430 U.S. 188 (1977)
Petitioners were charged with several counts of transporting obscene materials in interstate commerce, in violation of 18 U.S.C. § 1465, and with conspiracy to transport such materials, 18 U.S.C. § 371.1 The conduct that gave rise to the charges covered a period through February 27, 1973.2 Trial did not begin until the following October.3 Petitioner American News Co., Inc., was convicted only on the conspiracy charge. The other four petitioners were convicted of conspiracy and also on seven of the eight substantive counts.4
In the interim, on June 21, 1973, this Court decided Miller v. California, and its companion cases.5 Miller announced new standards for isolating hard core pornography from expression protected by the First Amendment.6 That these new standards would also guide the future interpretation of the federal obscenity laws was clear from United States v. 12 200-ft. Reels of Film, decided the same day as Miller.7
Petitioners argued in the District Court that they were entitled to jury instructions not under Miller, but under the more favorable formulation of Memoirs v. Massachusetts.8 They focused in particular on the third part of the Memoirs test.9 The District Court overruled these objections and instructed the jury under the Miller standards.10 Petitioners were convicted, and a divided Court of Appeals for the Sixth Circuit affirmed.11
The Supreme Court granted certiorari to resolve a conflict in the Circuits.12
Whether the standards announced in Miller v. California are to be applied retroactively to the potential detriment of a defendant in a criminal case?13
When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.14
The view of the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards prior to Miller.15 Miller marked a significant departure from Memoirs.16 It changed the third test from whether material is utterly without redeeming social value to whether the work lacks serious literary, artistic, political, or scientific value. This change expanded criminal liability.
The Due Process Clause precludes application of the Miller standards to the extent that those standards may impose criminal liability for conduct not punishable under Memoirs.17 Affected citizens lacked fair warning that the statute would be thus applied.
No. The petitioners' conduct that gave rise to the charges covered a period through February 27, 1973, and their trial began the following October after Miller was decided on June 21, 1973.18 At the time of their conduct the governing obscenity standard was the Memoirs formulation, under which material is protected unless utterly without redeeming social value.19 The district court nevertheless instructed the jury under the Miller standards, which the Court of Appeals affirmed.20 This retroactive application expanded the petitioners' criminal liability without fair warning and therefore violated the Due Process Clause of the Fifth Amendment in the same manner as an unforeseeable judicial enlargement of a criminal statute.21
The judgment is reversed and the case is remanded for further proceedings consistent with the opinion, under which the petitioners are entitled to jury instructions requiring acquittal unless the materials are found utterly without redeeming social value.22
Related opinions on this issue
Joined by Stewart And Marshall, Jj.
Justice Brennan joined the Court's holding that retroactive application of the Miller definition of obscenity to the potential detriment of a criminal defendant violates the Due Process Clause.23 He parted company with the majority on the appropriate remedy, however, because he adheres to the view that 18 U.S.C. § 1465 is clearly overbroad and unconstitutional on its face.24 For that reason he would simply reverse the convictions rather than remand for a new trial under Memoirs instructions.25
Justice Stevens agreed with the Court's opinion that the statute regulates expression and implicates First Amendment values, yet he concluded that the prosecution is constitutionally impermissible for three additional and independent reasons.26 The statute rests on the illogical premise that a person may be prosecuted for providing material that the recipient has a constitutional right to possess under Stanley v. Georgia.27 In addition, the current constitutional standards are so intolerably vague that evenhanded enforcement is a virtual impossibility.28
He therefore would not remand for retrial.29