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II)B)4 Miller vs. California: The “Miller Test” and how the magic camera transforms legal actions into criminal thoughts.


After years of the highest court in the most powerful nation on earth wrestling with the question of obscenity in cinema, and even being reduced to watching films and deciding what was and was not obscene on a case by case basis, in 1973, and by a 5/4 decision, the court was finally able to come up with an clear and impartial standard for determining what was obscenity. A standard that would allow them to delegate the important work of deciding what is art and what is obscenity to lower courts.

Ladies and gentlemen, the Miller Test. The means by which it is determined whether or not a work dealing with sexuality is entitled to protection under the First Amendment, or is obscenity, work for which a person can be jailed. A work is obscene if all three of the following conditions are satisfied:

  • Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  • Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  • Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

A couple of things worth noting about the Miller Test.

First and foremost, whether or not a work is obscene can only be determined by subjecting the producer, distributor and/or exhibitor to a criminal prosecution. If you make art – photos, films, videos, painting, drawings, sculpture, writing – that deals with sexuality, you cannot know before you are charged whether or not your work might be considered obscene, and even after you’ve been charged, whether or not your work constitutes a criminal offense can only be determined by going to trial. 

Whether or not a work might be considered obscene can and does vary from jurisdiction to jurisdiction. The Utah lingerie store owner I met in 2007 doesn’t carry our films because she’s afraid of being charged with violating Utah’s obscenity statutes. Retailers in New York have no such fears.

Now before you get your dander up and start carrying on about the First Amendment (or the Fourteenth,) these sorts of vagaries are not unprecedented in law. In fact the law cannot function without them.

For example, if you shoot someone and claim it was self-defense, you have to go to court and prove it. If you go to your place of work and shoot your boss, and then claim you didn’t know right from wrong because eating twinkies made you insane, you have to go to court and prove it. These are called “affirmative defenses.”

Geographical variances in what is and it not permissible are also not unknown. For example, I grew up in Oregon and bought guns at K-mart, but the Second Amendment absolutist in me has a hard time answering when my Brooklyn born and raised wife asks, “So you think they should sell guns at the K-mart at Penn Station in midtown Manhattan?”

Let’s leave aside (for now) whether or not it’s a good idea for the government t regulate sexually explicit speech; or even if it is where or not or using this approach to regulating sexually explicit work is the best approach.  That argument’s been going on for nearly 40 years, and so far, Miller stands.

Instead, let’s look at the effect the approach dictated by Miller has on how films that deal with sexuality are produced and distributed. 

Mainstream retailers avoid films that depict actual sexual intercourse unless the work is cloaked in the rubric of “health” or “education.”

The vanishingly small number of producers of works of pure entertainment that contain actual sexual intercourse who need access to mainstream markets to see a sufficient return on their investment (ie people making “real movies”) will shape both their approach to  sexual themes and their marketing in a away that refutes the charge that their work is “pornography.” As we saw in 9 Songs, Shortbus, and  Destricted the usual gambit is to deny that the work is made with “the intent to arouse.” [see the previous post II)B)2) Roth vs US: The question of “socially redeeming value.”]

Producers, distributors, and retailers who make and market sexually explicit films with an overtly expressed intent of arousing their viewers take a different tack in dealing with not knowing where, when, or why they might be charged with obscenity.

Since the Miller decisions, there have been sundry and various lists of acts and scenarios understood to be especially likely to draw unwanted attention from authorities, the most famous of these being the Cambria List, produced by lawyer Paul Cambria, a sort of Hays Code for the “adult industry”:

Box-Cover Guidelines/Movie Production Guidelines

  • Before selecting a chrome [still image] please check facial expression. Do not use any shots that depict any unhappiness or pain.

