Libido: Naked Brunch: Un-Banning Books
Preserving America’s Erotic Heritage

How the courts of the United States came to extend
First Amendment guarantees to include pornography.

Part 6
Warren Burger and the Miller Standard

By Jack Hafferkamp

At the time the obscenity restriction-ending Redrup decision was handed down by the United States Supreme Court in 1967, America was in the midst of the vast social upheaval of the 1960s. Redrup (see installment 5) was a major blow to already on-the-run conservative forces. Another major jolt to the right came from the 1970 National Commission on Obscenity and Pornography. Its final report came as an ironic twist to conservative efforts to re-impose old-fashioned obscenity standards.

The Commission came into being at the urging of nervous conservative religious leaders such as New York’s Cardinal Francis Spellman and powerful conservative businessman Charles Keating, the savings-and-loan scam felon, and his Citizens for Decent Literature. President Lyndon Johnson appointed the commission, which had Congressional support from Senators Sam Ervin, whose long conservative career was capped his role on the Senate Watergate Hearings and then-vigorous Strom Thurmond. The commissioners charges were:

  • To analyze laws pertaining to the control of obscenity and pornography and to evaluate and recommend definitions of obscenity and pornography.
  • To ascertain the methods employed in the distribution of obscene and pornographic materials and the nature and volume of traffic in such materials.
  • To study the effect of obscenity and pornography on the public and minors in particular, and porn’s relationship to crime and other antisocial behavior.
  • And to recommend legislation, administrative or other actions to regulate pornography.

Commissioners worked for two years under the direction of a distinguished conservative law professor, William Dean Lockhart, and delivered their report to President Richard Nixon in 1970. The report was a nasty surprise to the people who ordered it up. Among it’s major conclusions: "...empirical research designed to clarify the question has found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent behavior among youth or adults. The Commission cannot conclude that exposure to erotic materials is a factor in the causation of sex crime or sex delinquency."

Conservative leaders were shocked when Commission General Counsel Paul Bender summed up the official conclusions this way:

The recommendations of the commission was for the abolition of all general laws that prohibit distribution of obscene materials of the normal consensual kind to adults, and that obscenity laws should just take the form of specific laws dealing with particular kinds of contexts: public displays, unsolicited mailings and distribution to children. The commission also recommended that the country get serious about sex education.

Richard Nixon was outraged. Vice President Spiro T. Angew defined the administration’s position in typically quoteworthy fashion: "As long as Richard Nixon is president," he said, "main street is not going to become smut alley." Chairman Lockhart was denounced as the anti-Christ. The United States Senate voted 60 to 5 to reject the commission’s recommendations to repeal the country’s obscenity laws. Senator Thurmond called it a "magna carta for pornographers." And thus was the commission’s report dispatched to oblivion.

Warren E. Burger and Earl Warren

The conservative counter movement was gaining steam. One big step took place in 1969. Warren E. Burger replaced Earl Warren as chief justice. Burger came in to office making it known he wanted to reverse the process that had opened America to free discussion of sexual issues.

During Burger’s early years the high-water mark of the Supreme Court’s liberalization involving freedom of individual choice in sexually related matters came in 1973 with Roe v. Wade, which made abortion a legal choice in the United States. But even as women, libertarians and progressives were their victory, changes were well underway in shifting the court’s liberal momentum. Also in 1973, the court experienced a sea change on the question of obscenity.

In that year the Supreme Court rejected the Brennan Doctrine-based Memoirs Standard in favor of the more restrictive Miller Standard we now live under. Considered together, ACLU President Nadine Strossen has written, those two decisions show that in 1973 "…the court decreased the government’s power to curb sexual conduct but it increased the government’s power to curb sexual expression."

The Miller case, Miller v. California, was not about Henry Miller; it was about Marvin Miller, a California publisher, who put out four illustrated books titled Man-Woman, Intercourse, Sex Orgies Illustrated, and An Illustrated History of Pornography and a film, Marital Intercourse. He was arrested for violating California’s anti-obscenity law. Under the new court 5-4 majority, Miller’s conviction was upheld.

Chief Justice Burger’s stated aim in the Miller case was to dismantle the single permissive national standard on obscenity and to open the decision making process to "contemporary community standards." This was, in effect, Burger’s end-around the court’s Redrup policy. His Miller decision was crafted to provide local community censors with the tools to prohibit works they do not want people seeing.

In his majority opinion Burger re-defined obscenity’s cutting edge in terms of serious literary, artistic, political or scientific value. That is, Burger rejected the Brennan Doctrine’s insistence that to be banned a work had to be utterly without redeeming value. To be protected under Burger’s new interpretation a work had to have serious value.

