Navigating US Obscenity Law: Understanding the Miller Test

The First Amendment of the U.S. Constitution guarantees freedom of speech and expression, but this protection is not absolute. One narrow category of content historically deemed outside the scope of constitutional protection is legal obscenity. The challenge of defining what constitutes unprotected obscene material, versus constitutionally protected adult or artistic expression, has perplexed courts for generations, giving rise to some of the most scrutinized legal standards in American jurisprudence.

The distinction is critical because, unlike other forms of sexually explicit material (often termed “pornography”), material found to be legally obscene can be regulated, censored, and its distribution subject to criminal prosecution under federal and state laws. This article explores the foundation of modern obscenity law: the three-part test established by the Supreme Court in the landmark 1973 case, Miller v. California.

The First Amendment Boundary: Obscenity as Unprotected Speech

The Supreme Court first officially carved out obscenity from First Amendment protection in Roth v. United States (1957). In that ruling, the Court acknowledged that “sex and obscenity are not synonymous,” clarifying that the constitutional guarantee protects the portrayal of sex in scientific works, literature, and art. Obscenity, by contrast, was defined as material that appeals to a “prurient interest”.

However, the lack of a clear, consistent definition led to widespread confusion and an unworkable standard—especially the requirement from a later ruling (*Memoirs v. Massachusetts*) that the material must be “utterly without redeeming social value”. This difficulty in defining the material led to the pivotal 1973 decision.

The Cornerstone: The Miller Test (Miller v. California, 1973)

In Miller v. California, the Supreme Court, through Chief Justice Warren E. Burger, provided new, clearer guidelines—the Miller Test—that remain the controlling standard for obscenity prosecutions today. For material to be legally deemed obscene and thus subject to regulation, all three prongs of the test must be met:

1. Appeal to the Prurient Interest

The first prong focuses on the audience’s reaction, judged by the “average person” and “contemporary adult community standards.” Prurient interest is defined as a shameful or morbid interest in nudity, sex, or excretion—not a normal, healthy interest in sex. Critically, the standard is a local one; the Supreme Court explicitly rejected the need for a national standard, acknowledging that what is tolerable in one community (e.g., Las Vegas or New York City) may be offensive in another.

2. Patently Offensive Description of Sexual Conduct

The material must depict or describe specific sexual conduct in a manner that is clearly or patently offensive. To avoid vague statutes, this prong requires that the conduct be specifically defined by the applicable state law. Examples of conduct typically covered include ultimate sexual acts (actual or simulated), masturbation, lewd exhibition of the genitals, and sado-masochistic abuse.

3. Lack of Serious Value (SLAPS Test)

The third and final prong is the only one judged on a national, objective standard, rather than local community standards. The work must, when considered as a whole, lack any Serious Literary, Artistic, Political, or Scientific value. This was a critical change from the pre-Miller “utterly without redeeming social value” test, making it easier for prosecutors to prove obscenity. If a work, no matter how offensive, has a single serious value, it is constitutionally protected.

Obscenity in the Digital Age: The Internet Challenge

The application of the Miller Test has been severely complicated by the rise of the Internet, which operates on a global scale but is subject to local law. The question is: whose “contemporary community standards” apply when a website publisher in New York City (known for generally liberal standards) is accessed by a user in rural Mississippi (known for generally conservative standards)? The Supreme Court has struggled with this issue. In cases challenging laws like the Child Online Protection Act (COPA), the Court has expressed concern that applying local community standards to online speech could lead to the substantial suppression of protected content, forcing publishers to adhere to the most restrictive standards nationwide.

Special Scrutiny: Federal Crimes and Minors

Federal law provides severe penalties for the commercial distribution, importation, and transport of obscene materials using means like the mail or interstate commerce (Title 18 U.S.C. §§ 1460-1466).

Furthermore, content involving minors is subject to a far stricter legal standard:

• Child Pornography: Visual depictions of minors engaged in sexually explicit conduct are entirely unprotected by the First Amendment, even if they do not meet the full Miller Test for obscenity. The government has a compelling interest in protecting children, which allows for broader regulation.
• Transfer to Minors: Federal law criminalizes knowingly transferring or attempting to transfer obscene matter to a minor under 16 years of age, with harsh statutory penalties.

Summary of Obscenity Law in the US

Understanding obscenity law requires careful attention to the specific standards laid out by the Supreme Court. While most sexually explicit material is protected, that which is deemed legally obscene is not.

Key Takeaways:

1. Obscenity is one of the few categories of speech that the U.S. Supreme Court has ruled is not protected by the First Amendment.
2. The controlling legal standard for determining obscenity is the Miller Test, established in the 1973 case of Miller v. California.
3. The Miller Test has three cumulative prongs: appeal to prurient interest (local standard), patently offensive (local standard, specific state law), and lack of serious value (national standard).
4. The use of contemporary community standards is a major point of confusion and legal challenge in cases involving the Internet and nationally distributed content.
5. Laws regarding material involving minors, particularly child pornography, are much stricter and largely bypass the full Miller Test requirements.

Frequently Asked Questions (FAQ)

Q1: What does “prurient interest” mean in a legal context?

A: Legally, “prurient interest” refers to a shameful or morbid interest in sex, nudity, or excretion. It is distinct from a normal, healthy sexual interest. The material must appeal to this interest in the view of the average person, applying contemporary community standards.

Q2: Is all pornography considered obscenity?

A: No. Most pornography, which is simply material of a sexual nature that is intended to arouse, is protected by the First Amendment. Only a narrow category of pornography that meets all three prongs of the Miller Test is legally defined as unprotected obscenity.

Q3: What are “contemporary community standards,” and are they national or local?

A: For the first two prongs of the Miller Test (prurient interest and patent offensiveness), the standard is local, meaning a jury in one jurisdiction may find the same material obscene while a jury in another may not. The Supreme Court has held that a single national standard is not constitutionally required.

Q4: Why are laws against child pornography different from obscenity laws for adults?

A: Laws against child pornography are distinct because the government has a compelling interest in protecting children from abuse. Therefore, federal law bans the production and distribution of child pornography regardless of whether the content meets the full Miller Test’s definition of obscenity for adults.

Q5: Does the Miller Test apply to the Internet?

A: Yes, the Miller Test is the guiding legal standard. However, its application is complicated by the Internet’s global nature, specifically regarding the use of “local community standards.” This issue has been a point of contention in several major Supreme Court cases.

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