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(Brennan and Fortas) This emphasis on "utterly without redeeming social value" was an expansion of the Roth standard, which presumed that obscenity was "utterly without redeeming social importance." Henceforth, the standard became known as the Roth-Memoirs test. At trial, the prosecutors had thought that the works, standing alone, may not have passed the Roth obscenity test, since they might have been deemed to have some social importance.
They therefore claimed that the context in which Ginzburg purveyed his wares was relevant to determining if they were obscene, and presented evidence that Ginzburg had purposefully marketed the materials as pornography.
Others have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene unless "(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value," emphasizing that the "'three elements must coalesce, "and that no such material can "be proscribed unless it is found to be utterly without redeeming social value." Another Justice has not viewed the "social value" element as an independent factor in the judgment of obscenity. obscene matter," in violation of Georgia's obscenity law.
Writing for the majority, Chief Justice Warren Burger laid out the new, three-part test: The basic guidelines for the trier of fact must be: (a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Burger explicitly rejected the Memoirs requirement that obscene material be found to be "utterly without redeeming social value," replacing it with the less stringent standard of lacking "serious literary, artistic, political, or scientific value." The Memoirs requirement, he wrote, created for prosecutors, "a burden virtually impossible to discharge under our criminal standards of proof." Even Justice Brennan, the author of the Memoirs opinion, abandoned the Memoirs as unworkable in his dissenting opinion to Miller's companion case, Paris Adult Theatre I v. Burger also rejected Jacobellis' requirement that the "contemporary community standards" used to evaluate whether something appeals to the "prurient interest" and is "patently offensive" must be national standards. pbs online some photos copyright © 2002 photodisc all rights reserved.
It was in this case that Justice Potter Stewart, in his concurring opinion, wrote the oft-quoted summation: "... 413 (1966) In 1965, the Massachusetts Supreme Judicial Court affirmed a lower court decision finding the erotic novel Fanny Hill, or Memoirs of a Woman of Pleasure was obscene.
[C]riminal laws in this area are constitutionally limited to hardcore pornography. The lower court had noted that the "social importance" element of the Roth test did not require that a book "must be unqualifiedly worthless before it can be deemed obscene." The U. Supreme Court reversed this decision, emphasizing that under Roth, material could not be deemed obscene unless it was "utterly without redeeming social value": it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. A book cannot be proscribed unless it is found to be utterly without redeeming social value.