In the interim, on June 21, 1973, the Supreme Court decided Miller v. California which announced new standards for isolating "hard core" pornography from expression protected by the First Amendment, the third test of which was "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value".

[1] Petitioners argued in the District Court that they were entitled to jury instructions not under Miller, but under the more favorable formulation of Memoirs v. Massachusetts that expressive material is constitutionally protected unless it is "utterly without redeeming social value.

"[2] The Court noted that the Constitution's Ex Post Facto Clause is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.

But the principle on which the clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty.

The view of the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards at the time the alleged crimes were committed.