RECOMMENDATION 7

Part: 
Three
Chapter: 
 

State legislatures should amend, if necessary, obscenity statutes containing the definitional requirement that material be "utterly without redeeming social value" in order to be obscene to conform with the current standard enunciated by the United States Supreme Court in Miller v. California.[150]

A minority of jurisdictions, including the State of California,[151] retain the requirement that material must be "utterly without redeeming social value" in order to be found obscene.[152]

This standard emanates from the case of Roth v. United States, and the later case of Memoirs v Massachusetts[153] in which a plurality of the Supreme Court held that a book alleged to be obscene cannot be proscribed unless it is found to be utterly without redeeming social value.[154] The court reversed an obscenity conviction involving John Cleland's book Memoirs of a Woman of Pleasure because the work possessed a "modicum" of social value.[155] The Memoirs test made it almost impossible to convict in obscenity cases.[156] When the Supreme Court decided Miller v. California,[157] a new obscenity test resulted.[158] Although the Court remained divided on basic philosophical grounds, not a single member of the Court voted to retain the Memoirs standard. (emphasis added). Writing for the Court in Miller Chief Justice Warren E. Burger said the standard formulated in Memoirs required proof of a negative, "a burden virtually impossible to discharge under our criminal standards of proof." (emphasis added).[159]

The Court also noted that the standard had even been abandoned by Justice William Brennan who authored the Court's opinion in Memoirs. To the extent that the Memoirs standard exists today, it makes prosecution of obscenity cases extremely difficult. To win acquittal on an obscenity charge, a defendant need only demonstrate some miniscule social value as opposed to the serious literary, artistic, political or scientific value required under Miller. The Memoirs standard is still the law in California[160] and has posed a major obstacle to successful obscenity prosecutions. Consequently, the legal problems attendant to prosecution may contribute to factors which the wholesale pornography industry is centered in the Los Angeles area, and produces most of the materials sold in the entire United States. The pornography industry in the area of Los Angeles earns at least $550 million a year[161] and produces eighty percent of the sexually explicit videotapes, eight millimeter films and novelties are produced there.[162]

The principle of Federalism protects the constitutional prerogative of the states to enact obscenity laws which embody standards less stringent than those approved by the United States Supreme Court in Miller. As Chief Justice Burger wrote in Paris Adult Theatre I v. Slaton[163]

The States, of course, may follow such a "laissez faire" policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction. See, United States v. Reidel, 402 U.S., at 357, 28 L. Ed. 2d 813; Memoirs v. Massachusetts, 383 U.S., at 462. 16 L. Ed. 2d 1(White, J., dissenting). "We do not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions." Griswold v. Connecticut, 381 U.S. 479, 482, 14 L. Ed. 2d 510, 85 S. Ct. 1678(1965). See, Ferguson v. Skrupa, 372 U.S., at 731, 10 L. Ed. 2d 93, 95 ALR 2d 1347(1963); DayBrite Lighting Inc. v. Missouri, 342 U.S. 421, 423, 96 L. Ed. 469, 72 S. Ct. 405(1952).[164]

Law enforcement officers in California blame the existing law for severely hampering their effectiveness in eliminating this activity.[165] A Los Angeles Police Department Captain testified, "We have pleaded with the state legislature ever since Miller came into being to adopt it."[166]

If states sincerely wish to provide an effective basis for law enforcement this change in standards is essential.

Notes

taken as a whole, the predominant appeal of which to the average person applying contemporary statewide standards, to a prurient interest, meaning 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 the description or representation of such matters; and is matter which, taken as a whole lacks significant literary, artistic, political, educational, or scientific value. (emphasis added)

The new law still does not contain the exact language of Miller and thus its constitutionality may be uncertain until any appeals through the individual system are completed.

  1. 413 U.S. 15 (1973).
  2. On April 14, 1986, the Governor of California signed into law Senate Bill 139 which amends the California obscenity law. The new law goes into effect in January of 1987, and defines obscene matter as material which
  3. 354 U.S., (1957), p. 476.
  4. 383 U.S., (1966), p. 413.
  5. 383 U.S., (1966), p. 413.
  6. Id., pp. 418-20.
  7. See, Miller v. California, 314 U.S. 15 (1973).
  8. Id.
  9. 413 U.S., (1973), p. 22; See, Chicago Hearing, Vol. I, Paul McGeady, p. 81.
  10. 159. 413 U.S., p. 22.
  11. See, supra note 151.
  12. Chicago Hearing, Vol. I. Donald Smith, p. 31.
  13. Id., p. 30.
  14. 413 U.S., (1973), p. 49.
  15. Id., p. 64.
  16. Id., p. 46; Los Angeles Hearing, Vol. I, James Docherty, p. 15.
  17. Los Angeles Hearing, Vol. I, James Docherty, p. 15.