Miller test
The Miller test is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.
The Miller test was developed in the 1973 case Miller v. California[1]. It has three parts:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions [2] specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary, artistic, political, and scientific value.
The third condition is also known as the (S)LAPS test ([Serious] Literary, Artistic, Political, Scientific). The work is considered obscene only if all three conditions are satisfied.
For legal scholars, several issues are important. One is that the test allows for community standards rather than a national standard. What offends the average person in Mobile, Alabama, may differ from what offends the average person in New York City. The relevant community, however, is not defined.
Another important issue is that Miller asks for an interpretation of what the "average" person finds offensive, rather than what the more sensitive persons in the community are offended by, as obscenity was defined by the previous test, the Hicklin test, stemming from the English precedent.
Because it allows for community standards and demands "serious" value, some worried that this test would make it easier to suppress speech and expression. They pointed out that it replaced a stricter test asking whether the speech or expression was "utterly without redeeming social value"--a much tougher standard than "serious" value. As used, however, the test generally makes it difficult to outlaw any form of expression. Much pornography has been successfully argued to have some artistic or literary value.
Some critics of obscenity law argue that the existence of Miller proves that federal obscenity laws are in fact not defined, and thus unenforceable and legally dubious. [3][4]
In practice, pornography showing genitalia and sexual acts is not de facto obscene according to the Miller test. For instance, in 2000 a jury in Provo, Utah, took only a few minutes to clear Larry Peterman, owner of a Movie Buffs, in Utah County, Utah, a region which had often boasted of being one of the most conservative areas in the US. Researchers had shown that guests at the local Marriott Hotel were disproportionately large consumers of pay-per-view pornographic material, obtaining far more material that way than the store was distributing [5][6].
The advent of the Internet has made this definition more difficult to maintain: as material published on a web server in one place can be read by a person residing anywhere else, there is a question as to which jurisdiction should apply. The pending case United States of America v. Extreme Associates includes some content delivered purely over the Internet and may clarify the situation.
See also
References
- ^ *Text of the decision and dissents, from findlaw.com
- ^ The syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion.
- ^ "There is no Such Thing as Obscenity". The Ethical Spectacle. February 1996.
{{cite web}}: Check date values in:|date=(help); Cite has empty unknown parameters:|accessyear=and|coauthors=(help) - ^ Huston, William A. "Under Color of Law: Obscenity vs. the First Amendment" (PDF). pp. 75–82.
{{cite web}}: Cite has empty unknown parameters:|accessyear=and|coauthors=(help) - ^ Egan, Timothy (2000-10-23). "Wall Street Meets Pornography". New York Times.
{{cite web}}: Check date values in:|date=(help); Cite has empty unknown parameters:|accessyear=and|coauthors=(help) - ^ Egan, Timothy (2000-10-24). "Wall Street Meets Pornography".
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