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Writing for the majority, Chief Justice Warren Burger laid out the new, three-part test: 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; (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.

Burger explicitly rejected the Memoirs requirement that obscene material be found to be "utterly without redeeming social value," replacing it with the less stringent standard of lacking "serious literary, artistic, political, or scientific value." The Memoirs requirement, he wrote, created for prosecutors, "a burden virtually impossible to discharge under our criminal standards of proof." Even Justice Brennan, the author of the Memoirs opinion, abandoned the Memoirs as unworkable in his dissenting opinion to Miller's companion case, Paris Adult Theatre I v. Burger also rejected Jacobellis' requirement that the "contemporary community standards" used to evaluate whether something appeals to the "prurient interest" and is "patently offensive" must be national standards. pbs online some photos copyright © 2002 photodisc all rights reserved.

We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person's thoughts. This was the first time since the publication of the Roth opinion that a majority of the Court agreed on an obscenity standard.

To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. The case involved California's Obscenity Law, which criminalized the mailing of obscene material.

Instead, the jury may use the standards of the local community.

He wrote: 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 of fact. 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.

It was in this case that Justice Potter Stewart, in his concurring opinion, wrote the oft-quoted summation: "... 413 (1966) In 1965, the Massachusetts Supreme Judicial Court affirmed a lower court decision finding the erotic novel Fanny Hill, or Memoirs of a Woman of Pleasure was obscene.

[C]riminal laws in this area are constitutionally limited to hardcore pornography. The lower court had noted that the "social importance" element of the Roth test did not require that a book "must be unqualifiedly worthless before it can be deemed obscene." The U. Supreme Court reversed this decision, emphasizing that under Roth, material could not be deemed obscene unless it was "utterly without redeeming social value": 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. A book cannot be proscribed unless it is found to be utterly without redeeming social value.

In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Y., had been convicted under the law for selling two "girlie" magazines to a 16-year-old boy. In this case, sexually explicit films were discovered in defendant Eli Stanley's house by police, in the course of an unrelated investigation into his alleged bookmaking activities.

"a shameful or morbid interest in nudity, sex, or excretion." The Roth test, with minor refinements, was to remain the standard for determining obscenity until the 1973 decision in Miller v. However, the Roth decision ushered in an era of uncertainty and confusion; for the next 16 years there was never a majority of Justices who could agree on the proper standard for testing obscenity -- until Miller. Ohio 378 US 184 (1964) In Jacobellis, Justice Brennan elaborated on the Roth standard by clarifying that the "community standards" applicable to an obscenity determination were to be national, not local standards.