Document ID: A:\MILLER.TXT MILLER v. CALIFORNIA No. 70-73 SUPREME COURT OF THE UNITED STATES 413 U.S. 15; 93 S. Ct. 2607; 1973 U.S. LEXIS 149; 37 L. Ed. 2d 419; 1 Media L. Rep. 1441 January 18-19, 1972, Argued June 21, 1973, Decided SUBSEQUENT HISTORY: [***1] Reargued, November 7, 1972. PRIOR HISTORY: APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY DISPOSITION: Vacated and remanded. SYLLABUS: Appellant was convicted of mailing unsolicited sexually explicit material in vi e trial court instructed the jury to evaluate the materials by the contemporary community 1. Obscene material is not protected by the First Amendment. Roth v. United States, 35 y offensive way, sexual conduct specifically defined by the applicable state law; and, tak 2. The basic guidelines for the trier of fact must be: (a) whether "the [***2] averag he work depicts or describes, in a patently offensive way, sexual conduct specifically def law is thus limited, First Amendment values are adequately protected by ultimate independ 3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, 4. The jury may measure the essentially factual issues of prurient appeal and patent of COUNSEL: Burton Marks reargued the cause and filed a brief for appellant. Michael R. Capizzi reargued the cause for appellee. With him on the brief was Cecil Hi * Samuel Rosenwein, A. L. Wirin, Fred Okrand, Laurence R. Sperber, Melvin L. Wulf, and JUDGES: Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powel oined, post, p. 47. OPINIONBY: BURGER OPINION: [*16] [**2610] MR. CHIEF JUSTICE BURGER delivered the opinionof the Cour This is one of a group of "obscenity-pornography" cases being reviewed by the Court in allas, 390 U.S. 676, 704 [**2611] (1968) (concurring and dissenting). Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, ing obscene matter, n1 [*17] and the Appellate Department, Superior Court of Californ e unsolicited advertising brochures to be sent through the mail in an envelope addressed t mplained to the police. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 At the time of the commission of the alleged offense, which was prior to June 25, 19 "@ 311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, di "(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be sion with intent to distribute or to exhibit or offer to distribute, any obscene matter is "@ 311. Definitions "As used in this chapter: "(a) 'Obscene' means that to the average person, applying contemporary standards, the p ly beyond customary limits of candor in description or representation of such matters and "(b) 'Matter' means any book, magazine, newspaper, or other printed or written material , chemical or electrical reproduction or any other articles, equipment, machines or materi "(c) 'Person' means any individual, partnership, firm, association, corporation, or oth "(d) 'Distribute' means to transfer possession of, whether with or without consideratio "(e) 'Knowingly' means having knowledge that the matter is obscene." Section 311 (e) of the California Penal Code, supra, was amended on June 25, 1969, to r "(e) 'Knowingly' means being aware of the character of the matter." Cal. Amended Stats. 1969, c. 249, @ 1, p. 598. Despite appellant's contentions to the con commission of the alleged offense. See People v. Pinkus, 256 Cal. App. 2d 941, 948-950, Ct., San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U.S. 347 (1964). Nor did @ 311. 8, cl. 3. Roth v. United States, 354 U.S. 476, 494 (1957), quoting Railway Mail Assn. v. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***5] The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Ill marily they consist of pictures and drawings very explicitly depicting men and women [** I This case involves the application of a State's criminal obscenity statute to a situati materials. This Court has recognized that the States have a legitimate interest in prohib of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U.S. 557, 5 (1967); Jacobellis v. Ohio, 378 U.S. 184, 195 (1964). See Rabe v. Washington, 405 U.S. 313 95, 502 (1952); Breard v. Alexandria, 341 U.S. 622, 644-645 (1951); Kovacs v. Cooper, 336 , 343 U.S. 451, 464-465 (1952). It is in this context that we are called [*20] on to d hrough the Fourteenth Amendment. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 This Court has defined "obscene material" as "material which deals with sex in a man used in the English language. Derived from the Latin obscaenus, ob, to, plus caenum, fil erally accepted notions of what is appropriate . . . 2: offensive or revolting as counteri isgusting, repulsive, filthy, foul, abominable, loathsome." The material we are discussing in this case is more accurately defined as "pornography" titution 2: a depiction (as in writing or painting) of licentiousness or lewdness: a portr -group of all "obscene" expression, but not the whole, at least as the word "obscene" is n ase, i. e., obscene material "which deals with sex." Roth, supra, at 487. See also ALI Mod - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***7] The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but t tortured [**2613] history of the Court's obscenity decisions. In Roth v. United Sta he key to that holding was the Court's rejection of the claim that obscene materials were "All ideas having even the slightest redeeming social importance -- unorthodox ideas, c e they encroach upon the limited area of more important interests. But implicit in the hi Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572: "'. . . There are certain well-defined and narrowly limited classes of speech, the prev at such utterances are no essential part of any exposition of ideas, and are of such sligh [Emphasis by Court in Roth opinion.] "We hold that obscenity is not