Miller v. California

PETITIONER: Marvin Miller
RESPONDENT: California
LOCATION: Collectors Publications

DOCKET NO.: 70-73
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: State trial court

CITATION: 413 US 15 (1973)
REARGUED: Nov 07, 1972
DECIDED: Jun 21, 1973
ARGUED: Jan 18, 1972 / Jan 19, 1972

Burton Marks - Reargued the cause for the appellant
Mark -
Michael R. Capizzi - Reargued the cause for the appellee

Facts of the case

Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.


Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

Media for Miller v. California

Audio Transcription for Oral Reargument - November 07, 1972 in Miller v. California
Audio Transcription for Oral Argument - January 18, 1972 in Miller v. California

Audio Transcription for Oral Argument - January 19, 1972 in Miller v. California


Mr. Chief Justice and if court please, to continue with my preface, if you will to the argument, yesterday I was expressing the proposition that perhaps the court has not become acquainted with the realities of the situation which lawyers and perhaps judges are faced with when approaching an obscenity case when it is put into the criminal context.

For instance the Fifth Circuit in a case of US vs Groner decided January 11, 1972 Mr. Justice Thornberry expressed some apprehension that he could not understand what was happening in the obscenity field and certainly could not make any determinations for himself as to what was obscene or not obscene in the absence of expert testimony and also express that we thought in line with several other cases that a national standard as far as contemporary standards would seem to be just the ticket under the circumstances of that material goes between states.

The case at bar is very interesting I think when you examine the history of this case Mr. Miller and it illustrates in my opinion why Harris v. Younger was decided wrongly.

Mr. Miller has a company which publishes and it's in Covina, which is in the County of Los Angeles.

They send mailers out, brochures out.

Brochures went to Los Angeles County, Orange County, San Diego County, and to the various states.

You must understand that within the various Counties there are district attorneys and city attorneys who are responsible for bringing prosecutions and it's up to their discretion as to whether or not a prosecution will be had.

That is a complaint filed.

Now, in Mr. Millers case there were prosecutions filed in perhaps 15 different municipal courts on the same brochures within the County of Los Angeles in different municipal courts, different district attorneys, deputies of the same County, prosecution in Orange County, prosecutions in San Diego County, and this is what happened in Orange County.

First of all, in Los Angeles County we brought a motion and that is just illustrated in the clerk's transcript before Judge Arguelles in East Los Angeles Judicial District and the motion was presented in which we had expert witnesses testifying that the material was not obscene, and was constitutionally protected and Judge Arguelles made a determination dismissing the action that the material wasn't that protected as set forth -- for the reason set forth in the various cases.

After that, the Orange County prosecution was started, same brochures, same defendant, same plaintiffs to -- with the people of the State of California.

So what did we do in Orange County?

We went to the first trial judge and we made a motion to dismiss on the grounds that it was constitutionally protected, presented expert witnesses.

The people presented none, the judge denied the motion.

We then took a petition to writ of prohibition to the Superior Court in Orange County to stay the proceedings, writ of prohibition denied out of hand, appealed to the Orange County to the Court of Appeals, Second Appellate District for a stay, a writ of supersedeas.

Denied, Supreme Court of the State of California denied, no stay.

We then went habeas corpus route through the courts alleging that the material was protected.

We went to the Superior Court, the Court of Appeals, Supreme Court, all denied out of hand.

Also alleging if you please in the habeas corpus proceedings that there was a res judicata, as estoppel, Ashe versus Swenson, Waller versus Florida decided by this court.

The material is protected, it can't be prosecuted, denied, out of hand.

No court to date as a matter of fact, if you now consider the fact and I think I misspoke myself, that I said a seven week trial, it was not, it was a seven day trial.

But this is not, this is a very short trial for obscenity cases as a rule.

After all of these pre-trial proceedings in which we were trying to get nothing but an adversary hearing, we then went to trial with a jury, a conviction, an affirmance without an opinion in which the Appellate Court completely abdicated its own responsibility, and that is to review the material, a simple, affirmance and remanded it and finally an appeal to this court.

William H. Rehnquist:

Mr. Mark, following the conviction you appealed from the Appellate departments affirmance to the Court of Appeal for discretionary review, is that right?


I asked what is called a petition for certification and this is discretionary with the Appellate Department of the Superior Court, whether or not they want to certify the important question over to the Court of Appeals.

William H. Rehnquist:

But does not the Court of Appeal also have a right without certification to grant you a discretionary hearing?


That is correct, they can.

If the opinion is published, if there is a published opinion in the Appellate Department which is entirely discretionary with them, then the Court of Appeal has the right to exercise its discretion to determine whether or not it wants to decide that question and take jurisdiction.

William H. Rehnquist:

So do you have no right after the conviction, the petition of Supreme Court of California for discretionary review?