When will Miller v. California be overturned?

As a staunch free speech advocate and supporter, my appreciation for the right to say, think, listen to, read, and indulge in whatever I want, when I want, and for whatever reason i want is a liberty I hold in high regard. I owe it my life. Without freedom of speech and expression, we wouldn’t be free. Our individual thoughts, ideas, opinions, and beliefs wouldn’t be the same as we know them now, regardless of where we stand on… on anything.

That being said… it’s no secret that not all people choose to observe this basic truth. Such a plainly obvious and observable demonstration of pluralism is either misinterpreted to deprive their contemporaries of the same rights they enjoy, or is simply lost. Authoritarianism thrives in an environment where it goes unchallenged. If certain ideas need to be protected by way of silencing those that challenge, defy, mock, or blaspheme them or simply don’t interpret them the way you wish them to be, then either they’re not valid ideas to begin with or the person advancing such a conquest isn’t representative of them.

I’ve been knee deep in the concept of obscenity for a few years now. The very idea that a nation whose values so representative of the concept of freedom of thought and expression, to the point where it bars its government from punishing people for desecrating its own flag somehow can maintain some exclusion based not on physical or intrinsic harm, harm distinct and isolated to the very context that a person’s rights or physical wellbeing is put in jeopardy would find speech relating to sex and sexual expression that does not conform to whatever standards for offensiveness and value (or lack thereof), even without regard for any “clear and present danger” is just… mindboggling. It’s devastating and nauseating, even more so than whatever perverse acts or depictions contained might be to the most prudent of puritan.
An obscenity exception from our First Amendment is antithetical to our nation’s core values. It places that which we, as a supposedly free and pluralistic people, depend on for our survival on a pedestal it has no right to be on. It bastardizes those values by twisting them to fit a specific ideal or ideology. That sex is sacred because we say so, that the current mob-like prejudices and mores of a community take precedence over the right to free expression, and that a man must rearrange his tastes, opinions, and interests on the topic if you are to be allowed to fraternize with this “free” people.

The very concept is dystopian. It is a cancer on our legal jurisprudence. The fact that in some manner or fashion, be it state or federal, that an innocent man or woman can be indicted, arrested, arraigned, put on trial and incarcerated as if they were a murderer or child predator… not for their actions against their fellow man, woman, or child, but for the contents of their hard drive, comic book or film library does not conform to the contemporary community standards of that particular US town or state… is madness.

I’d like to see it retired and allprecedent and legislation overturned. Decades of legal history, wiped away with the swing of a gavel and the stroke of a pen.

That being said… I’ve delved into the arguments against protecting “obscene” speech, the philosophy behind them, and their so-called justifications. Currently, as of Miller v. California, obscenity is excluded because it “has no value”, is linked to harm or violence in young adults (as dictated by the Meese Commission on obscenity and pornography), that commercial exploitation of it can lead to a corruption of the very moral fabric of a community and that communities have a right to a “decent life”.

The entire majority opinion from Miller is riddled with this rhetoric. Such a rhetoric is familiar to that of Lord Delvin’s book “The Enforcement of Morals”, a machiavellian lecture on morality and a society’s right to define, pursue, and enforce it. Aside from the fact that they’re wrong, these arguments all rest on the presumption that they’re correct because they seek to further a communally agreeable goal. That upholding and enforcing morality is a legitimate interest, that there is reason to suspect that violent, demented, or hardcore pornography may influence violent or sex crime in our society, and the last is just a hackneyed attempt at dodging criticism by asserting the idea that morality is intrinsic to sex and that communities, and the government itself, can and regularly do advocate for the “common good” which obscene pornography simply cannot fall into.

All of these rationales fall victim to a myriad of fallacious arguments.

For one: It’s not the government’s place to punish people for thought crimes. Coming across offensive, nauseating, rage-inducing speech that violates community standards and has no value is a risk you take when choosing to be free. You don’t have to look at, tolerate, or support materials that you don’t like. What obscenity laws do is they take this level of individualism from the community, and the community decides what is appropriate for the individuals to enjoy. That’s not democracy. That’s moral majoritarian tyranny.

Second, the Meese commission was a follow-up attempt by Congress and the Nixon administration to correct what the previous commission said about the issue by essentially fixing it to fit with their socially conservative narrative. Numerous issues have been called out from within and outside the commission, with the Nixon administration appointing their own people to spearhead research into a biased direction. Even the findings themselves admit that it couldn’t establish a satisfactory intrinsic link between degenerate pornography and actual harm or crime, but referenced “common sense” over social-science inquiry. So to imply that such a book is a valid empirical metric to base such a conclusion on is lunacy.