within the area of constitutionally protected speech or pre Nine years later, in Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court veered s h definition "as elaborated in subsequent cases, three elements must coalesce: it must be established t nts contemporary community standards relating to the description or representation of sexu The sharpness of the break with Roth, represented by the third element of the Memoirs test "The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly wor nal). While Roth presumed "obscenity" to be "utterly without redeeming social importance," Me ey repeated the words of Roth, the Memoirs [***10] plurality produced a drastically alter discharge under our criminal standards of proof. Such considerations caused Mr. Justice [**2614] See also id., at 461 (WHITE, J., dissenting); United States v. Groner, 479 F.2d Apart from the initial formulation in the Roth case, no majority of the Court has at an , e. g., Redrup v. New York, 386 U.S., at 770-771. We have seen "a variety of views among J., concurring and dissenting) (footnote omitted). n3 This is not remarkable, for in the entific expression. This is an area in which there are few eternal verities. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 In the absence of a majority view, this Court was compelled to embark on the practic by the First Amendment. Redrup v. New York, 386 U.S. 767 (1967). Thirty-one cases have b Ohio, 398 U.S. 434-435 (1970) (dissenting opinions of BURGER, C. J., and Harlan, J.). The - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***12] The case we now review was tried on the theory that the California Penal Code @ 311 app today supports the Memoirs formulation. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v. Slaton - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - II This much has been categorically settled by the Court, that obscene material is unprote and Fourteenth Amendments have never been treated as absolutes [footnote omitted]." Breard *13] We acknowledge, however, the inherent dangers of undertaking to regulate any form o As a result, we now confine the permissible scope of such regulation to works which depic e offense must also be limited to works which, taken as a whole, appeal to the prurient in ic value. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U.S. 184, "For all the sound and fury that the Roth test has generated, it has not been proved un -- should be forced to choose between repressing all material, including that within the , and we have attempted in the Roth case to provide such a rule." [***14] n6 See, e. g., Oregon Laws 1971, c. 743, Art. 29, @@ 255-262, and Hawaii Penal Code, Ti osed to expression. Other state formulations could be equally valid in this respect. In extent of state power. We do not hold, as MR. JUSTICE BRENNAN intimates, that all States other than Oregon mus s of Film, post, at 130 n. 7. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The basic guidelines for the trier of fact must be: (a) whether "the average person, ap v. United States, supra, at 489; [***15] (b) whether the work depicts or describes, in tic, political, or scientific value. We do not adopt as a constitutional standard the "ut Justices at one time. n7 See supra, at 21. If a state law that regulates obscene materia mate power of appellate courts to conduct an independent review of constitutional claims w lan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284-285 (1964); Roth v - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 "A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem ). We also reject, as a constitutional standard, the ambiguous concept of "social importa - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We emphasize that it is not our function to propose regulatory schemes for the States. part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal (b) Patently offensive representations or descriptions of masturbation, excretory funct Sex and nudity may not be exploited without limit by films or pictures [**2616] exhib mum, prurient, patently offensive depiction or description of sexual conduct must have se , at 487; Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940). For example, medical books fo uestions of fact and law, we must continue to rely on the jury system, accompanied by the against society and its individual members. n9 - - - - - - - - - - - - - - - - - -Footnote n8 Although we are not presented here with the problem of regulating lewd public conduc . O'Brien, 391 U.S. 367, 377 (1968), a case not dealing with obscenity, the Court held a S vernmental interest; if the governmental interest is unrelated to the suppression of free a v. LaRue, 409 U.S. 109, 117-118 (1972). [***18] n9 The mere fact juries may reach different conclusions as to the same material does no ies may reach different results under any criminal statute. That is one of the consequenc - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in oirs v. Massachusetts, supra, has abandoned his former position and now maintains that no s Adult Theatre [***19] I v. Slaton, post, p. 73 (BRENNAN, J., dissenting). Paradoxi to juveniles, although he gives no indication of how the division between protected and no e where in the Constitution he finds the authority to distinguish between a willing "adult Under the holdings announced today, no one will be subject to prosecution for the sale law, as written or construed. We are satisfied that these specific prerequisites will p 91-492. [***20] Cf. Ginsberg v. New York, 390 U.S., at 643. n10 If [*28] the inabil phy may be exposed without limit to the juvenile, the passerby, and the consenting adult a ack, J., joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra, at 476, 491 , dissenting). In this belief, however, MR. JUSTICE DOUGLAS now stands alone. