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Testing Author Article

The Supreme Court in Miller v. California established a new standard for determining what could be considered obscene materials and subject to government restrictions. The three-part test asked whether the average person, applying contemporary community standards, would find the work appeals on the whole to prurient interests; describes sexual conduct in a patently offensive way; and lacks any serious literary, artistic, political or scientific value.

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court upheld the prosecution of a California publisher for the distribution of obscene materials. In doing so, it established the test used to determine whether expressive materials cross the line into unprotected obscenity. The Miller test remains the guide in this area of First Amendment jurisprudence.

Miller convicted for distributing obscenity

In California, Covina-based publisher Marvin Miller was called in some circles the “King of Smut.” In this case, he was prosecuted in 1968 for mailing advertisements for four books — Intercourse, Man–Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography — and a film entitled Marital Intercourse. A jury then convicted Miller under a California law prohibiting the distribution of obscenity, and his conviction was affirmed by a California appeals court. Miller appealed to the U.S. Supreme Court, contending that the advertisements in question were not obscene. The Court affirmed his conviction 5-4.

Burger established three-part obscenity test

Writing for the majority, Chief Justice Warren E. Burger established a three-part test for juries in obscenity cases: “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; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The three parts of the test soon became known, in short, as the prurient interest, patently offensive, and SLAPS prongs.

The Miller standard differed from the Court’s previous obscenity standard as articulated in Memoirs v. Massachusetts (1966). A plurality in Memoirs had established that any material designated as obscene had to be “utterly without any redeeming social value,” but in Miller the Court relaxed the standard for prosecutors by requiring the material to have some “serious value.” The new standard granted “greater discretion to law enforcement agencies, judges and jurors to decide whether, under local community standards, material should be condemned as obscene” (Mathews 1973: A1).

First Amendment does not require national community standard

Burger rejected the notion that the First Amendment requires a national community standard, writing: “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” He did note that only materials that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law” constituted obscenity.

Justice William O. Douglas dissented, writing that obscenity cases “have no business in the courts.” Justice William J. Brennan Jr., joined by Justices Potter Stewart and Thurgood Marshall, also wrote a dissent, referring readers to his dissent in the companion case of Paris Adult Theatre I v. Slaton (1973), in which he argued that obscenity laws could not be drafted consistently with the First Amendment.

The Miller test remains the dominant test for both state and federal obscenity prosecutions. Criticism continues to the notion of applying “contemporary community standards.” For example, the 9th Circuit in United States v. Kilbride (2009) wrote that “a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.” 

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.​

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