court vacated the conviction and remanded the case for further consideration in light of the new obscenity standards set forth in this decision.