And finally… the morality argument. The morality argument is fallacious in that it seeks to apply real-world standards to the realm of art. This is bolstered by the presumption that pornography isn’t art because it seeks to get you off, but to imply that in and of itself isn’t or can’t be art is evidence of a bias. Art is to the beholder whatever value it may have. There are dozens of arguments and definitions for how to objectively define “art” and “artistic value”, but the most satisfactory answer people go with is if it’s a tangible, observable work that is expressive and attracts an audience. To define what can and can’t be “expressive” is demeaning to the very medium, in that it strips the individual of their right to enjoy the gift of “art”.

How does this relate to morality? Because in addition to demeaning the institution of “art” in such a contradictory fashion, it seeks to further establish a link to the real world where your standards for what may exist in your imagination are secondplace to certain moral issues a community may have. By establishing this link, it becomes harder and harder to rebel or object because they’re using appeals to emotion and morality fallacies to rob the individuals of their right to define it. Such a psychological tactic is common in religions and despots.

These are only some of my statements and arguments against defining and excluding obscenity. The Constitution already allows indecent and pornographic materials that aren’t declared obscene to be restricted based on “time and place” but to go any further than that is unconstitutional. The First Amendment does not, and should not, have this barbaric double-standard for sexually explicit or offensive pornography. Pornography is, by it’s very definition, art.

Please, if anybody knows how or when Miller could or will be overturned, please keep the discussion going. I hope to wage war on this precedent.


I haven’t been following the case, but I’d be happy to indulge you for the time being. What even constitutes as “justice”? “Morality”? As the days go by, the political and moral atmosphere dissipates. I’m at a loss for words.

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It’s interesting that the criminalization of obscenity was found unconstitutional in Oregon based on a provision of the state constitution which was determined to be broader than the federal constitution.


Yeah but what does that have to do with free speech? These ideals weren’t as popular as they are now, especially with pornographic expression. But there certainly were people who saw the exclusion of obscene speech from the First Amendment as a serious problem.

The interesting thing about speech is that it doesn’t need to be defined. You can say the same horrible things you can now and will be able to do so again in 20 years time. But with obscenity, the conservative majority left it vague enough so that pornography producers and consumers would always be on edge. Like a dormant viper waiting to strike. The fact that obscenity cant even be assigned a solid definition should render the whole thing unconditional, but you know prudes…

I don’t think it really has anything to do with that. If you examine the wording and precedent of both Constitutions and their provisions on speech you’ll find that there’s nothing really different. It’s just that the state Supreme Court of Oregon simply had the majority necessary to see excluding it as against their constitution. And for good reason. Whereas the US Supreme Court was… actually at the center of a huge ideological conflict.
What’s interesting about that is there was never a solid majority. It was always 5-4 with the same liberal-minded justices repeating the same thing. Hell, even Justice Brennan, the writer of the majority in Roth v. US (Miller’s predecessor), changed sides on the issue after realizing obscenity was a matter of individual taste and couldn’t be defined a solid definition to satisfy the strict empirical requirements both the rule of law and the US Constitution demand, and simply wasn’t compatible with the First and Fourteenth Amendments. Justices Douglas, Stewart, and Marshall all pretty much felt the same, with Douglas’ opinions being more succinct.

I blame Nixon appointing social conservatives like Justice Byron White and Warren Burger, two controversial justices who actually made up the majority in Bowers v. Hardwick, which found that gay sex, even between consenting adults in the privacy of the home, was a “crime against nature” and “worse than rape” and wasn’t protected the same way heterosexual activity was because “morality” and “community standards” and “because we say so”, almost identical with the rationale behind excluding obscenity.

Bowers would later be overturned in 2003 in Lawrence v. Texas, which completely and utterly denounced Bowers, and even said that " advancing morality isn’t a legitimate government interest". In this case, Justice Scalia in his dissent stated that if morality isn’t a legitimate rationale, then laws forbidding gay marriage, bigamy, fornication, masturbation, and obscenity would be invalidated. It seems that this women is coming true for many of those things…

In the words of Justice Douglas, “…one man’s obscenity is another man’s lyric”.

Then what are we to do then? Wallow in anguish or theorize some kind of ultimatum?


