Miller v. California, the famous Supreme Court case that gave us the three prongs of the Miller test that juries still use to decide if someone should go to jail for obscenity, was decided forty years ago today, on June 21, 1973. A mere thirteen months later in July of 1974, the first issue of Hustler magazine was published. In that sense, Larry Flynt’s salacious and iconic publication and obscenity law’s defining statute were born and came of age like brothers from another mother. Forty years later, who better to ask about Miller’s controversial legacy than Larry Flynt? More than any man in this business (or perhaps the country), Flynt is personally associated with the fight against the government’s seemingly inescapable need to legislate sexual speech—or as he puts it, legislate morality. It should come as no surprise that the famous Hustler publisher refuses to soften his absolutist position regarding the First Amendment or his opinion of Miller, which by definition remains a perpetual if ineffective affront to his sense of the bright line in the sand past which the government has no business venturing.
This interview is also contained in AVN's comprehensive coverage of the 40th anniversary of Miller v California, which will be published in the upcoming July "Free Speech Issue" of AVN magazine.
AVN: What are your general thoughts about Miller?
Larry Flynt: Miller v California was a bad law made by a bunch of well-intended [Supreme Court] Justices. They made the fatal mistake of trying to define obscenity, and no one has ever been able to do that. Justice William O. Douglas once said that obscenity is like the concept of sin: it defies definition, and what might be to one is not to another; I think it’s best left in the minds of man.
But I think the justices felt a so-called moral responsibility to try to clean up our minds, but when you look at the various tests that Miller had to meet in order to be declared obscene, it’s kind of laughable. It says that pornography in itself is not obscene. So, if you don’t want pornography to be obscene, well then what is? And they said, well, if the work lacks serious political or artistic value, it could be obscene. If it appeals to the prurient interest, it could be obscene. I’ve never understood what a prurient interest is; I suppose if it appeals to some morbid interest in sex, it might be obscene.
But the justices were all over the place on this; to say that a work of art must lack serious political and social values—you really can’t separate politics and society from the whole concept of obscenity. So it was like they were in a barrel of worms trying to make some sense out of it. They felt that they would come up with these various tests that would give the prosecutors a road map to prosecute obscenity cases, but only the extreme cases ever went to jail under prosecutions on the Miller standard.
So, in light of that, did they accomplish what they wanted to accomplish, to separate out what society, or at least that jury, thought was the worst of the worst?
No, it never accomplished it. See, one question they needed to ask themselves was whether they wanted to close down all the art galleries, because most of the old Masters had a penchant for painting pornographic images, and many of them were very expensive and very famous. That’s why they basically said that pornography itself is not obscene. It’s got to meet the following tests in order to be obscene. But they were never able to separate anything out, and all of the good obscenity lawyers—and there are only a handful of them around—but they were really, really good in the 1970s and ‘80s. And the prosecutors were really no match for these guys, like Paul Cambria and Stanley Fleishman, these were some great lawyers.
What’s your impression of how the DOJ felt about Miller?
Well, there were a rash of prosecutions during the Reagan administration, but other than that, there weren’t under Clinton, there were very few under Bush, and virtually none under Obama, and it’s not that these administrations were leery of bringing these actions; it’s just that they got nowhere. It was very difficult to get a conviction because you had to get 12 people to sit on a jury, many of whom had even seen these movies, and get up there and tell their neighbors that they don’t have a right to see them. There’s a big difference between impaneling a jury to turn on a question of morals, and impaneling a jury when someone is facing a capital offense of murder. Big difference,
So after 40 years has Miller basically had no lasting impact one way or the other?
Well, it had virtually no impact, and I want to explain to you why. Pornography could not be more pervasive than it is today. It’s infiltrated the mainstream movies that exist out there, it’s on cable television, adult book stores are thriving, and there are virtually no prosecutions because it’s a worthless statute; they can’t win with that statute, and the court is afraid to go back and try to redefine it because they can’t!
Exactly. What does community even mean now?
Well, with the advent of the internet, the community has become smaller. With Miller, they left it up to individual communities to make their own standards. Well, that’s passé; it’s just not in vogue now. Community has been totally redefined.
Are you saying that the community actually becomes the 12 jurors?
In a sense, that’s right. Here’s an interesting piece of information for you. There was a study recently that showed that eight out of ten people had seen at least one adult movie. It surprised me because I thought it would have been maybe four or five out of ten had seen adult movies. I was really shocked to find out that it was eight out of ten.
What does that mean to you?
How in the world do you select a jury that’s going to send someone to prison for producing a film that you’re watching?
Now, what would you do if you were a juror on an obscenity trial and had to make a decision based on Miller? Would you be able to?
Oh yes, I could easily make a decision. I’m an absolutist when it comes to the First Amendment. I don’t think the government has a right to interfere with your thought process. You know, they can’t keep the streets clean, but they want to keep your mind free and clear.
They sure do. So do obscenity laws even matter anymore now that the anti-porn forces have shifted their argument to say it’s now a social health hazard, addictive, all of that?
The only thing that really matters is to not use children in pornography. That is a horrible plague that exists worldwide, and the people who are purveyors of that should be prosecuted to the fullest extent of the law. But not under the obscenity statute! Anyone who uses a minor to make an adult movie is violating the rights of someone who is not old enough to speak for themselves, and that’s the crime. They should have to rot in prison, I really believe that, But you know, they’re blaming the permissive society on child porn. I’ve been in this business longer than probably anyone, and I tell you, I don’t know anybody who’s into kiddie porn. It’s an underground thing. They’re not interested in making things like Hustler; they’re not interested in adult films; they’re interested in children.
So I have one last question about Miller. Because its definitions—“community,” “patently offensive” and “literary value,” to name a few—change over time in the sense that people think about them differently, doesn’t that mean that the law has actually stood the test of time?
That’s the whole point I was trying to make earlier. People will argue this point but I’m pretty firm on it. You simply cannot legislate morality, and that’s when they get in trouble. When they start to legislate morality, it falls apart; it never, ever works.