# Amicus Curiae Brief — Pope v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0126%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1987 - **Citation:** 481 U.S. 497 ## Text Supreme Court, U.S. ELLED NO¥ 20 1986 | =. SPANIOL, JR. No. 85-1973 IN THE Supreme Court of the United States OCTOBER TERM, 1986 RICHARD POPE and CHARLES G. MORRISON, Petitioners, V. STATE OF ILLINOIS, Respondent. BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION, ACLU OF ILLINOIS AND PHE, INC. IN SUPPORT OF PETITIONERS HARVEY GROSSMAN K1T ADELMAN-PIERSON JANE M. WHICHER BRUCE J. ENNIS, JR. ACLU OF ILLINOIS (Counsel of Record) 220 South State Street DAVID W. OGDEN Suite 816 ENNIS, FRIEDMAN & Chicago, Illinois 60604 BERSOFF (312) 427-7330 1200 17th Street, N.W. JACK NOVIK Suite 400 DAVID GOLDSTEIN Washington, D.C. 20036 AMERICAN CIVIL (202) 775-8100 LIBERTIES UNION Attorneys for Amici Curiae 132 W. 43rd Street New York, New York 10036 (212) 944-9800 November 20, 1986 WILSON - EPES PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001 TABLE OF CONTENTS Page INTEREST OF AMICI! CURIAE ...... ] INTRODUCTION AND SUMMARY OF ARGU- MENT 2 I ot 7 I. THE LOWER COURTS’ USE OF A COMMU- NITY STANDARD IN APPLYING THE VALUE TEST VIOLATED THE FIRST AMENDMENT .............. SAE Ee elee TELE Ne 7 A. The First Amendment’s Protection of Speech Cannot Be Conditioned on the Ma- jority’s Judgment That the Speech Has , MLC LAER ena neater cee Sea 7 B. Although Community Interests in Suppress- ing “Offensive” and “Prurient’” Speech May Vary From Community to Community, the Individual’s First Amendment Interest in Disseminating or Receiving Valuable Speech is the Same in Every Community ................. 1] C. The Lower Courts’ Ruling Would Prevent Meaningful Judicial Review of the Jury’s Content-Based Determination That the Speech Lacks Value and is Therefore Un- protected by the First Amendment............. 14 D. Applying the Value Test by Reference to Varying Community Standards Would Sub- stantially Chill Speech That Has Serious Literary, Artistic, Political or Scientific Value il TABLE OF CONTENTS—Continued Il. THE COURT SHOULD LIMIT ITS HOLDING TO THE PRECISE ISSUE RAISED BY THIS CASE, BUT IF IT ADDRESSES OTHER AS- PECTS OF THE VALUE TEST IT SHOULD RULE THAT BECAUSE THE VALUE RE- QUIREMENT IS AN EXCEPTION TO THE GENERAL RULE THAT SPEECH IS PRO- TECTED REGARDLESS OF ITS VALUE, THAT REQUIREMENT MUST BE NAR- ROWLY CONSTRUED ... CONCLUSION Page iii TABLE OF AUTHORITIES CASES Page A Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964) ; - 18 Associated Press v. United States, 326 U.S. 1 TT ' - 21 Bantam Books v. Sullivan, 372 U.S. 58 (1963)-..14, 18, 19 Blount v. Rizzi, 400 U.S. 410 (1971) .. 18 Bose Corp. v. Consumers Union of United States, 166 U.S. 486 (1984) 14,17 Brockett v. Spokane Arcades, Inc., 105 8. Ct. 2794 | - oe 1] Carey v. Brown, 447 U.S. 455 (1980) ee 17 Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) 17 Chaplinsky v. New Hampshire, 315 U.S. 568 | EO rae passim City of Renton v. Playtime Theatres, Inc., 54 SS | 17 Cohen v. California. 403 U.S. 15 (1971) .. 9,11 Court v. State, 63 Wis.2d 570, 217 N.W.2d 676 EE EET Te 20 Edwards v. South Carolina, 372 U.S. 229 (1963) 9 Erznoznik v. Jacksonville, 422 U.S. 205 (1975) 3 Garcia v. Texas, 633 S.W.2d 611 (Tex. Ct. App. 4 5 Hamling v. United States, 418 U.S. 87 (1974)...... 15, 20 Hannegan v. Esquire, 327 U.S. 146 (1946) 9 Holden v. Hardy, 169 U.S. 366 (1898) ~............ 7 14 Hudgens v. NLRB, 424 U.S. 507 (1976) ..... 17 Jacobellis v. Ohio, 378 U.S. 184 (1964) ......0000... 14 Jenkins v. Georgia, 418 U.S. 153 (1974) . 15, 20 Kaplan v. California, 413 U.S. 115 (1973 ; 15 Kingsley International Pictures Corp. v. Regents, 360 U.S. 684 (1959) a 8 Kois v. Wisconsin, 408 U.S. 229 (1972) .--eee-.PASSiM Marcus v. Search Warrants of Property, 367 U.S. Tr 19 Memoirs v. Massachusetts, 383 U.S. 413 (1966)... 26 -— iv TABLE OF AUTHORITIES d Page Miller v. California, 413 U.S. 15 (1978) ..............-...pass1m Mishkin v. New York, 383 U.S. 502 (1966) .......... 12 Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).. 17 Mozert v. Hawkins County Public Schools, F. Supp. —— (E.D. Tenn., No. Civ-2-83-401, Oct. 24, 1986), 55 U.S.L.W. 2243 (Nov. 4, BITES... ccucudscenssdsassedeosbesiontapunranenssessnnesnenanenniimenntns 22 NAACP v. Button, 371 U.S. 415 (1963) .................. 8,11 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .... OR En A Ree nore oe MTD passim Paris Adult Theatre v. Slayton, 413 U.S. 49 0 ) aaa nee ; 15, 16 Pennekamp v. Florida, 328 U.S. 331 (1945) -........ 14 Penthouse Int'l, Ltd. v. " Mehalite 610 F.2d 1353 (5th Cir. 1980), cert. dismissed, 447 U.S. 931 OID os siccivisosscctiseanssnnsintineageaninananssantnnpinmianaemaatinee 4 Police De partment of Cc hicago v. Mosley, 408 U.S. 92 (1972) 2 eR alae ae 17 Rosenblatt v. Baer, 383 U.S. 75 | ae 14 Roth v. United States, 354 U.S. 476 (1957) ..........passim Schaefer v. United States, 251 U.S. 466 (1920) 9 Smith v. California, 361 U.S. 147 (1959).............. 19 Smith v. United States, 431 U.S. 291 (1977) passim Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) SE ROE, Pete EN SSIS SIR Oe AT 18 Speiser v. Randall, 357 U Ss. 513 (19! 58) .. mmmnipaledinnts 19 State v. Princess Cinema, 292 N.W.2d 807 (Wis. i ae emia A. 5 State v. Regan, 640 P.2d 725 (Wash. 1982). < 4 Tennessee v. Summers, 692 S.W.2d 435 (Tenn. Cr. App. 1985) Terminiello v. Chicago, 337 U.S. 1 (1948)........... 10 Time v. Pape, 401 U.S 979 ). ; ) x 14 United States v. 2,206 Paper Back Books, 565 F. 24 RR Rs 5 ee renee 16 United States v. Bagqnell, 679 F.2d 06 (11th Cir. 1982) | IIIT OEE. ace aT Sonne TNT 4 TABLE OF AUTHORITIES—Continued Page We st Virgin al State Board OT Rd ication y. Bar- nette, 319 U.S. 624 (1943) 8, 10 Vinte TS ). Ne ii) } (>?) k. Derded oe 507 ( 19 17) 1] Wool yy v. Maynard, 130 U.S. 7TO5 (1977) 8 MISCELLANEOUS sell, Determining Community Standards, 63 A.B.A.J. 1202 (1977) 20 Hunsaker, The 19723 Obscenity-Pornography De- cisions: Analysis, Impact, and Legislative AIl- ternatives, 11 SAN Dieco L. Rev. 906 (1974)..4, 11, 25 Lockhart & McClure, Censorship Of Obscenity: The Developing Constitutional Standards, 45 MINN. L. REv. 1 (1960) 16 Lockhart, Escape from the Chill of Uncertainty: Ewplicit Sex and the First Amendment. 9 GA. L. REv. 533 (1975) 1, 22, 25 Note, Community Standards. Class Actions, and Oh (6 nity lI nde } Mille - oe. California. > HARV. L. REV. 1838 (1975) passim Note. Communitu Standards in Ohsece nity Adjudi- cation, 66 CAL. L. REV. 1277 (1978) 4,16 F. Schauer, THE LAW OF OBSCENITY (1976) passim Schauer, Reflections on “Conte mporary Commu- nity Standards”: The Pz rpetuation of an ITr- relevant Cones pt in the Law of Obscen ty, 56 N.C. L. REv. 1 (1978) 4,11 Wash. Post, Nov. 10, 1986, at Al 22 IN THE Supreme Court of the Wuited States OCTOBER TERM, 1986 No. 85-1973 RICHARD POPE and CHARLES G. MORRISON, Petitioners, Vv. STATE OF ILLINOIS, Respondent. BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION, ACLU OF ILLINOIS AND PHE, INC. IN SUPPORT OF PETITIONERS INTEREST OF AMICI The American Civil Liberties Union is a non-partisan organization of over 250,000 members, dedicated to de- fending the fundamental liberties guaranteed in the Bill of Rights. The ACLU of Illinois is one of its state affiliates, with more than 12,000 members. The ACLU and its affiliates are devoted to defending freedom of expression under the First Amendment. They actively oppose laws and other official actions which limit the flow of information and the freedom of self-expression which the First Amendment guarantees. The ACLU opposes all restrictions on the availability of books, films and other media based on their content. 2 So long as courts permit any such restrictions, the ACLU will oppose all efforts to expand the scope of such re- strictions. The argument in this brief, however, is not based on the ACLU’s opposition to all content-based re- strictions on speech, but on currently recognizable legal principles. PHE, Inc., is a corporation organized under the laws of North Carolina. It is engaged in the business of mail- ing various materials it believes are protected by the First Amendment, including sexually explicit magazines and videotapes, throughout the United States. PHE, Inc. only mails such materials to adults, and only upon re- quest. PHE, Inc. does not have any way of ascertain- ing the community standards concerning “offensiveness,” “prurience,” or “value” of the countless communities to which it mails materials. Accordingly, unless the judg- ment below is reversed, it will be forced to cease dis- tribution of a wide range of materials it genuinely be- lieves would not be found offensive, prurient, or lacking value in the vast majority of all American communities, simply because these materials might be found lacking in value in a particular, but unknown, community. Petitioners and respondent have both consented to the filing of this brief. Their letters of consent are being filed with the Clerk of this Court. INTRODUCTION AND SUMMARY OF ARGUMENT Although the First Amendment protects almost all speech, regardless of its “value,” this Court has held that “obscenity” is one of the very rare, “well-defined and narrowly limited” exceptions to this rule.’ In creating 1 Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). In Chaplinsky, the Court indicated that “fighting words” and libelous speech are also not protected by the First Amendment. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court nar- rowed the latter exception, holding that only maliciously false this exception, the Court has reasoned that society has a legitimate but qualified interest in prohibiting “ot- fensive” and “prurient” sexual speech. Except in the context of “‘obscene’”’ speech, offensiveness and prurience are not sufficient grounds to overcome First Amendment protection for speech.* But the Court has also found that the individual’s interest in disseminating or receiving “obscene” speech is de minimis because its “value” is minimal.* Consequently, the Court has reasoned, the First Amendment does not shield a speaker of “value- less” obscenity from punishment for offending social norms of “offensiveness” and “prurience.” Consistent with this reasoning, however, the Court has long held that if speech does have serious literary, artistic, politi- cal, or scientific value it is protected by the First Amend- ment even if the “average person” considers this valuable speech to be “offensive” and “prurient’’.* This fundamental “value” principle is incorporated in the third prong of the obscenity test established in Miller v. California, 413 U.S. 15, 24 (1973). Under Miller, factfinders must look to the “average person, applying community standards” in applying the first two prongs to determine whether speech is offensive and appeals to prurient interests. But Miller does not require factfind- ers to use community standards when applying the value test. To the contrary, both Miller and subsequent de- cisions of this Court strongly suggest that Miller’s value test is not applied by reference to varying community defamatory speech is outside the protection of the First Amend- ment. 2 See Erznoznik v. Jacksonville, 422 U.S. 205 (1975) 3 Roth v. United States, 354 U.S. 476, 484-85 (1957) ; Chaplinsky, 315 U.S. at 571-72. * Miller v. California, 418 U.S. 15, 24 (1978). 4 standards.’ The view that the value test should not be applied by reference to community standards has over- whelmingly been adopted by lower courts and commen- tators.° 5 The Court’s discussion of community standards in Miller, strongly suggested that those standards were relevant only in determining “what appeals to the ‘prurient interest’ or is ‘patently offensive.’” 413 U.S. at 30. Subsequently, in Smith v. United States, 431 U.S. 291 (1977), the Court again indicated that pru- rience and offensiveness were to be determined by reference to com- munity standards, but indicated that “[l]iterary, artistic, political, or scientific value, on the other hand, is not discussed in Miller in terms of contemporary community standards.” 431 U.S. at 301. In support of this distinction, the Court cited Professor Schauer’s treatise, THE LAW OF OBSCENITY 123-124 (1976), where he explains that “[t]here has never been any indication by the Court that the merit of the material itself, as embodied in [the third prong of the Miller test], should or can vary from community to community. ... Whether a work has literary, artistic, political, or scientific value, . unlike the prurient-interest and patent-offensiveness require- ments, is not subject to the community-standards factor and is not affected by the change to local standards.” See 431 U.S. at 301. 6 United Siates v. Bagnell, 679 F.2d 826, 835 (llth Cir. 1982), cert. denied, 460 U.S. 1047 (1983); Penthouse Int'l, Ltd. v. Me- Auliffe, 610 F.2d 1353, 1363 (5th Cir. 1980), cert. dismissed, 447 U.S. 931 (1980); United States v. Heyman, 562 F.2d 316, 318 (4th Cir. 1977); Tennessee v. Summers, 692 S.W.2d 439 (Tenn. Cr. App. 1985); Garcia v. Texas, 633 S.W.2d 611, 613 (Tex. Ct. App. 1982), overruled on other grounds, Davis v. State, 658 S.W.2d 572 (Tex. Cr. App. 1983) ; State v. Regan, 640 P.2d 725, 731 (Wash. 1982) (Utter, J., concurring) ; State v. Princess Cinema, 292 N.W.2d 807, 811 (Wis. 1980); F. Schauer, THE LAW OF OBSCENITY 123-24 (1976); Hunsaker, The 1973 Obscenity-Pornography Decisions: Analysis, Impact, and Legislative Alternatives, 11 SAN DiEGO L. REV. 906, 916-17 (1974) (hereafter “Hunsaker’’) ; Lockhart, Escape from the Chill of Uncertainty: Explicit Sex and the First Amend- ment, 9 GA. L. REV. 533, 553-55 (1975) (hereafter “Lockhart”) ; Schauer, Reflections on “Contemporary Community Standards”: The Perpetuation of an Irrelevant Concept in the Law of Obscenity, 56 N.G. L. Rev. 1, 21 (1978) (hereafter “Schauer”); Note, Com- munity Standards, Class Actions, and Obscenity Under Miller v. California, 88 Harv. L. REV. 1838, 1854 (1975) (hereafter “Com- 5 Standing alone among all of the state and federal courts that have expressly resolved this issue,’ the courts below held that Illinois’ variant of Miuller’s value test can constitutionally be applied by reference to community standards.