The Volokh Conspiracy
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Interesting Obscenity Prosecution for Sending Sexually Themed Letter to Sender's 14-Year-Old Adopted Sister
From Tuesday's decision in U.S. v. Miller, by Fourth Circuit Judges Steven Agee, Marvin Quattlebaum, and Allison Rushing:
The record shows that while Miller was imprisoned in a state facility, he sent a sexually explicit letter [excerpted in relevant part on p. 2 of the Trial Brief -EV] to his adopted sister in which he described, in graphic detail, sexual acts he envisioned occurring between himself and his sister. At the time, Miller was thirty-eight years old and she was fourteen years old….
Miller was indicted for violating 18 U.S.C. § 1470, which prohibits "using the mail or any facility or means of interstate or foreign commerce" to "knowingly transfer[ ] obscene matter to another individual who has not attained the age of 16 years, knowing that such other individual has not attained the age of 16 years, or attempt[ing] to do so." … The jury convicted Miller, and … [t]he court then sentenced him to thirty-seven months' imprisonment, to run concurrently with the remainder of his state sentence, and to three years' supervised release….
The Fourth Circuit affirmed:
[T]he Court has recognized that printed words alone can be "obscene" and thus fall outside the First Amendment's protection. The Supreme Court requires balancing three prongs when determining whether something is obscene: First, we consider "whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest in sex." Appealing to prurient interest means that the material appeals to a "shameful or morbid interest in nudity, sex or excretion" or being "substantially beyond customary limits of candor in description or representation of such matters."
Second, we look to "whether the work depicts or describes, in a patently offensive way, sexual conduct." And although "contemporary community standards" originally appeared only in the first prong's description, the Supreme Court later clarified that the second prong "is also a question of fact to be decided by a jury applying contemporary community standards."
Third, we analyze "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." …
Miller contends that [the "prurient interest" and "patently offensive" prongs] of obscenity were not met because the words used in the letter are no more explicit than lyrics found in certain modern well-known songs. [Miller's brief refers to Cardi B's WAP, and its reference to "wet-ass pussy," "fuck," and "whores". -EV] … [But] because incest is taboo, evidence that the letter describes a sexually explicit fantasy involving Miller and his minor sister "may inform the jury as to whether the letter is obscene, i.e., whether it appeals to a shameful and prurient interest in sex." …
Whether material is obscene is based on its totality, looking at the three prongs the Supreme Court has identified. Although Miller's letter does not use the word "sister" or "brother" when talking about the individuals it discusses engaging in an explicit sexual encounter, it does use the words "you," "your," "I," "me," and "my." And it envisions the recipient saying "my name 'Darrin'" during the encounter.
Because this is a private letter between the sender and recipient, the identity of those two individuals—which necessarily encompasses their familial relationship and their age—provides salient context to who the words reference and precisely what sexual acts are being described. Therefore, the words within the four corners of the letter do in fact recount what would be incest involving an adult male and his fourteen-year-old sister. That reality is something the jury was free to consider in assessing whether, under contemporary community standards, the letter "appeal[s] to the prurient interest" or "portray[s] sexual conduct in a patently offensive way."
Given this conclusion, the flaws inherent in the rest of Miller's argument come into sharp relief. The letter may reasonably (and consistent with the First Amendment) be deemed obscene not just because it uses vulgar terms, but because it uses such language to describe—graphically—specific sexual acts.
Furthermore, whatever the state of contemporary music, using sexually explicit lyrics to describe conduct between two unrelated, consenting adults stands on different legal footing than using identical words to describe conduct between an adult brother and minor sister. Contrary to Miller's contention, there's simply no comparison between them in ways that are directly relevant to whether the material in question meets the first two prongs of obscenity.
The Supreme Court requires more than Justice Stewart's "know it when [we] see it" understanding of obscenity, but those words still ring true when applying the Court's requisite three-pronged assessment. Miller's choice of words combined with the specific conduct depicted between the sender and the receiver create the strong impression on the reader as to the letter's obscene nature. And the totality of the circumstances fully supports the conclusion that the letter both falls outside "customary limits of candor in description or representation of such matters" and "depicts or describes, in a patently offensive way, sexual conduct."
As I read the opinion, the court concluded that the material is obscene in general (under the Miller v. California test), and not just "obscene as to minors" (under the Ginsberg v. New York test, as modified by Miller). It thus follows that such material "recount[ing] what would be incest involving an adult male and his fourteen-year-old sister" would have been constitutionally unprotected, under the court's decision, even if sent to a consenting adult recipient. (Of course, as a statutory matter such sending to an adult wouldn't be covered under § 1470, which only covers providing obscenity to minors, but it would be covered under other obscenity statutes.)
Jennifer Rada Herrald represents the government.