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States, supra, at 491 "Many decisions have recognized that these terms of obscenity statutes are not precise. itution does not require impossible standards'; all that is required is that the language , 7-8. These words, applied according to the proper standard for judging obscenity, alread . . That there may be marginal cases in which it is difficult to determine the side of t o United States v. Harriss, 347 U.S. 612, 624, n. 15; Boyce Motor Lines, Inc. v. United St v. Washington, 236 U.S. 273; Nash v. United States, 229 U.S. 373." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***21] MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his chan arks that the examination of contested materials "is hardly a source of edification to the ing source of tension between state and federal courts . . . ." "The problem is . . . that , at 93, 92. It is certainly true that the absence, since Roth, of a single majority view of this C , a majority of this Court has agreed on concrete guidelines to isolate "hard core" pornog provide positive [**2618] guidance to federal and state courts alike. This may not be an easy road, free from difficulty. But no amount of "fatigue" should ch an abnegation of judicial supervision in this field would be inconsistent with our duty urts" by arbitrarily depriving the States of a power reserved to them under the Constituti -485. "Our duty admits of no 'substitute for facing up [*30] to the tough individual p . 478, 488 (opinion of Harlan, J.) [footnote omitted]." Jacobellis v. Ohio, supra, at 188 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 We must note, in addition, that any assumption concerning the relative burdens of t - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - III Under a National Constitution, fundamental First Amendment limitations on the powers of appeals to the "prurient interest" or is "patently offensive." These are essentially quest ngle formulation, even assuming the prerequisite consensus exists. When triers of fact ar stic to require that the answer be based on some abstract formulation. The adversary syst , guided always by limiting instructions on the law. To require a State to structure obsc As noted before, this case was tried on the theory that the California obscenity statut ctly regarded at the time of trial as limiting state prosecution under the controlling cas ent interest" and in determining whether the material "goes substantially beyond customary " During the trial, both the prosecution and the defense assumed that the relevant "commu America. Defense counsel at trial never objected to the testimony of the State's expert California, County of Orange, appellant for the first time contended that application of - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 The record simply does not support appellant's contention, belatedly raised on appe bscenity offenses, had conducted an extensive statewide survey and had given expert eviden 348, 356 (1969). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***26] We conclude that neither the State's alleged failure to offer evidence of "national sta ury must consider hypothetical and unascertainable "national standards" when attempting to upra, at 200: "It is my belief that when the Court said in Roth that obscenity is to be defined by re ndard' . . . . At all events, this Court has not been able to enunciate one, and it would It is neither realistic nor constitutionally sound to read the First Amendment as requi 9 U.S. 524-525 (1970) [***27] (BLACKMUN, J., dissenting); Walker v. [**2620] Ohio, t 319-320 (Harlan, J., dissenting); United States v. Groner, 479 F.2d, at 581-583; O'Meara an, J., dissenting); Jacobellis v. Ohio, supra, at 203-204 (Harlan, J., dissenting); Roth t to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mish nity standards" is to be certain that, so far as material is not aimed at a deviant group, . United States, supra, at 489. Cf. the now discredited test in Regina v. Hicklin, [1868] serves this protective purpose and is constitutionally adequate. n14 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 In Jacobellis v. Ohio, 378 U.S. 184 (1964), two Justices argued that application of n by testing variations in standards from place to place. Id., at 193-195 (opinion of BREN tional" criteria, will nevertheless be unavailable where they are acceptable. Thus, in te n in accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Appellant also argues that adherence to a "national standard" is necessary "in order to not intrude on any congressional powers under Art. I, @ 8, cl. 3, for there is no indicati egulated by a State in the exercise of its traditional local power to protect the general 24 (1963); Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960); Breard v. Alexandria U.S. 511 (1935); Sligh v. Kirkwood, 237 U.S. 52 (1915). [***29] n14 Appellant's jurisdictional statement contends that he was subjected to "double jeop rent time in a different setting. Appellant argues that once material has been found not that appellant properly raised this issue, better regarded as a question of procedural du contends that the question was waived under California law because it was improperly plead t least in part, on a failure of the prosecution to present affirmative evidence required Appellant's contention, therefore, is best left to the California courts for further consi - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***30] IV The dissenting Justices sound the alarm of repression. But, in our view, to equate th high purposes in the historic struggle for freedom. It is a "misuse of the great guarant artistic, political, or scientific value, regardless of whether the government or a major bringing about of [*35] political and social changes desired by the people," Roth v. portrayal of hard-core sexual conduct for its own sake, and for the ensuing [***31] com - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 In the apt words of Mr. Chief Justice Warren, appellant in this case was "plainly e nstitutionally punish such conduct. That is all that these cases present to us, and that - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - There is no evidence, empirical or historical, that the stern 19th century American cen rious literary, artistic, political, or scientific ideas. On the contrary, it is beyond a [***32] lettres and in "the outlying fields of social and political philosophies." n ulation of commercial exploitation of human interest in sex. