413 U.S. 15 (1973)
The appellant conducted a mass mailing campaign advertising the sale of illustrated books and a film described as adult material.1 After a jury trial he was convicted under California Penal Code § 311.2(a) for knowingly distributing obscene matter based on the mailing of five unsolicited advertising brochures to a Newport Beach restaurant.2 The brochures contained explicit pictures and drawings depicting sexual activity and genitals.3
This case was tried on the theory that California's obscenity statute incorporated the tripartite Memoirs test and the jury was instructed to apply contemporary community standards of the State of California.4 Both parties at trial assumed the community standards were those of the State of California; defense counsel did not object to the state's expert testimony on community standards or to the judge's instruction.5 Appellant raised for the first time on appeal the contention that application of state rather than national standards violated the First and Fourteenth Amendments.6
The judgment of the Appellate Department of the Superior Court, Orange County, California, came before the Supreme Court of the United States for review as part of a group of obscenity cases in which the Court re-examined the standards for identifying obscene material that may be regulated by the States.7
Whether the Memoirs formulation requiring material to be utterly without redeeming social value should continue to govern obscenity determinations?8
Obscene material is not protected by the First Amendment. Regulation must be limited to works that depict or describe sexual conduct specifically defined by state law and that, taken as a whole, appeal to the prurient interest, portray sexual conduct in a patently offensive way, and lack serious literary, artistic, political, or scientific value. The Memoirs requirement that material be utterly without redeeming social value is rejected as unworkable.9
No. The established facts show the case was tried under the tripartite Memoirs test with the jury instructed accordingly. The Court determines that the third element proved unworkable because it required the prosecution to prove a negative. No Member of the Court supports its continuation.10
The Memoirs formulation should not continue to govern obscenity determinations.11
Related opinions on this issue
Justice Douglas dissents from the adoption of the new three-pronged test for obscenity. He argues that the test remains vague and will fail to provide publishers with fair notice before criminal sanctions attach. In his view, the criminal law should not trap publishers by convicting them after the fact under standards developed post hoc by the courts.
He advocates for a prior civil adjudication declaring the material obscene to give fair warning and prevent ex post facto effects. Absent such procedures, criminal prosecutions rest on standards so vague as to be inconsistent with due process.12
Whether the trier of fact in an obscenity case should apply contemporary community standards of the state rather than national standards?13
Fundamental First Amendment limitations do not vary from community to community. Questions of prurient appeal and patent offensiveness are essentially factual. They may be determined by reference to contemporary community standards of the state rather than hypothetical national standards.14
Yes. The jury received an instruction to apply contemporary community standards of the State of California in assessing whether the advertising brochures appealed to the prurient interest or depicted sexual conduct in a patently offensive manner.15 Both the prosecution and the defense conducted the trial on the premise that the state community standards were those of California.16 Defense counsel did not object to the expert testimony concerning state community standards or to the trial judge's instructions on that point.17
These facts establish that the state community standards instruction is constitutionally adequate under the First Amendment.18
The trier of fact in an obscenity case should apply contemporary community standards of the state rather than national standards.19
Whether the First Amendment permits states to regulate material that depicts or describes sexual conduct in a patently offensive way and lacks serious literary, artistic, political, or scientific value?20
A state may regulate works that depict or describe sexual conduct specifically defined by applicable state law. The work, taken as a whole, must appeal to the prurient interest, portray sexual conduct in a patently offensive way, and lack serious literary, artistic, political, or scientific value. The statute must supply fair notice through specific definitions.21
Yes. Under the standard announced, a state may regulate works that depict or describe sexual conduct specifically defined by applicable state law. The brochures at issue contained explicit pictures and drawings depicting sexual activity and genitals and were distributed through unsolicited mailings to a restaurant.22 The public portrayal of hard-core sexual conduct for its own sake and for commercial gain is different and may be regulated consistent with the First Amendment under the safeguards described.23
The First Amendment permits states to regulate material that depicts or describes sexual conduct in a patently offensive way and lacks serious literary, artistic, political, or scientific value.24
Related opinions on this issue
Justice Brennan determines that the California statute under which the appellant was prosecuted for mailing unsolicited brochures is unconstitutionally overbroad and invalid on its face.25 He does not decide whether a narrowly drawn statute might validly reach the precise conduct at issue in this case.26 The transcendent value of constitutionally protected expression justifies allowing facial attacks on overly broad statutes without requiring the challenger to show that his own conduct could not be regulated by a properly drawn statute.27
Because his view represents a significant departure from prior precedent, the state courts have not had an opportunity to attempt to construe or rehabilitate the statute. He would reverse the judgment of the Appellate Department and remand for proceedings consistent with his opinion in Paris Adult Theatre I.28
Whether appellate courts must conduct independent review of obscenity convictions to protect First Amendment values?29
If a state obscenity law is limited to specifically defined hard-core sexual conduct, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.30
Yes. The present conviction reached the Supreme Court as part of a group of obscenity cases requiring re-examination of the standards for identifying regulable obscene material.31 The Court performs independent appellate review of the constitutional claims arising from the application of the new standards to ensure that First Amendment values receive adequate protection through the safeguards described in the opinion.32
Appellate courts must conduct independent review of obscenity convictions to protect First Amendment values.33