Do not include any of the following:

  • No shots with appearance of pain or degradation
  • No facials (bodyshots are OK if shot is not nasty)
  • No bukakke
  • No spitting or saliva mouth to mouth
  • No food used as sex object
  • No peeing unless in a natural setting, e.g., field, roadside
  • No coffins
  • No blindfolds
  • No wax dripping
  • No two dicks in/near one mouth
  • No shot of stretching pussy
  • No fisting
  • No squirting
  • No bondage-type toys or gear unless very light
  • No girls sharing same dildo (in mouth or pussy)
  • Toys are OK if shot is not nasty
  • No hands from 2 different people fingering same girl
  • No male/male penetration
  • No transsexuals
  • No bi-sex
  • No degrading dialogue, e.g., “Suck this cock, bitch” while slapping her face with a penis
  • No menstruation topics
  • No incest topics
  • No forced sex, rape themes, etc.
  • No black men-white women themes

Similarities between the Cambria List and the Hays Code start and end with the fact that both are lists of content thought be be likely to draw legal sanction, and neither have force of law. The “adult industry” has never had anything approaching the group cohesion of the Hollywood majors (not a strong statement). There has never been an “adult industry seal” that could be withheld from productions that deviated from the Cambria List or any other guidelines for content or production practices. Much of what is on the Cambria List is now commonplace, but depictions of some acts (such as fisting) or fictional scenarios (rape, incest) continue to be regarded as an invitation to prosecution. Videos with depictions of such acts will generally be avoided by “mainstream” adult distributors, but a have become readily available on the internet.

There are also geographical challenges (ie: “penetration is illegal in Utah.”) 

Bricks and mortar outlets (like our lingerie shop owner or Blockbuster) deal with local law enforcement directly, and tailer their inventories accordingly. What national retailers will and will not stock is skewed by the most conservative jurisdictions in which they do business.

Most mail order catalog retailers maintain databases of problematic zipcodes and do not ship to these zipcodes. It is not uncommon for these retailers to refuse to ship to entire states, such as Utah or Alabama. Thanks to the (ultimately failed) prosecution in 1990 of the Cincinnati Contemporary Arts Center and its director, Dennis Barrie,  on obscenity charges stemming from an exhibition of photographs by Robert Mapplethorpe, Cincinnati zipcodes are usually on this database, while the rest of the state of Ohio usually is not. Like the no-fly list, once a zipcode gets onto a database, it’s probably not going to come off.

In other words, after Miller vs California, the legal landscape for films that deal with sexuality looks a lot like the legal landscape faced by Hollywood in the 1920s. In the 1920s a Hollywood producer had no way of knowing for sure where and for what reason his film might be subjected to legal sanction. In the 1920s, whether the product of an outraged community group, a religious demagogue, or an ambitious local prosecutor, a Hollywood producer could find himself hauled into court, or at least, unable to sell a product in which he had a significant financial investment.

It’s no different for me today. The same prosecutor who leaves his card with that lingerie shop owner in Utah could go to our website, order a DVD, and then charge me with violating Utah’s obscenity statutes. That same prosecutor could (theoretically) go to Amazon, order a copy of 9 Songs or Shortbus, and then charge Jeff Bezos with distributing obscene materials. In this environment, how producers, distributors, and retailers balance the risks and rewards of making and distributing sexually explicit films is informed by their financial and creative resources, their tolerance for risk, their social capital, and what if, any personal agenda they may have.

Miller didn’t quite get the US Supreme Court of the business of making direct rulings on whether or not a particular film is constitutionally protected speech. In 1974 the court ruled on Jenkin vs. Georgia, a case involving the screening of Mike Nichols’ film Carnal Knowledge in Albany, Georgia in 1972 and the resulting conviction of Jenkins on under Georgia’s obscenity laws. The Supreme Court ruled that 1) Although Jenkins was convicted in 1972 (a year prior to Miller) he was entitled to protection under Miller. 2) That under Miller Carnal Knowledge was not obscenity, and there for was constitutionally protected speech.

Again, as in Miller, Justice Brennan, joined by Stewart and Marshall expressed their doubts about Miller, both as a constitutional or practical law:

In order to make the review mandated by Miller, the Court was required to screen the film Carnal Knowledge and make an independent determination of obscenity vel non. Following that review, the Court holds that Carnal Knowledge could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene.” Ante, at 161.
Thus, it is clear that as long as the Miller test remains in effect “one cannot say with certainty that material is obscene until at least five members of this Court, applying [418 U.S. 153, 165] inevitably obscure standards, have pronounced it so.” Paris Adult Theatre I v. Slaton, 413 U.S., at 92 (BRENNAN, J., dissenting). Because of the attendant uncertainty of such a process and its inevitable institutional stress upon the judiciary, I continue to adhere to my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly `obscene’ contents.”

