The Burger Court (1969–86)

First Amendment

How did the Miller test for obscenity differ from prior Warren Court definitions of obscenity?

The Warren Court test for obscenity, first articulated in Roth v. United States (1957), had required that the material in question be “utterly without redeeming social value.” The Burger Court rejected that formulation and replaced it with the “lacks serious literary, artistic, political, or scientific value” statement. The Miller test also introduced the concept of “contemporary community standards,” meaning that jurors could consider what types of materials were generally permitted in their own local community.

“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,” Chief Warren Justice Burger wrote.


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