marks argued decided march petitioners convicted transporting obscene materials violation federal statute conduct gave rise charge occurred miller california decided announcing new standards isolat ing hard core pornography expression protected first amendment held due process clause fifth amendment precludes retroactive application petitioners miller standards extent standards may impose criminal liability conduct punishable standards announced memoirs massachusetts bouie city columbia specifically petitioners entitled jury instructions requiring jury acquit unless finds materials involved utterly without redeeming social value time constitutional principle announced miller serve benefit petitioners must applied case hamling pp reversed remanded powell delivered opinion burger white blackmun rehnquist joined brennan filed opinion concurring part dissenting part stewart marshall joined post stevens filed opinion concurring part dissenting part post robert eugene smith argued cause petitioners brief gilbert deitch andrew dennison solicitor general bork argued cause brief assistant attorney general thornburgh jerome feit justice powell delivered opinion case presents question fully answered hamling whether standards announced miller california applied retroactively potential detriment defendant criminal case granted certiorari resolve conflict circuits petitioners charged several counts transporting obscene materials interstate commerce violation conspiracy transport materials conduct gave rise charges covered period february trial begin following october interim june decided miller california supra companion cases miller announced new standards isolat ing hard core pornography expression protected first amendment new standards also guide future interpretation federal obscenity laws clear reels film decided day miller see hamling supra petitioners argued district entitled jury instructions miller favorable formulation memoirs massachusetts plurality opinion memoirs view authoritatively stated law effect prior miller petitioners charted course conduct focused particular third part memoirs test expressive material constitutionally protected unless utterly without redeeming social value miller comparable test whether work taken whole lacks serious literary artistic political scientific value miller petitioners argue casts significantly wider net memoirs apply miller retroactively thereby punish conduct innocent memoirs violates due process clause fifth amendment much retroactive application new statute penalize conduct innocent performed violate constitution ban ex post facto laws art cl cl district overruled objections instructed jury miller standards petitioners convicted divided appeals sixth circuit affirmed reverse ii ex post facto clause limitation upon powers legislature see calder bull dall force apply judicial branch government frank mangum principle clause based notion persons right fair warning conduct give rise criminal penalties fundamental concept constitutional liberty see harriss lanzetta new jersey right protected judicial action due process clause fifth amendment bouie city columbia case involving cognate provision fourteenth amendment reversed trespass convictions finding rested unexpected construction state trespass statute state unforeseeable judicial enlargement criminal statute applied retroactively operates precisely like ex post facto law art constitution forbids state legislature barred ex post facto clause passing law must follow state barred due process clause achieving precisely result judicial construction relying bouie petitioners assert miller companion cases unforeseeably expanded reach federal obscenity statutes beyond punishable memoirs appeals rejected argument noted correctly memoirs standards never commanded assent three justices one time apparently concluded fact memoirs never became law line reasoning one must judge whether miller expanded criminal liability looking memoirs roth last comparable plenary decision prior miller majority single opinion announcing rationale behind holding although certain language roth formed basis plurality formulation memoirs roth test distinguishing obscenity protected speech fairly simple one articulate whether average person applying contemporary community standards dominant theme material taken whole appeals prurient interest indeed roth memoirs stated applicable law prior miller much commend apparent view appeals miller significantly change law think basic premise line reasoning faulty fragmented decides case single rationale explaining result enjoys assent five justices holding may viewed position taken members concurred judgments narrowest grounds gregg georgia opinion stewart powell stevens three justices joined controlling opinion memoirs two others justice black justice douglas concurred broader grounds reversing judgment reiterated position first amendment provides absolute shield governmental action aimed suppressing obscenity justice stewart also concurred judgment based view hardcore pornography may suppressed see ginzburg stewart dissenting view memoirs plurality therefore constituted holding provided governing standards indeed every appeals considered question memoirs miller read decisions materials deemed constitutionally protected unless prosecution carried burden proving utterly without redeeming social value otherwise satisfied stringent memoirs requirements memoirs therefore law miller simply clarify roth marked significant departure memoirs little doubt third test announced miller whether work lacks serious literary artistic political scientific value expanded criminal liability miller expressly observed utterly without redeeming social value test places prosecutor burden virtually impossible discharge criminal standards proof clearly thought conduct gone unpunished memoirs result conviction miller case strictly analogous bouie statutory language narrow precise fact important holding expansive construction adopted state deprived accused fair warning contrast statute involved always used sweeping language describe forbidden precisely statute sweeping reach necessarily confined within constitutional limits announced memoirs severely restricted application miller also restricts application beyond language might indicate miller undeniably relaxes memoirs restrictions effect new construction bouie petitioners engaged dicey business marketing films subject possible challenge fair warning products might subjected new standards taken special care insist fair warning statute regulates expression implicates first amendment values see buckley