BRENNAN, J., dissenting 413 U.S. ting the States to suppress all material on the unprotected side of the line. In my view, clarity cannot be obtained pursuant to this approach except by drawing a line that resolves all doubt in favor of state power and against the guarantees of the First Amendment. We could hold, for example, that any depiction or description of human sexual organs, irrespective of the manner or purpose of the portrayal, is outside the protection of the First Amendment and therefore open to suppressior by the States. That formula would, no doubt, offer much fairer notice of the reach of any state statute drawn at the boundary of the State's constitutional power. And it would also, in all likelihood, give rise to a substantial probability of regularity in most judicial determinations under the standard. But such a standard would be appallingly overbroad, permitting the suppression of a vast range of literary, scientific, and artistic masterpieces. Neither the First Amendment nor any free community could possibly tolerate such a standard. Yet short of that extreme it is hard to see how any choice of words could reduce the vagueness problem to tolerable proportions, so long as we remain committed to the view that some class of materials is subject to outright suppression by the State. 2. The alternative adopted by the Court today recognizes that a prohibition against any depiction or description of human sexual organs could not be reconciled with the guarantees of the First Amendment. But the Court does retain the view that certain sexually oriented material can be considered obscene and therefore unprotected by the First and Fourteenth Amendments. To describe that unprotected class of expression, the Court adopts a restatement of the Roth-Memoirs definition of obscenity: "The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary cornmunity standards' would find that the 49 ... BRENNAN, J., dissenting work, taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct spec fically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller v. California, ante, at 24. In apparent illustration of "sexual conduct," as that term is used in the test's second element, the Court identifies "(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated," and "(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals" Id., at 25. The differences between this formulation and the threepronged Memoirs test are, for the most part, academic.13 The first element of the Court's test is virtually identical. to the Memoirs requirement that "the dominant theme of the material taken as a whole [must appeal] to a prurient interest in sex." 383 U. S., at 418. Whereas the second prong of the Memoirs test demanded that the material be 13 While the Court's modification of the Memoirs test is small, it should still prove sufficient to invalidate virtually every state law relating to the suppression of obscenity. For, under the Court's restatement, a statute must specifically enumerate certain forms of sexual conduct, the depiction of which is to be prohibited. It seems highly doubtful to me that state courts will be able to construe state statutes so as to incorporate a carefully itemi: ed list of various forms of sexual conduct, and thus to bring them into conformity with the Court's requirements. Cf. Blount v. Rizzi, 400 U. S. 410, 419 (1971). The statutes of at least one State should, however, escape the wholesale invalidation. Oregon has recently revised its statute to prohibit only the distribution of obscene materials to juveniles or unconsenting adults. The enactment of this principle is, of course, a choice constitutionally open to every State, even under the Court's decision. See Oregon Laws 1971, c. 743, Art. 29, §§ 255–262. BRENNAN, J., dissenting 413 U.S. "patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters," ibid., the test adopted today requires that the material describe, "in a patently offensive way, sexual conduct specifically defined by the applicable state law." Miller v. California, ante, at 24. The third component of the Memoirs test is that the material must be "utterly without redeeming social value." 383 U. S., at 418. The Court's rephrasing requires that the work, taken as a whole, must be proved to lack "serious literary, artistic, political, or scientific value." Miller, ante, at 24. The Court evidently recognizes that difficulties with the Roth approach necessitate a significant change of direction. But the Court does not describe its understanding of those difficulties, nor does it indicate how the restatement of the Memoirs test is in any way responsive to the problems that have arisen. In my view, the restatement leaves unresolved the very difficulties that compel our rejection of the underlying Roth approach, while at the same time contributing substantial difficulties of its own. The modification of the Memoirs test may prove sufficient to jeopardize the analytic underpinnings of the entire scheme. And today's restatement will likely have the effect, whether or not intended, of permitting far more sweeping suppression of sexually oriented expression, including expression that would almost surely be held protected under our current formulation.. Although the Court's restatement substantially tracks the three-part test announced in Memoirs v. Massachusetts, supra, it does purport to modify the "social value" component of the test. Instead of requiring, as did Roth and Memoirs, that state suppression be limited to materials utterly lacking in social value, the Court today 49 BRENNAN, J., dissenting permits suppression if the government can prove that the materials lack "serious literary, artistic, political or scientific value." But the definition of "obscenity" as expression utterly lacking in social importance is the key to the conceptual basis of Roth and our subsequent opinions. In Roth we held that certain expression is obscene, and thus outside the protection of the First Amendment, precisely because it lacks even the slightest redeeming social value. See Roth v. United States, 354 U. S., at 484-485; "Jacobellis v. Ohio, 378 U. S., at 191; Zeitlin v. Arnebergh, 59 Cal. 2d 901, 920, 383 P. 2d 152, 165; cf. New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Garrison v. Lousiana, 379 U. S. 64, 75 (1964); Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup. Ct. Rev. 1. The Court's approach necessarily assumes that some works will be deemed obscene-even though they clearly have some social value because the State was able to prove that the value, measured by some unspecified standard, was not sufficiently "serious" to warrant constitutional protection. That result is not merely inconsistent with our holding in Roth; it is nothing less than a rejection of the fundamental First Amendment premises and rationale of the Roth opinion and an invitation to widespread suppression of sexually oriented speech. Before today, the protections of the First Amendment have never been thought limited to expressions of serious literary or political value. See Gooding v. Wilson, 405 U. S. 518 14 "All ideas having even the slightest redeeming social importance-unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion-have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." Roth v United States, supra, at 484. BRENNAN, J., dissenting 413 U.S. (1972); Cohen v. California, 403 U. S. 15, 25-26 (1971); Terminiello v. Chicago, 337 U. S. 1, 4-5 (1949). Although the Court concedes that "Roth presumed 'obscenity' to be 'utterly without redeeming social importance,'" it argues that Memoirs produced "a drastically altered test that called on the prosecution to prove a negative, i. e., that the material was 'utterly without redeeming social value'-a burden virtually impossible to discharge under our criminal standards of proof." 15 One should hardly need to point out that under the third component of the Court's test the prosecution is still required to "prove a negative"-i. e., that the material lacks serious literary, artistic, political, or scientific value. Whether it will be easier to prove that material lacks "serious" value than to prove that it lacks any value at all remains, of course, to be seen. In any casc, even if the Court's approach left undamaged the conceptual framework of Roth, and even if it clearly barred the suppression of works with at least some social value, I would nevertheless be compelled to reject it. For it is beyond dispute that the approach can have no ameliorative impact on the cluster of problems that grow out of the vagueness of our current standards. Indeed, even the Court makes no argument that the reformulation will provide fairer notice to booksellers, theater owners, and the reading and viewing public. Nor does the Court contend that the approach will provide clearer guidance to law enforcement officials or reduce the chill on protected expression. Nor, finally, does the Court suggest that the approach will initigate to the slightest degree the institutional problems that have plagued this Court and the state and federal judiciary as a direct result of the uncertainty inherent in any definition of obscenity. 15 Miller v. California, ante, at 22. |