Jenkins vs. Georgia would be the last time the US Supreme Court would issue a direct ruling on whether or not a particular film was or was not obscene. Subsequent Supreme Court “obscenity” cases would focus on minors, drive in movies, and other issues more related to consent than the question of whether or not some ideas about sex cannot legally be expressed, even in private to a willing adult audience.

The closest the court would come to revisiting issues of sexual morality or taste with regard to film was in the 1985 case Brockett v. Spokane Arcades, Inc, wherein the US Supreme Court would reverse the Washington State Supreme court’s decision striking down of the “prurience standard” as being overly broad because, as defined in Roth, prurience included “lust” which the Washington Supreme court defined as a “normal” sexual response. My reading is that the case rested more severablity (whether or not an overly broad law must be thrown out in it’s entirety, or just have pieces thrown out) than on the court’s eagerness to create a sharp distinction between normal, wholesome lust and it’s more debauched cousin, prurience. But again, I’m not a lawyer. I’m just a filmmaker trying to make films without ending up in jail.

I subtitled this section “how the magic camera transforms legal actions into criminal thoughts” because under the Miller Test, there exists the possiblity that my wife and I could be charged with obscenity. Given the relatively “tame” sex acts depicted in our films, an the context, that seems unlikely.

But as a matter of principle we do not maintain a do not ship list, and I am ever mindful of the short film we made some 15 years ago, when we were working with couples privately to do “studies” to refine our approach to depicting sex.

The second couple with whom we ever did a study enjoyed (much to our surprise) some relatively exotic sex acts as  a part their bedroom play, including vigorous fisting, female ejaculation (squirting) and anal sex. This couple was long married and none of what they did with each other was illegal in the state of New York. The film we made was and remains private, and has only ever been shown to invitation-only audiences in New York and California. 

But if I were to show this film, even in only by private invitation, in a jurisdiction with a difference standard for obscenity, this privately and consensually produced, film, of consensual, legal activity could somehow (magically) transform into a criminal thought. As a photographer this simply boggles my mind.

I understand that our country is diverse and that the laws that work in one place (guns in K-mart in Oregon) may not work in another (guns in K-mart in Penn Station.)

Yet somehow this feels different. It’s very hard for me to accept that consensual activities between adults, activities that are in and of themselves legally protected private behavior can somehow be transformed into illegal thoughts by recording these activities photographically.

Yet this is the law of the land as laid down by the Supreme Court of the United States in 1973. After mediating on and revising the definition of obscenity on several occasions in the two decades leading up to and including Miller, the Supreme Court has not seen fit to revisit the question in the nearly 40 years since.

And lastly, although Miller was largely conceived of as a means to determine whether or not a depiction drawn from real life (ie a photographic rendering) is or is not obscene, there is nothing inherent in the court’s ruling that prevents this test from being applied to purely imaginary sexual depictions. Since my wife and I produced the above described short film, there have been prosecutions and jail sentences for the distribution of drawings in the form of comic books, and even for the distribution of purely textual writing. A camera is no longer requisite equipment to become a thought criminal; a simple pen and ink now will suffice.

The regulation of sex and cinema has one more strange twist. Not only does the camera have the power to transform legal behavior into criminal thought, it can also transform criminal behavior into constitutionally protected speech. Feeling a little whip-sawed? Me too!

Next up: Moore’s Law, Freeman vs. California, and  the Porn Revolution 2.0: How changes law in technology mean that when everybody is special, no one is special.

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Continuing the Discussion

  1. II)C)2: California vs. Freeman: The revenge of the magic camera: How illegal actions become constitutionally protected speech. – The Intent to Arouse linked to this post on July 25, 2009

    [...] mentioned in previous posts, the 1973 Supreme Court case of Miller vs. California, and the resulting Miller Test did little to clarify when and if a depiction of nudity and/or sexuality was or was not open to [...]

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