Burger’s thinking was that by limiting the power of the "without redeeming value" aspect of the three-pronged test, the new Miller case guidelines would give more power to the other two prongs of the three-pronged test: contemporary community standards and prurience. Stanford Law Professor Kathleen Sullivan once paraphrased the meaning of latter two standards under Miller as: prurient means it "turns you on" and patently offensive means "it grosses you out." It is through these two "windows" that today’s "decency" argument has entered the obscenity equation.

To underscore his own feeling on obscenity, Burger offered what he called "plain examples" of the kinds of things the states (or their local communities) could regulate for themselves. These included "patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." This kind of material, Burger concluded, was obscene hard-core pornography that goes beyond merely being arousing to appeal to the morbid or sick interest.

Larry Flynt

Burger’s notion of community standards allowed Harry Reams, co-star of Deep Throat to be convicted of obscenity in Memphis even though he had never been to Memphis. Burger’s approach allowed Al Goldstein, publisher of Screw to be prosecuted in Wichita, Kansas even though his magazine was not sold on Wichita newsstands. And so, too, did this approach make possible for Larry Flint, publisher of Hustler, to be convicted in Cincinnati of engaging in organized crime and pandering obscenity. And this was merely Warren Burger’s opening shot at what he saw as a new approach to the issue.

In the next year the Burger majority went further. Kaplan v. California, like 1967’s Redrup case, involved a non-illustrated book of fiction, Suite 69, sold to a detective. According to First Amendment attorney Edward de Grazia, the case "culminated in the announcement of a rationale for the censorship of books that harked back to the hoary Hicklin rule." And this message lurks in the background of today’s debate about porn on the internet. In his opinion on Kaplan Burger wrote:

For good or ill, a book has a continuing life. It is passed hand to hand, and we can take note of the tendency of widely circulated books of this category to reach the impressionable young and have a continuing impact. A state could reasonably regard the ‘hard core’ conduct described by Suite 69 as capable of encouraging or causing antisocial behavior, especially in its impact on young people. States need not wait until behavioral experts or educators can provide empirical data before enacting controls of commerce in obscene materials unprotected by the First Amendment or by a constitutional right to privacy. We have noted the power of a legislative body to enact such regulatory laws on the basis of unprovable assumptions.

In other words, according to the Burger approach to limiting the availability of pornography, communities need not wait for the facts to launch pre-emptive strikes against books that scare them!

Jack Nicholson, Candice Bergen and Art Garfunkel from Carnal Knowledge

Before he could do much more, Burger’s obscenity counter-revolution was cut short in 1974 with the case Jenkins v. Georgia. This case concerned the Mike Nichols-directed film Carnal Knowledge, which starred Jack Nicholson, Candice Bergen, Ann-Margret, and Art Garfunkel. It is a very good, artistically serious film about the sexual attitudes of two men who come to symbolize the generation that came of age at the end of World War II. A community in Georgia decided it didn’t care for the film’s morals and moved to have it banned as obscene. The Georgia Courts agreed.

Louis Nizer argued the case before the U.S. Supreme Court. In a sense the case was a replay of the issues in the Ulysses case because it involved an artistic work that included sexual elements in its elucidation of character. For the Justices of the United States Supreme Court case came to this: To vote to uphold the conviction would be to unplug the three-pronged approach to First Amendment Freedoms and allow community standards to become the primary criterion for determining obscenity.

On this point Burger’s new majority faltered. A strict local standards policy, the justices realized, would essentially allow the least tolerant local community to decide national standards. Instead of promoting many independent local standards of obscenity -- which Burger claimed he was in favor of -- this approach would re-impose a national standard -- one that would be drastically restrictive.

William Rhenquist

Even conservative justices were not willing to go that far, because it would have time-warped America directly back to the Comstock era. In his opinion future Chief Justice William Rhenquist wrote: "It would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is ‘patently offensive’."

The result was that the three-pronged test for obscenity stayed in place. And there is has remained, in uneasy stasis, since 1973.

Copyright 1996
All rights reserved

For information on reprinting this series for classroom use, please contact us at, or phone 800-495-1988

Part 1: Introduction
Part 2:From Benjamin Hicklin to Margaret Sanger

Part 3: The Little Review and James Joyce’s Ulysses
Part 4: Samuel Roth to Henry Miller
Part 5: The "Brennan Doctrine"
Next Month: Today, Which End Is Up?