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of re he fierce battles of the Civil War." Id., at 474. Cf. 2 S. Morison, H. Commager & W. Leuc eming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***33] MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of our min ish commerce in ideas, protected by the First Amendment, from commercial exploitation of o utionally permissible, has all the elements of "censorship" for adults; indeed even more r the "sexual revolution" of recent years may have had useful byproducts in striking layers eeded or permissible; civilized people do not allow unregulated access to heroin because i - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 "We have indicated . . . that because of its strong and abiding interest in youth, ults. Ginsberg v. New York, . . . [390 U.S. 629 (1968)]." Interstate Circuit, Inc. v. Dal - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***34] [**2622] In sum, we (a) reaffirm the Roth holding that obscene material is not protec g that the material is "utterly without redeeming social value"; and (c) hold that obsceni standards." The judgment of the Appellate Department of the Superior Court, Orange County, See United States v. 12 200-ft. Reels of Film, post, at 130 n. 7. Vacated and remanded. DISSENTBY: DOUGLAS; BRENNAN DISSENT: MR. JUSTICE DOUGLAS, dissenting. I Today we leave open the way for California n1 to send a man to prison for distributing . - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 California defines "obscene matter" as "matter, taken as a whole, the predominant ap is matter which taken as a whole goes substantially beyond customary limits of candor in - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Court has worked hard to define obscenity and concededly has failed. In Roth v. Un was said, was rejected by the First Amendment because it is "utterly without redeeming [ t test, it has been said, could not be determined by one standard here and another standar y of the Court in giving content to obscenity was that it was "faced with the task of tryi In Memoirs v. Massachusetts, 383 U.S. 413, 418, the Roth test was elaborated to read as b) the material is patently offensive because it affronts contemporary community standards In Ginzburg v. United States, 383 U.S. 463, a publisher was sent to prison, not for the he advertisements. Id., at 468. The Court said, "Where the purveyor's sole emphasis is on aid in dissent, " . . . Ginzburg . . . is now finally and authoritatively condemned to se t observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision w [*39] A further refinement was added by Ginsberg v. New York, 390 U.S. 629, 641, wher But even those members of this Court who had created the new and changing standards of tional muster under the several constitutional tests which had been formulated. See Redru to whether it is advertised "'to appeal to the erotic interests of customers.'" n3 Some co ntelligibly," but "I know it when I see it." n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Roth v. United States, 354 U.S. 476, 502 (opinion of Harlan, J.). n3 Ginzburg v. United States, 383 U.S. 463, 467. n4 Jacobellis v. Ohio, 378 U.S. 184, 197 (STEWART, J., concurring). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Today we would add a new three-pronged test: "(a) whether 'the average person, [***39 scribes, in a patently offensive way, sexual conduct specifically defined by the applicabl Those are the standards we ourselves have written into the Constitution. n5 Yet how und - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 At the conclusion of a two-year study, the U.S. Commission on Obscenity and Pornogra "Society's attempts to legislate for adults in the area of obscenity have not been succ ion. The Constitution permits material to be deemed 'obscene' for adults only if, as a wh e vague and highly subjective aesthetic, psychological and moral tests do not provide mean ourts between prohibited and permissible materials often appear indefensible. Errors in t ission on Obscenity and Pornography 53 (1970). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***40] Today the Court retreats from the earlier formulations of the constitutional test and u erms, since "obscenity" is not mentioned in the Constitution or Bill [**2624] of Righ ily implied, for there was no recognized exception to the free press at the time the Bill or deciding what is and what is not "obscene." The Court is at large because we deal with e may reflect only his neurosis, not shared by others. We deal here with a regime of cens Obscenity cases usually generate tremendous emotional outbursts. They have no business follow as, if, and when publishers defied the censor and sold their literature. Under tha becomes a trap. A brand new test would put a publisher behind bars under a new law improv My contention is that until a civil proceeding has placed a tract beyond the pale, no c Harlan has said: "The upshot of all this divergence in viewpoint is that anyone who undertakes to examin it, Inc. v. Dallas, 390 U.S. 676, 707. In Bouie v. City of Columbia, 378 U.S. 347, we upset a conviction for remaining on prop time of their conduct" [*42] while on the property "that the act for which they now st d racial discrimination; the present case involves rights earnestly urged as being protect "fair warning" that what they did was criminal conduct. II If a specific book, play, paper, or motion picture has in a civil proceeding been conde a vague law has been made specific. There would remain the underlying question whether th er and over again. n7 But at least a criminal prosecution brought at that juncture would n - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 It is said that "obscene" publications can be banned on authority of restraints on c ommunications respecting the sale of spurious or fraudulent securities. Hall v. Geiger-Jo t whenever speech and conduct are brigaded -- as they are when one shouts "Fire" in a crow ld be restrained from picketing a firm in support of a secondary boycott which a State had ing used as an integral part of conduct in violation of a valid criminal statute. We reje n7 See United States v. 12 200-ft. Reels of Film, post, p. 123; United States v. Orito, ; Ginzberg v. United States, 383 U.S. 463, 482; Memoirs v. Massachusetts, 383 U.S. 413, 42 Regents, 360 U.S. 684, 697; Roth v. United States, 354 U.S. 476, 508; Kingsley Books, Inc. n8 The Commission on Obscenity and Pornography has advocated such a procedure: "The Commission recommends the enactment, in all jurisdictions which enact or retain pr hether particular materials fall within existing legal prohibitions . . . . "A declaratory judgment procedure . . . would permit prosecutors to proceed civilly, ra violation of the law only with respect to conduct occurring after a civil declaration is alternatives are available, the criminal process should not ordinarily be invoked against minal sanctions might otherwise deter the free distribution of constitutionally protected - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***45] No such protective procedure has been designed by California in this case. Obscenity -- s a monstrous thing to do in a Nation dedicated to fair trials and due process. III While the right to know is the corollary of the right to speak or publish, no one can b re I protested against making streetcar passengers a "captive" audience. There is no "cap d by what they see. But they are not compelled by the State to frequent those places; and The idea that the First Amendment permits government to ban publications that are "offe e benighted place. The First Amendment was designed "to invite dispute," to induce "a con the First Amendment permits punishment for ideas that are "offensive" to the particular ju is to make a sharp and radical break with the traditions of a free society. The First Ame "staid" people. The tendency throughout history has been to subdue the individual and to mated by [***47] the Court's opinion, the materials before us may be garbage. But so i s and publishers have not been threatened or subdued because their thoughts and ideas may - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 Obscenity law has had a capricious history: "The white slave traffic was first exposed by W. T. Stead in a magazine article, 'The Maid w supplies no definite standard of criminality, a judge in deciding what is indecent or pr s ideas which are thought liable to cause bad future consequences. Thus musical comedies d against Shelley's Queen Mab and the decorous promulgation of pantheistic ideas, on the g nd even in religion a crime." Z. Chafee, Free Speech in the United States 151 (1942). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***48] The standard "offensive" is unconstitutional in yet another way. In Coates v. City of manner annoying to persons [*46] passing by." We struck it down, saying: "If three or s by. In our opinion this ordinance is unconstitutionally vague because it subjects the e uct. "Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, onduct is specified at all." Id., at 614. [**2627] How we can deny Ohio the convenience of punishing people who "annoy" others If there are to be restraints on what is obscene, then a constitutional amendment shoul ur destiny. But the people can make it such if they choose to write obscenity into the Co We deal with highly emotional, not rational, questions. To many the Song of Solomon is nd decide by a constitutional amendment what they want to ban as obscene and what standard ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, disse In my dissent in Paris Adult Theatre I v. Slaton, post, p. 73, decided this date, I not such material to unconsenting adults. In the case before us, appellant was convicted of d various books and a movie. I need not now decide whether a statute might be drawn to impo Theatre I, the statute under which the prosecution was brought is unconstitutionally overb overly broad statutes with no requirement that the person making [***51] the attack de g [*48] from Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). See also Baggett v. Bull 21-22 (1960); NAACP v. Button, 371 U.S. 415, 433 (1963). Since my view in Paris Adult The adily apparent construction suggests itself as a vehicle for rehabilitating the [statute] d the case for proceedings not inconsistent with this opinion. [***52] See Coates v. Ci - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - * Cal. Penal Code @ 311.2 (a) provides that "Every person who knowingly: sends or cause fers to distribute, or has in his possession with intent to distribute or to exhibit or of - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -