Miller v. California
Encyclopedia
Miller v. California, was an important United States Supreme Court
case involving what constitutes unprotected obscenity
for First Amendment
purposes. The decision reiterated that obscenity
was not protected by the First Amendment and established the Miller test
for determining what constituted obscene material.
of one of the West Coast's
largest mail-order business
es dealing in sexually explicit material
, had conducted a mass mailing campaign
to advertise the sale of illustrated books, labeled "adult" material (also referred to in the vernacular as pornography
). He was found guilty in the Superior Court
of Orange County, California
(the state trial court
) of having violated California Penal Code
311.2 (a), a misdemeanor
, by knowingly distributing obscene material. The conviction was affirmed by the California Court of Appeals. As stated in the preface to Chief Justice
Warren Burger's majority opinion, the
According to the Court's decision, the materials in question primarily... consist[ed] 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. Since the Court's decision in Roth v. United States
, 354 U.S. 476 (1957), the Court had struggled to define what constituted constitutionally unprotected obscene material. Under the common law
rule that prevailed before Roth, articulated most famously in the 1868 English case
Regina v. Hicklin
, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. Thus, works by Balzac, Flaubert, James Joyce
, and D. H. Lawrence
were banned based on isolated passages and the effect they might have on children. Roth repudiated the Hicklin test
and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards
." Only material now meeting this test could be banned as "obscene."
Hugo Black
and William O. Douglas
, who were First Amendment literalists
, chafed at the Roth test and argued vigorously that the First Amendment protected obscene material. In subsequent cases the Court encountered tremendous difficulty in applying the Roth test, which did not define what it meant by "community standards." For example, in the 1964 case Jacobellis v. Ohio
, involving whether Ohio could ban the showing of a French film
called Les Amants (French for The Lovers), the Court ruled that the film was protected by the First Amendment, but could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions. In his concurring opinion
in Jacobellis, Justice Potter Stewart
, holding that Roth protected all obscenity except "hard-core pornography," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it
, and the motion picture involved in this case is not that."
In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of the Court further redefined the Roth test by holding unprotected only that which is "patently offensive" and "utterly without redeeming social value
," but no opinion in that case could command a majority of the Court either, and the state of the law in the obscenity field remained confused.
Pornography and sexually oriented publications proliferated as a result of the Court's holdings. The Sexual Revolution
of the 1960s flowered, and pressure increasingly came to the Court to allow leeway for state and local government
s to crack down on obscenity. During his ill-fated bid to become Chief Justice, Justice Abe Fortas
was attacked vigorously in Congress by conservatives such as Strom Thurmond
for siding with the Warren Court majority in liberalizing protection for pornography. In his 1968 presidential campaign
, Richard Nixon
campaigned against the Warren Court, pledging to appoint strict constructionists
to the Supreme Court.
Chief Justice Warren Burger came to the Court in 1969 believing that the Court's obscenity jurisprudence was misguided and governments should be given more leeway to ban obscene materials. In consideration of Miller in May and June 1972, Burger pushed successfully for a looser definition of "obscenity" which would allow local prosecutions, while Justice William J. Brennan, Jr.
, who by now also believed the Roth and Memoirs tests should be abandoned, led the charge for protecting all "obscenity" unless distributed to minors or exposed offensively to unconsenting adults. Decision of the case was contentious, and Miller was put over for reargument for October term 1972, and did not come down until June 1973, with Burger prevailing by a bare 5-4 vote.
. The Court ruled that it was not. It indicated that "obscene material is not protected by the First Amendment", thereby reaffirming part of Roth.
However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of expression," and said that "State statutes designed to regulate obscene materials must be carefully limited." The Court, in an attempt to set such limits devised a set of three criteria which must be met in order for a work to be legitimately subject to state regulation:
This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held that "all ideas having even the slightest redeeming social importance . . . have the full protection of the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without redeeming social importance."
The Miller decision vacated the Superior Court of California Appeals Court
decision and remanded the case to that Court for further proceedings consistent with the First Amendment standards established by the opinion.
, provided states with greater leeway to shut down adult movie
houses. Controversy arose over Millers "community standards" analysis, with critics charging that Miller encouraged forum shopping
to prosecute national producers of what some believe to be "obscenity" in locales where community standards differ substantially from the rest of the nation. For example, under the "community standards" prong of the Miller test, what might be considered "obscene" in Massachusetts
might not be considered "obscene" in Utah
, or the opposite might be true; in any event, prosecutors tend to bring charges in locales where they believe that they will prevail.
The "community standards" portion of the decision is of particular relevance with the rise of the Internet, as materials believed by some to be "obscene" can be accessed from anywhere in the nation, including places where there is a greater concern about "obscenity" than other areas of the nation.
In the years since Miller, many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and public nudity
laws. These types of actions have been upheld by the Supreme Court. Additionally, in 1982's New York v. Ferber
, the Court declared child pornography
is unprotected by the First Amendment, upholding the state of New York's ban on that material. In the recent Ashcroft v. Free Speech Coalition
case, however, the Court held that sexually explicit material that appears to depict minors might be constitutionally protected.
In American Booksellers Foundation for Free Expression v. Strickland
, plaintiffs American Booksellers Foundation for Free Expression, joined by various publishers, retailers, and web site operators, sued Ohio’s Attorney General and Ohio county prosecutors in United States District Court for the Southern District of Ohio. Plaintiffs alleged that Ohio Revised Code §2907.01(E) and (J), which prohibited the dissemination or display of “materials harmful to juveniles,” unconstitutionally violated both the First Amendment and the Commerce Clause of the Constitution. Plaintiffs specifically challenged the statute's definition of "harmful to juveniles," as well as the provisions governing internet dissemination of those materials. The court held the statute unconstitutional because the statute's definition of "material harmful to minors" did not comply with Miller. Defendants appealed the decision to the Sixth Circuit.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case involving what constitutes unprotected obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
for First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
purposes. The decision reiterated that obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
was not protected by the First Amendment and established the Miller test
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
for determining what constituted obscene material.
History
The appellant, Marvin Miller, operatorManagement
Management in all business and organizational activities is the act of getting people together to accomplish desired goals and objectives using available resources efficiently and effectively...
of one of the West Coast's
West Coast of the United States
West Coast or Pacific Coast are terms for the westernmost coastal states of the United States. The term most often refers to the states of California, Oregon, and Washington. Although not part of the contiguous United States, Alaska and Hawaii do border the Pacific Ocean but can't be included in...
largest mail-order business
Business
A business is an organization engaged in the trade of goods, services, or both to consumers. Businesses are predominant in capitalist economies, where most of them are privately owned and administered to earn profit to increase the wealth of their owners. Businesses may also be not-for-profit...
es dealing in sexually explicit material
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
, had conducted a mass mailing campaign
Political campaign
A political campaign is an organized effort which seeks to influence the decision making process within a specific group. In democracies, political campaigns often refer to electoral campaigns, wherein representatives are chosen or referendums are decided...
to advertise the sale of illustrated books, labeled "adult" material (also referred to in the vernacular as pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
). He was found guilty in the Superior Court
Superior Courts of California
The Superior Courts of California are the superior courts in the U.S. state of California with general jurisdiction to hear and decide any civil or criminal action which is not specially designated to be heard in some other court or before a government agency...
of Orange County, California
Orange County, California
Orange County is a county in the U.S. state of California. Its county seat is Santa Ana. As of the 2010 census, its population was 3,010,232, up from 2,846,293 at the 2000 census, making it the third most populous county in California, behind Los Angeles County and San Diego County...
(the state trial court
Trial court
A trial court or court of first instance is a court in which trials take place. Such courts are said to have original jurisdiction.- In the United States :...
) of having violated California Penal Code
California Penal Code
The Penal Code of California forms the basis for the application of criminal law in the American state of California. It was originally enacted in 1872 as one of the original four California Codes, and has been substantially amended and revised since then....
311.2 (a), a misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
, by knowingly distributing obscene material. The conviction was affirmed by the California Court of Appeals. As stated in the preface to Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren Burger's majority opinion, the
Appellant's conviction was specifically 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, CaliforniaNewport Beach, CaliforniaNewport Beach, incorporated in 1906, is a city in Orange County, California, south of downtown Santa Ana. The population was 85,186 at the 2010 census.The city's median family income and property values consistently place high in national rankings...
. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures and complained to the police.
According to the Court's decision, the materials in question primarily... consist[ed] 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. Since the Court's decision in Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
, 354 U.S. 476 (1957), the Court had struggled to define what constituted constitutionally unprotected obscene material. Under the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rule that prevailed before Roth, articulated most famously in the 1868 English case
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
Regina v. Hicklin
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...
, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. Thus, works by Balzac, Flaubert, James Joyce
James Joyce
James Augustine Aloysius Joyce was an Irish novelist and poet, considered to be one of the most influential writers in the modernist avant-garde of the early 20th century...
, and D. H. Lawrence
D. H. Lawrence
David Herbert Richards Lawrence was an English novelist, poet, playwright, essayist, literary critic and painter who published as D. H. Lawrence. His collected works represent an extended reflection upon the dehumanising effects of modernity and industrialisation...
were banned based on isolated passages and the effect they might have on children. Roth repudiated the Hicklin test
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...
and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards
Community standards
Community standards are local norms bounding acceptable conduct. Sometimes these standards can be itemized in a list that states the community's values and sets guidelines for participation in the community...
." Only material now meeting this test could be banned as "obscene."
Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
and William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
, who were First Amendment literalists
Strict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
, chafed at the Roth test and argued vigorously that the First Amendment protected obscene material. In subsequent cases the Court encountered tremendous difficulty in applying the Roth test, which did not define what it meant by "community standards." For example, in the 1964 case Jacobellis v. Ohio
Jacobellis v. Ohio
Jacobellis v. Ohio, , was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of a French film called The Lovers which the state had deemed obscene.Nico Jacobellis, manager of the Heights Art...
, involving whether Ohio could ban the showing of a French film
Cinema of France
The Cinema of France comprises the art of film and creative movies made within the nation of France or by French filmmakers abroad.France is the birthplace of cinema and was responsible for many of its early significant contributions. Several important cinematic movements, including the Nouvelle...
called Les Amants (French for The Lovers), the Court ruled that the film was protected by the First Amendment, but could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions. In his concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
in Jacobellis, Justice Potter Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
, holding that Roth protected all obscenity except "hard-core pornography," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it
I know it when I see it
The phrase "I know it when I see it" is a colloquial expression within the United States by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. The phrase was famously used by United States Supreme Court...
, and the motion picture involved in this case is not that."
In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of the Court further redefined the Roth test by holding unprotected only that which is "patently offensive" and "utterly without redeeming social value
Value system
A value system is a set of consistent ethic values and measures used for the purpose of ethical or ideological integrity. A well defined value system is a moral code.-Personal and communal:...
," but no opinion in that case could command a majority of the Court either, and the state of the law in the obscenity field remained confused.
Pornography and sexually oriented publications proliferated as a result of the Court's holdings. The Sexual Revolution
Sexual revolution
The sexual revolution was a social movement that challenged traditional codes of behavior related to sexuality and interpersonal relationships throughout the Western world from the 1960s into the 1980s...
of the 1960s flowered, and pressure increasingly came to the Court to allow leeway for state and local government
Local government
Local government refers collectively to administrative authorities over areas that are smaller than a state.The term is used to contrast with offices at nation-state level, which are referred to as the central government, national government, or federal government...
s to crack down on obscenity. During his ill-fated bid to become Chief Justice, Justice Abe Fortas
Abe Fortas
Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...
was attacked vigorously in Congress by conservatives such as Strom Thurmond
Strom Thurmond
James Strom Thurmond was an American politician who served as a United States Senator. He also ran for the Presidency of the United States in 1948 as the segregationist States Rights Democratic Party candidate, receiving 2.4% of the popular vote and 39 electoral votes...
for siding with the Warren Court majority in liberalizing protection for pornography. In his 1968 presidential campaign
United States presidential election, 1968
The United States presidential election of 1968 was the 46th quadrennial United States presidential election. Coming four years after Democrat Lyndon B. Johnson won in a historic landslide, it saw Johnson forced out of the race and Republican Richard Nixon elected...
, Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
campaigned against the Warren Court, pledging to appoint strict constructionists
Strict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
to the Supreme Court.
Chief Justice Warren Burger came to the Court in 1969 believing that the Court's obscenity jurisprudence was misguided and governments should be given more leeway to ban obscene materials. In consideration of Miller in May and June 1972, Burger pushed successfully for a looser definition of "obscenity" which would allow local prosecutions, while Justice William J. Brennan, Jr.
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
, who by now also believed the Roth and Memoirs tests should be abandoned, led the charge for protecting all "obscenity" unless distributed to minors or exposed offensively to unconsenting adults. Decision of the case was contentious, and Miller was put over for reargument for October term 1972, and did not come down until June 1973, with Burger prevailing by a bare 5-4 vote.
The decision
The question before the court was whether the sale and distribution of obscene material was protected under the First Amendment's guarantee of Freedom of SpeechFreedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
. The Court ruled that it was not. It indicated that "obscene material is not protected by the First Amendment", thereby reaffirming part of Roth.
However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of expression," and said that "State statutes designed to regulate obscene materials must be carefully limited." The Court, in an attempt to set such limits devised a set of three criteria which must be met in order for a work to be legitimately subject to state regulation:
- whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;
- whether the work depicts or describes, in a patently offensivePatently offensivePatently offensive is a term used in United States law regarding obscenity and the First Amendment.The phrase "patently offensive" first appeared in Roth v. United States, referring to any obscene acts or materials that are considered to be openly, plainly, or clearly visible as offensive to the...
way, sexual conduct or excretory functions specifically defined by applicable state lawState lawIn the United States, state law is the law of each separate U.S. state, as passed by the state legislature and adjudicated by state courts. It exists in parallel, and sometimes in conflict with, United States federal law. These disputes are often resolved by the federal courts.-See also:*List of U.S...
