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"Miller" test

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Overview Edit

The U.S. Supreme Court has created a three-part test, known as the "Miller" test,[1] to determine whether a work is obscene. The "Miller" test asks:

(a) whether the 'average person applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[2]

The Supreme Court has clarified that only “the first and second prongs of the "Miller" test — appeal to prurient interest and patent offensiveness — are issues of fact for the jury to determine applying contemporary community standards.”[3] As for the third prong, “[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.”[4]

In Brockett v. Spokane Arcades, the Supreme Court held that material is not obscene if it “provoke[s] only normal, healthy sexual desires.” To be obscene it must appeal to “a shameful or morbid interest in nudity, sex, or excretion.”[5]

When a federal statute refers to “obscenity,” it should be understood to refer only to pornography that is obscene under the Miller standard, as application of the statute to other material would ordinarily be unconstitutional.

References Edit

  1. The name is derived from the Court's decision in Miller v. California, 413 U.S. 15, 27 (1973)(full-text).
  2. Id. at 24 (citation omitted). In Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498 (1984)(full-text), the Court struck down a state statute to the extent that it defined “prurient” as “that which incites lasciviousness or lust.” The Court held that a publication was not obscene if it “provoked only normal, healthy sexual desires.” To be obscene it must appeal to “a shameful or morbid interest in nudity, sex, or excretion.” In Manual Enterprises v. Day, 370 U.S. 478, 480 (1962)(full-text), the Court indicated that photographs of nude male models, although they appealed to the prurient interest and lacked literary, scientific, or other merit, were not patently offensive merely because they were aimed at homosexuals. In Jenkins v. Georgia, 418 U.S. 153, 160 (1974)(full-text), the Court held that the film “Carnal Knowledge” was not obscene, writing: “Even though questions of appeal to the ‘prurient interest’ or of patent offensiveness are ‘essentially questions of fact,’ it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is ‘patently offensive.’” In Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)(full-text), Justice Stewart, concurring, noted that “criminal laws in this area are constitutionally limited to hard-core pornography, which he would not attempt to define. Then followed his famous remark: 'But I know it when I see it, and the motion picture involved in this case is not that.' The motion picture was a French film called 'Les Amants' ('The Lovers').
  3. Pope v. Illinois, 481 U.S. 497, 500 (1987)(full-text). In Hamling v. United States, 418 U.S. 87, 105 (1974)(ful-text), the Court noted that a “community” was not any “precise geographic area,” and suggested that it might be less than an entire state. In Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 577 (2002)(full-text), the Supreme Court recognized that “Web publishers currently lack the ability to limit access to their sites on a geographic basis,” and that therefore the use of community standards to define 'obscenity' “would effectively force all speakers on the Web to abide by the ‘most puritan’ community’s standards.” Nevertheless, the Court found that use of community standards “does not by itself render” a statute unconstitutional.” Id. at 585 (emphasis in original).
  4. Pope, 481 U.S. at 500-01.
  5. 472 U.S. 491, 498 (1984)(full-text).

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