One of several “obscenity” cases decided by the Supreme Court after Miller v. California (1973), Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985), provides a gloss or clarification of the controversial three-prong Miller test.

Chief Justice Warren E. Burger’s opinion for the five-vote majority in Miller held, among other things, that in obscenity cases “[a] basic [guideline] 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 . . .” (the first of Miller’s three “prongs”). But what is “prurient interest”? In Brockett, six justices persisted in the endeavor to square the circle of obscenity and to clarify the term.

A 1982 Washington state statute declared a “moral nuisance” any place “where lewd films are publicly exhibited as a regular course of business” and any place of business “in which lewd publications constitute a principal part of the stock in trade.” Lewd was defined to be synonymous with obscene, and both terms were defined with reference to prurient interest, which, in turn, was defined to mean “that which incites lasciviousness or lust.” In the course of upholding Washington’s law against a facial challenge that had resulted in its being overturned in its entirety, the Supreme Court, through Justice Byron R. White, deferred to the analysis by the Ninth Circuit Court of Appeals of what prurient meant, even while reversing that court’s holding.

“The Court of Appeals,” Justice White wrote,“was of the view that neither Roth v. United States . . . nor later cases should be read to include within the definition of obscenity those materials that appeal to only normal sexual appetites.” White continued: “The Court of Appeals [held] . . . that the term ‘lust’ had . . . come to be understood as referring to a ‘healthy, wholesome, human reaction common to millions of well-adjusted persons in our society,’ rather than to any shameful or morbid desire.” “Construed in this way,” White concluded, “the statutory definition of prurience would include within the first part of the Miller definition of obscenity material that is constitutionally protected by the First Amendment: material that, taken as a whole, does no more than arouse, ‘good, old fashioned, healthy interest’ in sex.”

Only two of the four Miller dissenters remained on the Court — Justices William J. Brennan Jr. and Thurgood Marshall. Justices Potter Stewart and William O. Douglas were gone. Stewart’s replacement, Sandra Day O’Connor, joined the majority, albeit expressing her reservation in a concurring opinion “that the federal courts should have abstained and allowed the Washington courts an opportunity to construe the state law in the first instance.” Douglas’s successor, John Paul Stevens, also voted with the majority. Although Stevens’s goal in doing so is difficult to determine, he may have signed onto an opinion clarifying the ambiguities of the Miller test, knowing that Miller was not likely to be overturned.

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