valeo smith goguen section statute therefore hold accordance bouie due process clause precludes application petitioners standards announced miller california extent standards may impose criminal liability conduct punishable memoirs specifically since petitioners indicted conduct occurring prior decision miller entitled jury instructions requiring jury acquit unless finds materials involved utterly without redeeming social value time reaffirm holding hamling constitutional principle enunciated miller serve benefit petitioners must applied case accordingly judgment reversed case remanded proceedings consistent opinion ordered footnotes paris adult theatre slaton kaplan california reels film orito miller held basic guidelines trier fact must whether average person applying contemporary community standards find work taken whole appeals prurient interest whether work depicts describes patently offensive way sexual conduct specifically defined applicable state law whether work taken whole lacks serious literary artistic political scientific value part test adequate statute written judicially construed specifically defines sexual conduct depiction forbidden miller offered examples state might constitutionally choose regulate patently offensive representations descriptions ultimate sexual acts normal perverted actual simulated patently offensive representations descriptions masturbation excretory functions lewd exhibition genitals plurality memoirs held three elements must coalesce material found obscene therefore outside protection first amendment must established dominant theme material taken whole appeals prurient interest sex material patently offensive affronts contemporary community standards relating description representation sexual matters material utterly without redeeming social value petitioner american news convicted conspiracy charge four petitioners convicted conspiracy also seven eight substantive counts brief oral argument contended petitioners convictions miller standards improper consequently government defend judgment appeals issue agrees petitioners convictions stand shortly memoirs response divergence opinion among members began practice disposing obscenity cases brief per curiam decisions redrup new york first least cases decided fashion collected paris adult theatre slaton brennan dissenting see books rev per curiam mm motion picture film cert dismissed sub nom unicorn enterprises ten erotic paintings groner en banc seven dissenting judges one judge concurring result constituting majority issue found memoirs stated governing standard vacated remanded consideration light miller pellegrino promotions oklahoma city huffman app conviction reversed grounds upon rehearing miller app cf grove press city philadelphia cinecom theaters midwest city fort wayne luros statute provides pertinent part whoever knowingly transports interstate foreign commerce purpose sale distribution obscene lewd lascivious filthy book pamphlet picture film paper letter writing print silhouette drawing figure image cast phonograph recording electrical transcription article capable producing sound matter indecent immoral character shall fined imprisoned five years reason instant case different rose locke broad reading statute issue upset previously established narrower construction hamling rejected challenge based bouie city columbia ostensibly similar challenge sustained similarity superficial petitioners focused part miller test see supra argued convictions stand miller requires categories material punishable statute must specifically enumerated statute authoritative judicial construction limiting construction announced time engaged conduct led convictions held made claim bouie part expand reach statute enumeration specific categories material miller might found obscene purport make criminal purpose conduct previously thought criminal reasons noted text said part miller test shifting utterly without redeeming social value lacks serious literary artistic political scientific value implicitly recognized hamling trial took place miller jury instructed accordance memoirs verdict necessarily meant found materials utterly without redeeming social value examined record determined jury verdict supported evidence consistent memoirs formulation obscenity avoid inquiry ground memoirs relevance might done miller applied retroactively respects appeals stated apparently without viewing materials mccree dissenting opinion materials obscene either memoirs miller conclusion absent dependable means knowing character materials dubious value even accept conclusion circumstances adequate substitute decision first instance properly instructed jury important element offense appeals apparently thought remand miller companion cases necessarily meant miller standards fully retroactive passage hamling quoted text simply reaffirms principle implicit miller makes clear remands carried implication cases remanded courts apply benefits miller see supra view disposition case occasion reach questions presented petition justice brennan justice stewart justice marshall join concurring part dissenting part join opinion insofar holds retroactive application definition obscenity announced miller california potential detriment criminal defendant violates due process clause fifth amendment see bouie city columbia join however judgment remanding case new trial petitioners convicted transporting obscene materials interstate commerce violation adhere view statute clearly overbroad unconstitutional face see cangiano brennan dissenting quoting orito brennan dissenting therefore simply reverse justice stevens concurring part dissenting part three reasons combination persuade criminal prosecution constitutionally impermissible first opinion recognizes statute regulates expression implicates first amendment values ante however distasteful materials us nevertheless form communication entertainment acceptable substantial segment society otherwise value marketplace second statute predicated somewhat illogical premise person may prosecuted criminally providing another material constitutional right possess see stanley georgia third present constitutional standards substantive procedural apply prosecutions intolerably vague evenhanded enforcement law virtual impossibility indeed brief experience persuaded grossly disparate treatment similar offenders characteristic criminal enforcement obscenity law accordingly agree everything said opinion unable join judgment remanding case new trial example appellate intelligently determine whether jury properly identified relevant community standards