Since starting HBO’s The Deuce, it’s been clear that the show is going to handle the development of legal porn in America. And that it’s taking place sometime in the 1970s. But I wasn’t sure what the legal provenance of the breakthrough actually was. I knew a bit about the Comstock laws, but those were struck down in 1957, so that clearly wasn’t going to be a factor. So I started paying attention to some other context clues about the time period, and last episode’s references to Muskie and Lindsey as still being in the race. This puts us in early 1972, as both of them had dropped out by the end of April. So, was there a big obscenity case sometime around 1972 that had far reaching effects on the production of pornography? You bet your ass there was!
Miller v. California actually started in 1971, when Marvin Miller was arrested for advertising pornography in a sales brochure, with graphic images, that was mailed to a restaurant in Newport Beach. The owner and his mother opened the brochure and promptly phoned the police. Miller was convicted. He appealed on the basis that the jury was not instructed on the proper standard for obscenity, that materials must be “utterly without redeeming social value,” and that there needed to be a national standard for obscenity. This argument was rejected. Miller then filed an appeal with the California Court of Appeals for the Third District, which declined the case, and then appealed to the Supreme Court for certiorari. In January 1972 oral arguments were heard at the Supreme Court.
The fight at the Supreme Court was particularly tough, and the case was reargued in October 1972. The decision didn’t actually come down until June 1973. The Court did end up upholding that obscene material is not protected by the First Amendment, but set standards for the states to regulate obscene materials. These standards include the “three prong test” (phrasing) with the last provision in particular being known as the “SLAPS” test (are we not doing phrasing?):
“1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, specifically defined by applicable state law; and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”