Assuming the political climate in the near future welcomes it and the SCOTUS isn’t as hard-right…

I’d like to see somebody or a group like the Prostasia Foundation, the Free Speech Coalition, the ACLU, the Comic Book Legal Defense Fund, and any other freedom of speech/expression oriented groups sue the US government in federal court and make it to the Supreme Court, where we can present our arguments for overturning Miller and abolishing the obscenity exclusion from our First Amendment.

There is absolutely no justification or remotely satisfactory rationale for this act of tyranny masked behind reason. The concept of obscenity cannot and does not comport with the First, Fourth, or Fourteenth Amendments. It is a cancer.

There was a case involving another woman who produced BDSM photographs who used the government to have 18 USC 1462 overturned because the law threatened her work, in that obscenity was too broad and too vague to be applicable at the federal level in reference to the internet. Community standards differ between communities and states, and applying them to the internet put not only her, but everyone who specialized in kinky expression in jeopardy, as they cannot control which communities have access to these contents. But the court imposed upon the plaintiff the burden of proving this, which they literally couldn’t do in the timeframe requested with the precision necessary. So the case was dismissed.

We would need to be heavily prepared to fight this. Armed with the best science or social science backed by empirical evidence and data , as well as sound, bulletproof arguments for why the high court was wrong in its decisions regarding obscene speech. This of course would include attacks on the arguments of each and every case, and the perhaps even justices who authored the prevailing opinions but done so in a concise and respectful manner.

The very idea that a man can be put in prison on the basis of his taste alone, without a clear and present danger requirement, is an abomination.

There was a woman by the name of Karen Fletcher. She was a mentally ill hermit woman who lived off SSI with a history of trauma and abuse. She was also an author and artist who published erotic stories on a website called “Red Rose Stories” with most of her content hidden behind a paywall. I’m not going to go into detail regarding the contents of her site, but they caught the attention of social conservative US attorneys during the Bush administration. What our government did to this woman was far more nauseating than her stories.
In the case, her defense goes into detail about the personal value that they serve. They are a form of therapeutic expression she uses to cope with her mental illness and profit from her artistic and literary talents.
That’s right. Our government crucified an innocent woman in the name of arbitrary decency! Obscenity laws are cruel and have no place in our free society.


For a set of countries built on a political system advocating for liberty, freedom and justice, it seems to run in very short supply. Its almost as if the meanings of the words have been blurred, sullied and perverted.

Without going into detail of your post, now is the exact WRONG time to re-litigate Miller. We have a Supreme Court that is very conservative, and if they get a chance to revisit Miller, they’ll probably end up reinstating the standard that existed before hand. They’d probably revert to the old Common Law standard which banned all content that “deprave and corrupt those whose minds are open to such immoral influences”
While I do agree that Miller has flaws, if we were to re-litigate it now, we’d end up with a much, much worse standard.

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What would you suggest then, friend?

At the moment? Make our voices heard we DON’T want Obscenity law enforced. Right now it’s hardly enforced (It’s exceedingly rare anyone ever gets convicted of it unless they are sending it to minors are plead “down” to obscenity). I don’t know of a single case (that did not involve sending it to minors or plead down to obscenity) of any defendant in the 2010s. If you have such a case, or a few cases, please tell me then.


Get rid of all of the conservatives on the Supreme Court FIRST. THEN relitigate Miller.


This is sort of why I feel like getting a Democrat in office is important. I’ve read several university law reviews on the current Roberts court and how they’ve dealt with First Amendment exclusions seems as though mere “tradition” is what keeps the Miller doctrine in place.

But that’s wrong. There is a myriad of reasons why the obscenity exclusion is wrong. Tradition isn’t a valid reason. Obscenity isn’t even a question relevant to morality - it’s a question relevant to taste. And if conservatives wish to make it about morals then they’re effectively making it an imposition on religion.


that’s gonna be really hard, considering how popular Republicans are right now. It’s why I never was a fan of conservatives.

But what’s interesting about this current SCOTUS is that they seem keen on not adhering to stair decisis. They’ve become far more political. Which is unmistakably a bad thing if this group of 9 people effectively decides how the Constitution is interpreted… But then again Miller and Roth were founded on fallacious and improper rationales, so hopefully we can get a shift towards a more moderate, perhaps “literalist” or reasonable approach to the First Amendment.

