Marks v. United States
430 U.S. 188 (1977)
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Rule of Law:
The Due Process Clause of the Fifth Amendment precludes courts from applying a new, unforeseeable, and broader judicial construction of a criminal statute retroactively to conduct that occurred before the new standard was announced. When a fragmented Supreme Court issues a decision, the holding of the Court is the position taken by the Justices who concurred in the judgment on the narrowest grounds.
Facts:
- Petitioners, including Marks, engaged in conduct involving the transport of allegedly obscene materials in interstate commerce.
- This conduct occurred during a period ending on February 27, 1973.
- At the time of the conduct, the prevailing Supreme Court test for obscenity, from the plurality opinion in Memoirs v. Massachusetts, required material to be 'utterly without redeeming social value.'
- On June 21, 1973, after the petitioners' conduct was completed, the Supreme Court decided Miller v. California.
- Miller established a new three-part test for obscenity, replacing the 'utterly without redeeming social value' element with a standard of whether the work 'lacks serious literary, artistic, political, or scientific value.'
- The Miller standard made it easier for the government to secure an obscenity conviction than the Memoirs standard.
Procedural Posture:
- Petitioners were charged in the United States District Court with conspiracy and transporting obscene materials in interstate commerce.
- At trial, the district court instructed the jury using the obscenity standards from Miller v. California, over the petitioners' objection that the older Memoirs v. Massachusetts standards should apply.
- The jury convicted the petitioners on multiple counts.
- Petitioners (as appellants) appealed their convictions to the United States Court of Appeals for the Sixth Circuit.
- A divided panel of the Court of Appeals affirmed the convictions, holding that the Miller standards were properly applied.
- The United States Supreme Court granted the petitioners' writ of certiorari to resolve a circuit split on the issue.
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Issue:
Does the Due Process Clause of the Fifth Amendment permit the retroactive application of the obscenity standards announced in Miller v. California to a defendant whose conduct occurred before that decision, when those standards are more stringent than the previously governing standards from Memoirs v. Massachusetts?
Opinions:
Majority - Justice Powell
No. The Due Process Clause of the Fifth Amendment precludes the application of the standards announced in Miller v. California to the extent that those standards may impose criminal liability for conduct not punishable under Memoirs. The principle of fair warning, which is fundamental to due process, prevents an unforeseeable judicial enlargement of a criminal statute from being applied retroactively. Although Memoirs was a plurality opinion, it constituted the governing law because its holding represented the narrowest grounds on which a majority of the Court in that case could agree, a principle later articulated in Gregg v. Georgia. The Miller standard, by changing the test from 'utterly without redeeming social value' to 'lacks serious literary, artistic, political, or scientific value,' substantially expanded the scope of criminal liability for obscenity. Applying this new, harsher standard to conduct that occurred before it was announced is a violation of due process, as petitioners had no fair warning that their conduct would be judged by this new rule. Therefore, petitioners are entitled to a jury instruction based on the Memoirs standard, while also receiving any constitutional benefits the Miller standard might provide.
Concurring in part and dissenting in part - Justice Brennan
Agrees that retroactively applying the Miller definition of obscenity violates the Due Process Clause. However, he would not remand the case for a new trial. Justice Brennan adheres to his view that the federal obscenity statute, 18 U.S.C. § 1465, is unconstitutionally overbroad on its face and would therefore simply reverse the convictions.
Concurring in part and dissenting in part - Justice Stevens
Agrees with the Court's reasoning that the Miller standard cannot be applied retroactively but dissents from the judgment to remand for a new trial. He believes the prosecution is constitutionally impermissible because the statute regulates First Amendment expression, it is illogical to prosecute someone for providing material that another person has a constitutional right to possess (Stanley v. Georgia), and the constitutional standards for obscenity are intolerably vague, making evenhanded enforcement virtually impossible. He would reverse the convictions outright.
Analysis:
This decision solidifies two critical legal principles. First, it extends the due process protection of fair warning, analogous to the Ex Post Facto Clause for legislation, to judicial interpretations of criminal statutes, preventing courts from retroactively expanding the scope of criminal liability. Second, and more broadly, it establishes the controlling rule for determining the precedential holding of a fragmented Supreme Court decision: the binding rule is the position of the Justice or Justices who concurred in the judgment on the narrowest grounds. This 'narrowest grounds' rule, often called the 'Marks rule,' has become a fundamental tool for legal analysis, dictating how lower courts must interpret and apply Supreme Court precedents that lack a majority opinion.
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