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What is the legal definition of obscenity?

The U.S. Supreme Court set up a test for obscenity in its 1973 decision Miller v. California. The Court provided three “basic guidelines”:

  • “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 or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  • “Whether the work, taken as whole, lacks serious literary, artistic, political, or scientific value.”

These different guidelines are sometimes called the prurient-interest, patently offensive and serious-value prongs of the Miller test.

Can a book, videotape or other expressive material be considered obscene on the basis of one particular passage or scene?

No, the work must be considered as a whole in determining whether it has serious value. In the Court’s 2002 decision in Ashcroft v. Free Speech Coalition, Justice Anthony Kennedy wrote that this was an “essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene.”

Until the mid-20th century, many American courts did find that a single sexually explicit passage in a book could make the material obscene. These courts relied on the Hicklin rule, developed from a 19th century English case, Regina v. Hicklin. Under the Hicklin test, obscenity could be found based on even one isolated passage. The test asked “whether the tendency of the matter … is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”

Under all three parts of the Miller test, does a jury consider “community standards”?

Juries apply “contemporary community standards” to the first two prongs of the Miller test — the prurient-interest and patently offensive prongs. However, the U.S. Supreme Court ruled in its 1987 decision Pope v. Illinois that the serious-value question was to be determined by a reasonable-person standard — whether a reasonable person would judge a work to have serious value — rather than by community standards.

The Court reasoned: “Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won.”

This means that a work could receive protection under a national reasonable person standard even if the work would fail the standards of a more restrictive community.

Is the Miller test used to determine if something is child pornography?

No, the Miller test concerns obscenity, not child pornography. In its 1982 decision New York v. Ferber, the U.S. Supreme Court determined that child pornography was a separate category of expression that received no First Amendment protection.

“The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children,” the high court wrote.

For example, the Supreme Court noted that the Miller test requires that a work have no serious literary, artistic, political or scientific value before it can be considered legally obscene. But a work could have serious value yet still involve the sexual abuse of a child, the high court reasoned. The Court quoted a congressman for the proposition that “it is irrelevant to the child [who has been harmed] whether or not the material … has a literary, artistic, political or social value.”

The Supreme Court concluded:

“The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.”

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