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The phrase "patently offensive" first appeared in Roth v. United States, referring to any obscene acts or materials that are considered to be openly, plainly, or clearly visible as offensive to the viewing public. The Roth standard outlined what is to be considered obscene and thus not protected by the First Amendment. Chief Justice Warren E. Burger, writing for the majority in Roth, included the following definitions of what may be "patently offensive":
- "Representations or descriptions of ultimate sex acts normal or perverted, actual or simulated."
- "Representations or descriptions of masturbation, excretory functions, and lewd exhibitions of the genitals."
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