But like I said before. An attack on this precedent can’t be as simple as “you were wrong”. We would need to say that, but we also would have to demonstrate how the obscenity doctrine is wholly incompatible with everything we as a country stand for, and why, with bulletproof arguments from not only a traditional precedent point of view, but also provide testimony from those drastically affected by it, from artists, to pornography enthusiasts, to children who were perhaps harmed by the fact that resources were put towards going after art and not their abusers.

There’s a lot to consider here. We’re not radical conservatives trying to force women to give birth. We’re artists, child safety advocates, enthusiasts, and free speech adherents.

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Love what you’re saying here, Chie.
I’ve been following and learning about obscenity law and what art is or isn’t legal here in the US and elsewhere for the last few years. Forgive me if I repeat anything you already know.
For me it started when the tumblr community started spreading around, what I thought was a lie or exaggeration (it was) that loli and shota art were completely illegal in the US and anyone caught with any underaged cartoon sex stuff was a monster who deserved to go to jail. It was a huge shock to me.
I’m an artist who loves Neil Gaiman and honestly grew up on Kingdom Hearts porn. Never did it ever occur to me how hated this art could be. When I first started looking at “weird” internet porn (cartoons and stuff), I thought, finally, a fantastic free place where artists are understood and can do whatever they want and people get it!
Well, unfortunately, only some people “get it”.
I relate big time with how ill it makes you. I have nightmares about it, as an artist. I’ve wanted to draw stories with teenage sex since I was a teen, and honestly wouldn’t mind drawing loli/shota styled pornography, but since learning all this, it’s become a nightmare for me. I’ve witnessed other artists receive death threats over it, harassed into hiding and have now recently become aware of the few poor souls persecuted by this awful law.

First, what I think/know about Miller v. California
I believe some states including Califronia have ironically since found obscenity laws unconstitutional, I would have to look around to see if I can find the exact case for that, and I know our federal government has no obscenity laws at the federal level.
When I look into this more, 2 other important cases come up,
Reno v. American Civil Liberties Union 1997
And Ashcroft v. American Civil Liberties Union 2002
So in Reno v. ACLU, it was found that " This case is significant because it does not rule out the prohibition of “obscene” images from transmission through the internet. Rather, the case indicates that such a prohibition must be specific and in line with its ruling in Miller v. California" so it upheld the use of the Miller test, but also revealed issues with it’s application, to my knowledge.
Then, in Ashcroft v. ACLU, well, it seems to me the Supreme Court said, “Well, I guess obscenity law is kinda fucky but I’m not sure I wanna touch that.” And so they sent it back down to the 3rd Circuit, and “Upon remand, the Third Circuit ruled that COPA was still unconstitutional as a violation of the First Amendment.” So COPA, the bill that tried to apply obscenity law to protecting children, was found unconstitutional.
This was a huge victory in a way, but because the federal courts didn’t make a ruling either way, the lower courts continue to use the Miller test.
Sadly, nearly every person convicted for art failing the Miller test has been bullied into a guilty plea bargain. One example of this was Christopher Handley, who to avoid being placed on a sex offender registry by pleading guilty, was forced to give up his entire manga collection, was made to feel evil and terrible by the courts. His lawyers even had psychologist testimony that cartoon pornography (fiction) was not known to have a connection with real CP or violence against children. The court ignored this and part of his sentence because he seemed socially awkward and was forced psychological evaluation and monitoring.
What happened to him really sickens me. He has no chance of appeal because that was part of his plea bargain.
Which brings me to an interesting study, a collection actually of 8 different studies across 8 different countries.
A quote from another article about the study:
“Results from the Czech Republic showed, as seen everywhere else studied (Canada, Croatia, Denmark, Germany, Finland, Hong Kong, Shanghai, Sweden, USA), that rape and other sex crimes have not increased following the legalization and wide availability of pornography. In addition, the study found that the incidence of child sex abuse has fallen since 1989, when child pornography became readily accessible – a phenomenon also seen in Denmark and Japan.”
And here’s why I bring this study up, every country it was found that pornography lowered many types of sex crimes, and while I will never support the legalization of real CP because a minor has to be hurt to create it in the first place, what was interesting was that the legalization of REAL CP lowered rates of sexual violence towards children. What does this tell us? The argument that CP encourages the market to make more CP is not entirely true, and it’s not at all true it encourages CSA, and so to me the reasonable solution is to make fictional pornography legal of all kinds, as pornography in general reduces real world crime (it was, I believe, connected to lower rates of other types of crime, not just sexual violence) and fictional pornography causes society less harm and even may reduce harm than the banning of it.
So when people try to say that loli or shota encourages real world violence, there’s not only not evidence to support that, the evidence supports the opposite.
I feel this evidence has been ignored by a culture that wants to be prudish and ignorant. A culture that puts feelings before harm and claims feelings can be harm.
Baring harassment, emotional upset cannot always be where we decide to draw a line on what constitutes as harm, especially when the harm by banning something so outweighs the harm of “ew I think that’s gross.”
There is a very good chance in my eyes that the rise in CP and CSA (if there really is a rise it’s hard to know for certain with the way it’s dramatized) is at least correlated strongly to the banning (and cultural shaming) of safe materials people would turn to otherwise, such as fictional pornography and frankly, a lack of sex education information on why minors cannot consent and what people with those thoughts and feelings could do otherwise without demonizing the whole concept. (I think poverty and other social stressors obviously increase crime as well.)
Most people who consume fictional pornography of minors are not interested in real minors, and I believe many people get fantasy feelings confused with real pedophilia (and it’s other sub catagories) when loli/shota or age play (etc) is thought-policed, demonized and banned by our culture, leading to more incidents of sexual assault in ignorant sexual exploration. 50% of all CSA is committed by other minors under 18, usually under the age 14, and there’s a statistic drop in incidents after 15, so the minors often figure out quickly their actions are wrong and correct themselves, very few going on to re-offend.