; and - "whether the work, taken as a whole, lacks serious literaryLiteratureLiterature is the art of written works, and is not bound to published sources...
, artArtArt is the product or process of deliberately arranging items in a way that influences and affects one or more of the senses, emotions, and intellect....
istic, politicalPoliticsPolitics is a process by which groups of people make collective decisions. The term is generally applied to the art or science of running governmental or state affairs, including behavior within civil governments, but also applies to institutions, fields, and special interest groups such as the...
, or scientificScienceScience is a systematic enterprise that builds and organizes knowledge in the form of testable explanations and predictions about the universe...
value."
This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held that "all ideas having even the slightest redeeming social importance . . . have the full protection of the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without redeeming social importance."
The Miller decision vacated the Superior Court of California Appeals Court
Superior Courts of California
The Superior Courts of California are the superior courts in the U.S. state of California with general jurisdiction to hear and decide any civil or criminal action which is not specially designated to be heard in some other court or before a government agency...
decision and remanded the case to that Court for further proceedings consistent with the First Amendment standards established by the opinion.
Effects of the decision
Davis provided states greater freedom in prosecuting alleged purveyors of "obscene" material because, for the first time since Roth, a majority of the Court agreed on a definition of "obscenity." Hundreds of "obscenity" prosecutions went forward after Miller, and the Supreme Court began denying review of these state actions after years of reviewing many "obscenity" convictions (over 60 appeared on the Court's docket for the 1971-72 term, pre-Miller). A companion case to Miller, Paris Adult Theatre I v. SlatonParis Adult Theatre I v. Slaton
Paris Adult Theatre I v. Slaton, . The U.S. Supreme Court upheld a state court's injunction against the showing of obscene films in a movie theatre restricted to consenting adults. The Court distinguished the case from Stanley v. Georgia, 394 U.S...
, provided states with greater leeway to shut down adult movie
Pornographic movie
Pornographic films are motion pictures with the purpose of promoting sexual arousal in the viewer, often featuring depictions of sexual activity. They are sold and rented out on DVD, shown through Internet and special channels and pay-per-view on cable and satellite, and in adult...
houses. Controversy arose over Millers "community standards" analysis, with critics charging that Miller encouraged forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
to prosecute national producers of what some believe to be "obscenity" in locales where community standards differ substantially from the rest of the nation. For example, under the "community standards" prong of the Miller test, what might be considered "obscene" in Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
might not be considered "obscene" in Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
, or the opposite might be true; in any event, prosecutors tend to bring charges in locales where they believe that they will prevail.
The "community standards" portion of the decision is of particular relevance with the rise of the Internet, as materials believed by some to be "obscene" can be accessed from anywhere in the nation, including places where there is a greater concern about "obscenity" than other areas of the nation.
In the years since Miller, many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and public nudity
Public nudity
Public nudity or nude in public refers to nudity not in an entirely private context. It refers to a person appearing nude in a public place or to be seen from a public place. It also includes nudity in a semi-public place, where the general public is free to enter, such as a shopping mall...
laws. These types of actions have been upheld by the Supreme Court. Additionally, in 1982's New York v. Ferber
New York v. Ferber
New York v. Ferber, , was a United States Supreme Court decision. The Court ruled unanimously that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity....
, the Court declared child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
is unprotected by the First Amendment, upholding the state of New York's ban on that material. In the recent Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition, , struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech." The case was brought against the Government by the Free Speech Coalition, a "California...
case, however, the Court held that sexually explicit material that appears to depict minors might be constitutionally protected.
In American Booksellers Foundation for Free Expression v. Strickland
American Booksellers Foundation for Free Expression v. Strickland
American Booksellers Foundation for Free Expression v. Strickland, 560 F.3d 443 , is a decision of the Sixth Circuit Court of Appeals involving a constitutional challenge—both facially and as-applied to internet communications—to an Ohio statute prohibiting the dissemination or display to juveniles...
, plaintiffs American Booksellers Foundation for Free Expression, joined by various publishers, retailers, and web site operators, sued Ohio’s Attorney General and Ohio county prosecutors in United States District Court for the Southern District of Ohio. Plaintiffs alleged that Ohio Revised Code §2907.01(E) and (J), which prohibited the dissemination or display of “materials harmful to juveniles,” unconstitutionally violated both the First Amendment and the Commerce Clause of the Constitution. Plaintiffs specifically challenged the statute's definition of "harmful to juveniles," as well as the provisions governing internet dissemination of those materials. The court held the statute unconstitutional because the statute's definition of "material harmful to minors" did not comply with Miller. Defendants appealed the decision to the Sixth Circuit.
See also
- List of United States Supreme Court cases, volume 413
- Sex-related court cases