 Marvin Miller, was arrested for violating the California Penal
Code 311.2, when he distributed graphic material through the mail.
 Mail included brochures entitled, “Intercourse,” “Man-Woman,”
“Sex Orgies Illustrated,” and “An Illustrated History of
Pornography. Also he sent a film, “Marital Intercourse.”

 Los Angeles Judicial District
Court.
 Prosecutor: State of
California; Lawyer: Michael R.
Capizzi.
 Defendant: Marvin Miller;
Lawyer: Burton Marks.
 Decision: Guilty of violating
California Penal Code 311.2

 Appellate Department, Superior Court of California, County of
Orange.
 Law in question: Is the sale and distribution of obscene material by mail protected under the First Amendment.
 Reviewed the court case, Memoirs V. Massachusetts (1966), to determine their decision.
 Used Memoirs Test of Obscenity.
 Decision: Reaffirmed the Judicial Court’s ruling.

 Supreme Court of California. (Burger Court)
 Why did the court agree to hear this case: Are the decisions of the lower courts violating Miller’s right to the First Amendment, and therefore, an unconstitutional decision?
 Dissenting Opinion (1): Justice Douglas
 Dissenting Opinion (2): Justice Brennan
 Majority Opinion: Chief Justice Burger

 Justice Douglas
 No legitimate definition stating the standards of what qualifies an item to be obscene in the constitution or by any law.
 Memoirs Test is inaccurate because it states that obscene material is “utterly without redeeming social value,” no clear way to determine this statement

 Justice Brennan
 California Penal Code 311.2 is faulty because it states, “anyone who knowingly distributes lewd material is at fault,” and there is no clear way to know that material is lewd without clear specifications defining what obscene material is by law.

 Chief Justice Burger
 Court needs to regulate the distribution of graphic material so juveniles are not at risk of being exposed to explicit items.
 Court needs to create a clear, legitimate definition of obscenity by law. (Creation of Three-Prong
Obscenity Test)

 5 to 4 decision, in favor of Miller; not guilty
 Cannot convict an individual of a crime not clearly defined until after Three-Prong Obscenity Test was created.

 Creation of the Three-Prong Obscenity Test, first legitimate test of obscenity.
 Set the standards to define what is lewd material, so that other cases, like
Miller V. California (1973), can be clearly decided
 Three-Prong Obscenity Test: Obscene material is defined as, items that the average person, using community standards, finds that the material appeals to the prurient interest, work that depicts, in an offensive way, sexual conduct as stated by law, and items that obtain explicit characteristics. But lack literary, artistic, political, or scientific value.

 http://www.law.cornell.edu/supct/html/historics/USSC_CR_0413_0015_ZD.h
tml
 http://courses.cs.vt.edu/cs3604/lib/Censorship/3-prong-test.html
 http://www.studyblue.com/notes/note/n/miller-v-california/deck/2337362
 http://www.oyez.org/justices/william_o_douglas
 http://www.oyez.org/justices/william_j_brennan_jr
 http://www.oyez.org/justices/warren_e_burger
 http://www.oyez.org/cases/1970-1979/1971/1971_70_73