* As amici will show in Point I, this departure from an otherwise unanimous body of case law does not adequately safeguard valuable speech and therefore vio- lates the First Amendment. Milier’s value test performs a special and crucial func- tion in protecting First Amendment interests, a function to which community standards are both irrelevant and inimical. The Court has authorized the use of community standards when applying Miller’s first two prongs be- cause those prongs are aimed at determining whether there is a societal interest in prohibiting the speech at issue. Unlike the first two prongs, Miller’s value test is not designed to identify societal interests in prohibit- munity Standards’); Note, Community Standards in Obscenity Adjudication, 66 CAL. L. REV. 1277, 1286 & n.62 (1978) (hereafter “Obscenity Adjudication”). 7 At one time, the Wisconsin Supreme Court also took the view that Miller’s third prong was to be applied by reference to com- munity standards. That Court has now expressly repudiated that position. State v. Princess Cinema, 292 N.W.2d 807, 811 (Wis. 1980). ® The value test adopted in Illinois’ obscenity statute has been in- terpreted to require that material be “utterly without redeeming social value,” in order to be found obscene. Although this language is different from that employed in Miller’s third prong, this differ- ence does not make the use of community standards in the applica- tion of Illinois’ test any less constitutionally infirm. The constitu- tional problems posed by the use of community standards in a test focusing on the value of speech stem from the majoritarian nature and inherent uncertainty and variability of community standards. Consequently, if this Court agrees with the overwhelmingly accepted view that Miller’s value test cannot constitutionally be applied by reference to community standards, Illinois’ reference to community standards in applying the Illinois variant of that value test is equally unconstitutional. 6 ing speech, but instead is intended to measure and pro- tect the individual’s First Amendment interest in dis- seminating or receiving valuable speech. Community standards are not relevant to this interest, which is the individual’s and arises from the federal Constitution. In- deed, because community standards are majoritarian in nature and necessarily vary among the thousands of communities in the United States, their use would com- pletely undermine the function of Miller’s third prong, which is meant to safeguard interests that exist without reference to local majoritarian judgments. Moreover, the importance of applying the third prong on an objec- tive basis is heightened by the application of community standards in Miller’s first two prongs; it is essential that the First Amendment protection afforded by Miller not be entirely dependent on the judgments and values of local majorities. As amici will show, the decisions below are funda- mentally at odds with four of the most basic principles of First Amendment law. First, by limiting the third prong’s protection to speech that the average members of a particular community would find valuable, the [- linois courts have disregarded the central purpose of the First Amendment, which is to protect speech regardless of whether it is valued by the majority. Second, by mak- ing the basic values protected by the First Amendment a matter of local definition, the Illinois rule vitiates the concept of a “national Constitution” in which “funda- mental First Amendment limitations . . . do not vary from community to community.” Miller v. California, 413 U.S. at 30. Third, the Illinois rule completely under- mines the third prong’s critical role in safeguarding speech, by preventing meaningful judicial review of the jury’s content-based determination of whether the speech has value. Fourth, the Illinois rule undermines the pro- tection the third prong has afforded speakers who be- lieve their speech has value by making that protection 7 dependent on compliance with thousands of varying and unarticulated community standards. Because speakers outside those communities cannot possibly ascertain those standards before speaking, the Illinois rule has a sub- stantial chilling effect on speech that many individuals— including the average person in many or even most com- munities—would find valuable. For all of these reasons, the Constitution does not permit Miller’s third prong to be applied by reference to a patchwork of varying com- munity standards. In Point II, amici will urge the Court to limit its holding to the precise issue raised by this case, and to refrain from attempting further definition of the term “serious literary, artistic, political, or scientific value.” That course is particularly appropriate in this case be- cause these aspects of the value test are not even raised by the statutory variant of that test at issue here. If the Court does choose to address this issue, however, it should rule that because requiring sexually explicit speech to have value is itself an exception to the general rule that speech is protected regardless of its value, the value requirement must be narrowly construed. ARGUMENT I. THE LOWER COURTS’ USE OF A COMMUNITY STANDARD IN APPLYING THE VALUE TEST VIOLATED THE FIRST AMENDMENT. A. The First Amendment’s Protection of Speech Can- not Be Conditioned on the Majority’s Judgment That the Speech Has Value. An instruction telling the jury to decide whether the “average person, applying contemporary community standards” ® would find that the speech at issue had serious literary, artistic, political or scientific value, ef- fectively requires the jury to evaluate the speech from ® See Miller, 4138 U.S. at 24. 8 the perspective of the majority in its community. Thus, as construed and applied by the courts below, Miller’s value test does not protect speech that even a substantial minority of the community considers valuable. That ruling is contrary to basic First Amendment principles that this Court has repeatedly reaffirmed. As the Court emphasized in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 6388 (1943), “[t]he very purpose of a Bill of Rights” was to place certain subjects “beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Indeed, in Miller the Court expressly stated that “[t]he First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether ...a majority of the people approve of the ideas these works represent.” 413 U.S. at 34 (emphasis added). Miller itself therefore envisions that although offensiveness or prurience may be dependent on local majoritarian senti- ment, valuable speech does not lose its constitutional pro- tection simply because its value is recognized only by a minority. In a wide range of contexts the Court has held that speech must be protected from majoritarian hostility. For example, in Kingsley International Pictures Corp. v. Regents, 360 U.S. 684 (1959), the Court rejected the contention that a state obscenity statute was constitu- tional because it only proscribed speech that was con- trary to the “moral standards, the religious precepts and the legal code” of the majority. The Court emphasized that the First Amendment’s guarantee “is not confined to the expression of ideas that are conventional or shared by a majority.” 360 U.S. at 688-89 (emphasis added). 10 Accord Wooley v. Maynard, 430 U.S. 705, 715 (1977) (“The First Amendment protects the rights of individuals to hold a point of view different from the majority.”); NAACP v. Button 371 U.S. 415, 445 (1963) (Constitution protects expression without 9 At least two rationales underlie these cases. Initially, as Justice Harlan explained in Cohen v. California, 403 U.S. 15 (1971), in a “society as diverse and populous as ours,” the decision whether speech is valuable and worthy of consideration is left largely in “the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” 403 U.S. at 24. Thus, in Hannegan v. Esquire, 327 U.S. 146 (1946), the Court held that the Postmaster General could not deny lower mailing rates to a publication because of its allegedly poor taste, and explained that individuals should be free to judge for themselves whether speech is “trash” or has “enduring values”: Under our system of government there is an accom- modation for the widest varieties of tastes and ideas. What is good literature, what has educational value, what is refined public information, what is good art, varies with individuals as it does from one genera- tion to another. There doubtless would be a contra- riety of views concerning Cervantes’ Don Quixote, Shakespeare’s Venus & Adonis, or Zola’s Nana. From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values. 327 U.S. at 157. Justice Frankfurter, concurring in the judgment, observed that “the right of expression beyond regard to “the truth, popularity or social utility of the ideas and beliefs which are offered’); Edwards v. South Carolina, 372 U.S. 229, 237 (1963) (reversing conviction for breach of peace where the evidence “showed no more than that the opinions which [the de- fendants] were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection”) ; Schaefer v. United States, 251 U.S. 466, 482 (1920) (Brandeis, J., dissenting) (discussing the need to “preserve the right of free speech” from suppression by “well- meaning majorities”). 10 the conventions of the day” is “the very basis of a free society.” 327 U.S. at 160. See also Terminiello v. Chi- cago, 337 U.S. 1, 4 (1949) (the “right to speak freely and to promote diversity of ideas and programs is. . one of the chief distinctions that sets us apart from totali- tarian regimes”). The protection afforded expression that may not be valued by the majority is also essential because “[wle can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes.” West Virginia State Board of Edu- cation v. Barnette, 319 U.S. 624, 641-42 (1943). The lower courts’ ruling abandons these basic First Amendment principles. By restricting the protection of Miller’s value test to speech that the majority of citizens in a particular community would find valuable, the Illi nois rule has improperly denied that protection to a vast amount of speech that does have “serious literary, artis- tic, political, or scientific value.” That result is neither required by, nor consistent with, Miller’s value test. As Professor Schauer has observed, “the purpose of the obscenity laws is not to ‘level’ the available reading mat- ter to the majority or lowest common denominator of the population. . . . It is obvious that neither Ulysses nor Lady Chatterley’s Lover would have literary appeal to the majority of the population.” F. Schauer, THE LAW OF OBSCENITY 144 (1976) .™ 11 As the history of obscenity regulation bears out, permitting the evaluation of speech to rely on contemporary community stand- ards, poses particular dangers for speech that may be “ahead of its time.” Professor Schauer notes that “[d]etermining which are the serious or important or valuable works of today ... would be a simpler task if we could be sure that citizens of the future would not look back and criticize the suppression of great literature in 1975 in the same way that we in 1975 look back at 1925. But stand- ards and values do change, and one of the great difficulties with obscenity laws lies in trying to locate and protect from regulation not only those works which are fully accepted by society today, but 11 The protection of the First Amendment clearly extends to speech the majority does not find to have value, and even to speech that is positively abhorrent to the major- ity. Accordingly, Miller’s third prong cannot constitu- tionally be applied by reference to “community stand- ards.” B. Although Community Interests in Suppressing Of- fensive” and “Prurient” Speech May Vary From Community to Community, the Individual’s First Amendment Interest in Disseminating or Receiving Valuable Speech is the Same in Every Community. As noted, it has long been established that except for certain “well-defined and narrowly limited classes of speech,” Chaplinsky, 315 U.S. at 571-72, speech is con- stitutionally protected regardless of its “value.” ** These narrow classes, which include obscenity, are exceptions to this rule because the Court has found that such speech is almost completely lacking in value (rendering the indi- vidual’s interest in the speech de minimis), and there is a strong societal interest in prohibiting such speech.* The first two prongs of the Miller test, which ask whether the speech is “patently offensive” and appeals to shameful or morbid interests in sex,’* are aimed at deter- also those which might be fully accepted in 10 years.” F. Schauer, THE LAW OF OBSCENITY 136 (1976). 12 See, e.g., Cohen v. California, 403 U.S. 15, 25 (1971); New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964); NAACP v. Button, 371 U.S. 415, 445 (1963) ; Winters v. New York, 333 U.S. 507, 510 (1948). 13 See Miller, 413 U.S. at 20-21; Roth, 354 U.S. at 484-85; Chap- linsky, 315 U.S. at 571, 572. 144[n Miller, the Court used the term “prurient interest.” 413 U.S. at 24. The Court has recently explained that this refers to a shameful or morbid interest, not a “normal” or “healthy” interest in sex. Brockett v. Spokane Arcades, Inc., 105 8S. Ct. 2794, (1985). 9709 — 12 mining whether there is a legitimate societal interest in prohibiting the speech at issue. Not surprisingly, the Court has indicated that community considerations may be relevant to these inquiries.’* Thus, in deciding whether speech is “patently offensive,” reference to community standards permits the jury to determine whether the speech implicates the relevant interests of the affected community. By allowing the offensiveness issue to be judged in this manner, the Court has been able to accom- modate the varying interests that different communities may have in regulating sexually explicit speech.’® Simi- larly, use of community standards in deciding whether the speech appeals to a “shameful” or “morbid” interest in sex, allows the jury to focus on what the affected com- munity considers shameful or morbid, and also to focus on the particular audience the speech was designed to reach.** 15 However, many commentators have questioned the use of com- munity standards in applying any of Miller’s three prongs. See, e.g., Schauer, supra note 4; Hunsaker, supra note 4, at 933. 16Jn explaining why state community standards can be used to determine whether speech is patently offensive and appeals to pru- rient interests, the Court in Miller emphasized the importance of accommodating these diverse interests. Miller, 413 U.S. at 32 (“It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.”). In Smith, the Court again indicated that there are local interests in the regulation of offensive and prurient sexually explicit speech, and explained that these interests are “fully satisfie|d]” by “‘the jurors’ application of contemporary community standards.” 431 U.S. at 304 n.10. 17 See Mishkin v. New York, 383 U.S. 502, 509 (1966). The Court has indicated that reference to “community” standards is also de- signed to prevent jurors from imposing their personal views or the views of an unusually sevsitive person. Roth, 354 U.S. at 489; see Miller, 413 U.S. at 33. To that extent, the use of “community” standards, rather than the jurors’ own personal standards, might be viewed as safeguarding protected speech. This view is neces- sarily based on the questionable assumptions that “community” BEST AVA a 13 The Court has never suggested, however, that com- munity standards have any relevance to the value test in Miller’s third prong. That test requires the court to determine whether certain basic and fundamentally im- portant First Amendment interests—the right to speak and receive speech that has serious literary, artistic, po- litical, or scientific value—are implicated by the speech in question. If these paramount individual interests are implicated, that speech is protected by the First Amend- ment. The lower courts’ ruling would make this central constitutional inquiry dependent on varying community standards.. As a consequence, the individual’s basic First Amendment interest would depend largely on the com- munity in which the individual speaks or receives speech, varying widely and unpredictably among the thousands of diverse communities across the United States. Although such variation may be a regrettable but necessary concomitant of the first two prongs (because they measure the different interests that communities have in prohibiting speech), variation is clearly imper- missible in determining whether the basic First Amend- ment interests protected by the third prong are impli- vated. In Miller, for example, the Court expressly stated . that “[u]nder a national Constitution, fundamental First standards are more protective of speech than the “personal” stand- ards of jurors, and that an instruction can succeed in preventing jurors from applying their personal standards. Even if these assumptions were correct, it is clear that whatever protective value use of community standards may have is overwhelmingly out- weighed by the host of problems that it creates. First Amendment values would be far better served by directly instructing jurors not to rely on their personal opinions (or the opinions of unusually sensitive persons), and also to consider other evidence such as the judgment of experts. In short, use of community standards in the first two prongs cannot be justified as serving First Amendment goals, but only, as explained above, as identifying majoritarian in- terests in the suppression of speech. ABLE COPY 14 Amendment limitations on the powers of the States do not vary from community to community.” Miller, 413 U.S. at 30. See also Rosenblatt v. Baer, 383 U.S. 75, 84 (1966); Jacobellis v. Ohio, 378 U.S. 184, 194 (1964) ; Pennekamp v. Florida, 328 U.S. 331, 335 (1946)." As the Court has long recognized: While the people of the state may doubtless adopt such systems of laws as best conform to their own traditions and customs, the people of the entire coun- try have laid down in the Constitution of the United States certain fundamental principles to which each member of the Union is bound to accede... . Holden v. Hardy, 169 U.S. 366, 389 (1898). Because the First and Fourteenth Amendments do not envision that those “fundamental principles” will vary according to the importance attached to them by thou- sands of local communities, the lower courts’ ruling should be reversed. C. The Lower Courts’ Ruling Would Prevent Mean- ingful Judicial Review of the Jury’s Content-Based Determination That the Speech Lacks Value and is Therefore Unprotected by the First Amendment. In First Amendment speech cases, it is well-established that appellate courts, including this Court, must inde- pendently review jury findings of constitutional fact.” This requirement “reflects a deeply held conviction that judges—and particularly members of this Court—must exercise such review in order to preserve the precious liberties established and ordained by the Constitution.” Bose Corp v. Consumers Union of United States, 466 U.S. 486, 510-511 (1984). The Court has consistently re- affirmed this rule in obscenity cases, where the line be- tween constitutionally protected speech and obscenity is “dim and uncertain,’ Bantam Books v. Sullivan, 372 18 Accord F. Schauer, THE LAW OF OBSCENITY 124 (1976). 19 See, e.g., Time v. Pape, 401 U.S. 279, 284 (1971); New York Times v. Sullivan, 376 U.S. 254, 285 (1964). 15 U.S. 58, 66 (1963), and therefore the need for effective review of findings of constitutional fact is particularly acute. See Miller, 413 U.S. at 25 (recognizing “the ulti- mate power of appellate courts” to protect First Amend- ment values in obscenity cases).”° In particular, the Court has emphasized the role of appellate courts in as- suring the proper application of Miller’s value test, in- structing that “courts must always remain sensitive to any infringement of genuinely serious, literary, artistic, political or scientific expression.” Miller, 413 U.S. at 23 (emphasis added). See also Smith v. United States, 431 U.S. 291, 305 (1977). Because of the special role of juries in identifying “community standards” in a particular locale, the use of community standards in Miller’s value test would almost totally disable courts from reviewing a jury finding that speech does not have value. The Court has held that in determining the “community standard”, the jury is per- mitted to rely on its own knowledge of the community. It has suggested that because of this knowledge juries may reject any and all evidence in the record pertaining to community standards.*”* Because the most critical “evi- *° Accord Jenkins v. Georgia, 418 U.S. 158, 160 (1974); Kois v. Wisconsin, 408 U.S. 229 (1972) (per curiam). *1In determining the community standard the “juror is en- titled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination . . . .” Hamling v. United States, 418 U.S. 87, 104-05 (1974); Smith v. United States, 431 U.S. at 302. Even though the allegedly obscene material itself provides no evidence of the community’s standard, if that material is placed into evidence no additional proof is required for the jury to find that the material is obscene. Kaplan v. California, 413 U.S. 115, 121 (1973); Paris Adult Theatre v. Slayton, 413 U.S. 49, 56 (1973). *2 See, e.g., Smith v. United States, 431 U.S. 291, 297 (1977) (upholding jury finding that material was patently offensive and appealed to prurient interests in sex even though jury rejected undisputed evidence pertaining to community standards). 16 dence” of community standards (the jury’s own knowl- edge) is not a part of the record, because whatever evi- dence is in the record often provides little basis for dis- cerning the community standard,** and because juries need not articulate how they identified the standard they applied, appellate courts cannot meaningfully review jury determinations of community standards. Moreover, be- cause juries are not required to articulate the community standard they have applied, appellate courts cannot even know which community standard was applied by the jury, and consequently have no way to determine whether that standard was properly applied to the speech at issue.” Although any rule that prevents judicial review of the jury’s findings of constitutional fact in speech cases would violate the First Amendment, such a rule is espe- cially troublesome when the jury is making a content- based judgment about speech. Content-based distinctions 23 See Paris Adult Theatre, 413 U.S. at 56 n.6. 24 See Smith v. United States, 431 U.S. at 315-16 (Stevens, J., dissenting) (“[BJjecause the record never discloses the obscenity standards which the jurors actually apply, their decisions in these cases are effectively unreviewable by an appellate court.”) ; United States v. 2,200 Paper Back Books, 565 F.2d 566, 570 n.7 (9th Cir. 1977) ; Community Standards, supra note 6, at 1844; Lockhart & McClure, Censorship Of Obscenity: The Developing Constitutional Standards, 45 MINN. L. REV. 1, 112-13 (1960) ; Obscenity Adjudica- tion, supra note 6, at 1290. Hence, if community standards were employed in all three of Miller’s prongs, judicial review of the jury’s application of those prongs would be limited to determining whether the speech depicted “hard core” sexual conduct. If it did, the jury’s application of the Miller prongs could only be reversed if the reviewing court were to disregard the jury’s determination and application of the com- munity standard and decide that no community could constitu- tionally find that the speech at issue was patently offensive, appealed to prurient interests, and lacked serious value. Review on this very limited and ad hoc basis neither adequately safeguards First Amendment rights nor contributes to the evolution of workable legal principles. 17 have always been presumptively unconstitutional and sub- ject to this Court’s closest scrutiny.*®» Moreover, because juries may not be sufficiently sensitive to the values pro- tected by the First Amendment (and in particular may punish speech simply because it is unpopular), the Court has rejected otherwise constitutional legal rules because they posed an undue risk that jury findings would be in- fluenced by the content of speech. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 277 (1971); Bose Corp. v. Consumers Union, 466 U.S. 486, 510 (1984). The value test incorporated in Miller’s third prong, however, not only makes it possible, but explicitly re- quires the jury to assess the content of speech. The Court’s longstanding recognition that content-based judg- ments create grave risks to First Amendment liberties compels the conclusion that the jury’s application of this test must be subject to meaningful judicial review. The lower courts’ use of a community standard in the appli- cation of the value test, however, would have precisely the opposite result, rendering the jury’s content-based deter- mination effectively unreviewable. Although the problem of unreviewability is also posed by the use of community standards in Miller’s first two prongs, this makes it even more essential that the third prong be applied in a manner that permits effective ap- pellate review. Indeed in Smith, after observing that Miller had not discussed the third prong “in terms of contemporary community standards,” 431 U.S. at 301, the Court rejected the contention that the jury’s obscenity finding was not reviewable, relying in significant part *° City of Renton v. Playtime Theatres Inc., 54 U.S.L.W. 41°90, 4161 (1986); Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972); Carey v. Brown, 447 U.S. 455, 462-63 & n.7 (1980): Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563 n.6 (1980); Hudgens v. NLRB, 424 U.S. 507, 520 (1976). 18 on the rationale that the third prong “is particularly amenable to appellate review.” 401 U.S. at 305. Moreover, although appellate review of the application of all three prongs is important, the abrogation of appel- late review with respect to the third prong’s value test has the most serious consequences, because it is that test which assures protection of valuable speech, deemed by Miller to be of transcendent First Amendment impor- tance. If the jury mistakenly determines that the speech at issue does not have value, then speech which should be protected by the First Amendment will be suppressed and the speaker punished, with far-reaching chilling effects on the dissemination of other valuable speech. If, on the other hand, the value test is correctly applied, an error in the application of the first two prongs that results in an incorrect finding that speech is obscene will not sup- press speech that does have value. Careful judicial re- view to minimize the risk of erroneous factual findings is therefore critically important in the context of Miller’s third prong. D. Applying the Value Test by Reference to Varying Community Standards Would Substantially Chill Speech That Has Serious Literary, Artistic, Politi- cal or Scientific Value. In the many cases in which it has confronted prob- lems raised by the regulation of obscenity, this Court has consistently ruled that the standards and procedures for distinguishing between protected and unprotected speech must be carefully drawn in order to assure that laws aimed at suppressing obscene speech will not also punish or chill speech protected by the First Amend- ment.*° As we will show, the lower courts’ adoption of 26 See Roth v. United States, 354 U.S. 476, 488 (1957); Miller, 413 U.S. at 23-24: Bantam Books v. Sullivan, 372 U.S. 58, 66 (1963); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 561 (1975); Blount v. Rizzi, 400 U.S. 410, 416 (1971); A Quantity 19 a community standard for determining whether speech has value is inconsistent with that rule, and will as- suredly have a substantial chilling effect on speech that has serious literary, artistic, political or scientific value. If laws authorizing criminal punishment for individ- uals engaging in unprotected speech do not provide ade- quate notice of the speech proscribed and ailow a sig- nificant margin for error, then speakers will steer a very wide course away from the “unlawful zone.” Speiser v. Randall, 357 U.S. 518, 526 (1958). This self- censorship is “a censorship affecting the whole public Through it, the distribution of all books, both obscene and not obscene, would be impeded.” Smith v. California, 361 U.S. 147, 153-54 (1959). See New York Times v. Sullivan, 376 U.S. at 279-80. The Court has long recognized the serious danger of self-censorship in the obscenity context, where the line between unlawful “obscenity” and constitutionally pro- tected speech is unavoidably “dim and uncertain.” Ban- tam Books, 372 U.S. at 66. That danger would be greatly aggravated if the value test were applied by reference to unarticulated and varying community standards. For all speakers, but particularly those who live out- side the relevant community, and national speakers who communicate in thousands of communities, the use of community standards makes it extraordinarily difficult, and in many cases impossible, to ascertain the “unlawful zone’ of obscene speech. In discussing community stand- ards, this Court’s decisions have emphasized the great diversity of communities across this Nation ** and have acknowledged that in identifying a particular commu- nity’s standards each jury must “draw on knowledge of of Copies of Books v. Kansas, 378 U.S. 205, 212 (1964); Marcus v. Search Warrants of Property, 367 U.S. 717, 731 (1961); Smith v. California, 361 U.S. 147, 155 (1959). “7 Miller, 413 U.S. at 30. 20 the community or vicinage from which [it] comes.” * This knowledge obviously is not possessed by speakers outside the community and cannot practically be ob- tained. Indeed, the relevant community is not even speci- fied in many state obscenity statutes.” Even in states that do specify a geographic community, those communi- ties inevitably include countless subcommunities, and the speaker cannot know which of those subcommunities the jury may look to for guidance.” In deciding whether or how to speak in a particu- lar community, the speaker knows that a single mistake in ascertaining the standards of that community will subject the speaker to criminal penalties. To minimize that risk, speakers must steer a wide course away from the “dim and uncertain” line separating obscenity and protected speech in the many communities in which they are uncertain about the “community standard.” In those communities, the speaker must operate under a pre sumption of community intolerance, limiting speech to 28 Hamling, 418 U.S. at 105; see note 21 supra. 29 See Jenkins v. Georgia, 418 U.S. 153, 157 (1974) (states may refer to community standards “without further specification”’). 30 See, e.g., Bell, Determining Community Standards, 63 A.B.A.J. 1202, 1206 (1977) (This analysis of community standards polls “found that attitudes regarding the depiction of sexual matters vary markedly from one location in a city to another. For exam- ple, in one city there were residential areas where 90 per cent of the respondents felt that standards had changed in the past few years in the direction of greater acceptability regarding explicit sexual depictions in films. In the same city there were areas where only 20 per cent of the respondents noticed a change toward greater tolerance. Indeed, half of those respondents thought the changes were in the opposite direction.”); Court v. State, 683 Wis.2d 570, 217 N.W.2d 676, 679 (1974) (“The Appleton area where this case originated as well as the obvious example of Milwaukee are areas where portions of what clearly are recognizahle as integrated local communities would be governed by different standards. What would not be obscene on one side of the street might be obscene on the other.’”’). 21 that which is accepted in the least tolerant communities —in other words, the lowest common denominator. Rather than accommodating the interests of diverse com- munities, the use of community standards effectively im- poses on all communities the standards of the least tolerant. These difficulties acutely affect the practices of na- tional speakers, such as national publishers and dis- tributors of books. By entering the national marketplace of ideas, these speakers play a critical role in fostering the exchange of ideas between diverse communities.” But when confronted with the risk of criminal penalties for violating any of the thousands of unarticulated and varying community standards, they are forced to engage in self-censorship, avoiding speech in all communities 31 See Community Standards, supra note 6, at 1859 n.91 (“taken to extremes, least common denominator distributions create a uni- form national standard—the standard defined by the attitudes of the least tolerant jurisdiction”). In addition to subjecting speak- ers to thousands of different standards, the use of community standards has a chilling effect on protected speech for other rea- sons. First, it creates a strong incentive for prosecutors to “forum shop” by commencing prosecutions in those areas with the least tolerant “community standards.” Consequently, unless an objective standard is used speakers must assume that the value of their speech will be judged by the most parochial standards. Second, the use of community standards in the third prong would mean that an acquittal based on a finding of “value” in one community would have no collateral estoppel effect in a prosecution commenced in an- other community. Community standards thus increase the risk that a speaker will be subjected to multiple prosecutions. Because speak- ers cannot assume that no prosecutors will take advantage of these opportunities, the pressure to self-censor any speech that might be found obscene anywhere becomes even greater. 82 See Roth, 354 U.S. at 484; Associated Press v. United States, 326 U.S. 1, 20 (1944); New York Times v. Sullivan, 376 U.S. 254, 269 (1964). 22 that might approach the “dim line” between obscenity and constitutionally protected speech in any community.” This chilling of constitutionally protected speech is caused by the use of community standards in deciding any of Miller’s three prongs. However, use of an ob- jective standard in applying the third prong affords significant protection to speakers. If they can conclude that their speech clearly has “value” of the type speci- fied in Miller—based on their own judgment, consulta- tion with experts or law enforcement officials, or an examination of case law involving the same or similar speech—they can have some assurance that their speech will be constitutionally protected, no matter how idiosyn- cratic a particular community’s standards concerning the “prurient interests” and “patently offensive” prongs may be. This limits, somewhat, the chilling effect on “valu- able” speech of varying community standards. Because the lower courts’ ruling removes this protection, even those who engage in sexually explicit speech which they honestly believe has value cannot safely speak any- where they are uncertain of the community’s standards. The courts below have not provided the slightest justi- fication, much less a compelling or overriding justifica- tion, for adopting a rule that predictably will lead to substantial self-censorship of protected—indeed of valu- able—speech. That rule is fundamentally at odds with the First Amendment. 33 The recent decision in Mozeri v. Hawkins County Public Schools, —— F. Supp. ——— (E.D. Tenn., No. Civ-2-83-401, Oct. 24, 1986), 55 U.S.L.W. 2243 (Nov. 4, 1986) (permitting children to be excused from reading textbooks they and their parents find objec- tionable on religious grounds) has focused attention on the pres- sure to self-censor experienced by publishers in a national market. Even in textbook publication, where deviations from what is “val- ued” in diverse communities are not subject to criminal penalties, there has been widespread concern that textbooks are being “wa- tered down” because they are “aimed at satisfying many and of- fending none.” Wash. Post, Nov. 10, 1986, at Al. 23 Il. THE COURT SHOULD LIMIT ITS HOLDING TO THE PRECISE ISSUE RAISED BY THIS CASE, BUT IF IT ADDRESSES OTHER ASPECTS OF THE VALUE TEST IT SHOULD RULE THAT BECAUSE THE VALUE REQUIREMENT IS AN EXCEPTION TO THE GENERAL RULE THAT SPEECH IS PROTECTED REGARDLESS OF ITS VALUE, THAT REQUIREMENT MUST BE NAR- ROWLY CONSTRUED. Amici respectfully submit that it would be unneces- sary and inappropriate for the Court to address the precise meaning of “serious literary, artistic, political, or scientific value,” in this case because that issue is not before the Court. If, however, the Court does address that issue, it should rule that because requiring sexually explicit speech to have value is itself an exception to the general rule that speech is protected regardless of its value, the value requirement must be narrowly construed. The precise meaning of “serious literary, artistic, po- litical, and scientific value,” was not at issue below and is not raised in these appeals. Indeed, the Miller lan- guage is not even used in the Illinois test that is at issue. Hence, elaboration of that language would pro- vide no guidance to the courts below if this case is re- manded for further proceedings. In these circumstances, it is axiomatic that the Court should not elaborate the meaning of “serious literary, artistic, political, and scientific value” in this case. The importance and complexity of constitutional adjudication require that the Court limit its decision to those issues properly and necessarily before it. Perhaps nowhere is this more evident than in obscenity cases, where the dif- ficulty of the issues has frequently resulted in sharp divisions among the members of this Court. Issues raised by the phrase “serious literary, artistic, political and 24 scientific value” are no exception. They must be resolved on a case-by-case basis in the context of specific dis- putes, rather than through broad rules formulated in the abstract, without the benefit of briefing by the parties or resolution in the first instance by lower courts. Hence, the Court’s holding should be limited to requiring that the value test (or variants of that test) must be applied using an objective standard, and the Court should await a more appropriate case before addressing other sub- stantive aspects of that test. If the Court does decide to provide further instruc- tion concerning the interpretation and application of the “serious literary, artistic, political, and scientific value” test, however, it should rule that because this require- ment is an exception to the general rule that speech is protected regardless of its value, the value requirement must be narrowly construed. The history of speech reg- ulation teaches that any effort to identify speech that is not “valuable” should proceed with an awareness that it is extraordinarily difficult to make this determination using neutral principles, and that the principal victims of such efforts are often the speaker and recipient of un- conventional or unpopular ideas. These lessons are deeply rooted in the Court’s First Amendment jurisprudence, and are of paramount importance in the rare cases— such as obscenity—where the First Amendment has been construed to allow criminal punishment of speech based on its content and lack of “value.” In view of these principles, if the Court addresses the substance of the value test, amici urge it to do so in the following manner: First, the Court should indicate that the four cate- gories of “valuable speech” enumerated in Miller are not exhaustive, and should be construed flexibly.“ Any at- ~-—-— *4 See Lockhart, supra note 6, at 555 (The four categories enu- merated in Miller are “artificially limited in scope, apparently ex- 25 tempt to rigidly define “core” categories of speech pro- tected by the First Amendment is ultimately doomed to failure. The interests protected by the Amendment are too broad, and the contexts in which they arise too varied, to allow such compartmentalization.” For ex- ample, a significant amount of educational speech, in- cluding sex education of an informational rather than scientific nature, would not easily fall within any of Miller’s four categories (and clearly would not be in- cluded if they are rigidly construed).** The Miller test, cluding important first amendment values .... [T]he