I have to say, I agree with Jamie Foxworthy, that now is a bad time to re-examine the law as I think the courts are stacked against us for the time being.
But I ultimately think the way to overturn Miller would be an artist or consumer willing to take it to court and fight the ruling, because so far they’ve been able to intimidate nearly everyone who’s challenged it.
I think what Prostasia is doing, funding more research, is wonderful, giving people a place to gather and talk so we can show that a large group of the public do think this art should be legal is important, especially since obscenity laws claim that the works are indecent to the majority of people.
I think that the internet has in some ways abandoned us as a group, and doesn’t want the community to be able to gather, because there’s a shame initiative to keep us divided and reinforce the material as disgusting (See what happened with Discord and Tumblr as examples. It’s purity politics now.)
The more artists and consumers we can gather and rally, the better.
I really want to meet more like minded people because as an artist I feel isolated and terrified.

I’m hoping to go to school for psychology and advocate better on these subjects in the future.
Sorry my reply was so long, just right there with you. It’s disgusting injustice that needs to be stopped.
As a newb I can only post one link, so if anyone wants others I can link those too. lol

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Oh, and I’ll add that the APA had been dragging it’s damned feet about updating it’s website that video games (fictional violence) do not directly cause real world violence (and that saying so is more dangerous than the games themselves), and this evidence also helps support that fictional pornography violence likely does not cause real world CSA or any SA at all.
It’s baffled the shit out of me that loli/shota isn’t seen as an extension of rape or age play fantasies, which a lot more people seem to understand is just fictional play or violence at worst (like BDSM or Guro), and they’re fine watching a person blowing up in a movie, so why imaginary sexual violence suddenly becomes this whole separate scary thing eludes the shit out of me!

Are you really sure… you want it to be overturned…? It’s the mess that stops cp laws from being overturned.

USC 1466 A is a different statue than USC 2252. Strangely enough, congress pass this idiotic law; USC 1466 A to make interstate access penalties of “obscene” fiction THE EXACT SAME as USC 2252 which involves REAL minors being subjugated to sexual abuse that has been recorded!

It’s possible to repeal many obscenity laws without legalizing CSAM. CSAM has been ruled that it does not need to be legally obscene to be illegal. CSAM is it’s own type of unprotected speech and remains illegal regardless on whether it obscene or not.

USC 2252 states that is is illegal if:

It is obscene.


It involves sexual intercourse.

Acceptable loss? Maybe.

We can have CP laws because they’re about real harm with real people. If CP laws only existed because of flimsy obscenity law logic, it would be because the focus isn’t on real harm, it’s only on morality.
Obscenity laws focus on imaginary crimes and morality of it, rather than if actual harm can be proven to be happening.
The law around sexual abuse material needs to be clear and focus on if the material actually causes real world harm or not. Some of the biggest studies around if pornography is harmful to society showed pornography had real culture benefits and decreased sex crime overall, so even the wording of obscenity laws where they try to prove pornography has no value aren’t based in any fact.
Porn has value, society is just so sex averse they want to deny sexuality all together rather than consider how it is an important part of human health to be sex positive and have healthy safe outlets for sexuality in all it’s forms.