Miller test
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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.
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[edit] History and details
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 or scientific value. (This 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.
The first two prongs of the Miller test are held to the standards of the community, and the last prong is held to a reasonable person standard. The reasonable person standard of the last prong acts as a check on the community standard of the first two prongs, allowing protection for works that in a certain community might be considered obscene but on a national level might have redeeming value.
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 Jackson, Mississippi, 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.
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 video store, 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, accessing far more material than the store was distributing.[3][4]
[edit] Criticism
[edit] Less strict standard may lead to greater censorship
Because it allows for community standards and demands "serious" value, some worried that this test would make it easier to suppress speech and expression. Miller replaced a stricter test asking whether the speech or expression was "utterly without redeeming social value"—a much tougher standard than "serious" value.[citation needed] 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.[citation needed]
[edit] Problem of definition
Critics of obscenity law argue that defining what is obscene is paradoxical, arbitrary, and subjective. They state that lack of definition of obscenity in the statutes, coupled with the existence of hypothetical entities and standards as ultimate arbiters within the Miller Test (hypothetical "reasonable persons" and "contemporary community standards") proves that federal obscenity laws are in fact not defined, and thus unenforceable and legally dubious.[5][6]
[edit] Failure to meet Vagueness Doctrine
Some argue that because of the problem of definition, laws prohibiting obscenity do not satisfy the Vagueness doctrine and are thus null and void.[citation needed]
[edit] Problem of Jurisdiction in the Internet Age
The advent of the Internet has made the "community standards" part of the test more difficult to judge: 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.[citation needed] The pending case United States of America v. Extreme Associates includes some content delivered purely over the Internet and may clarify the situation.[citation needed]
[edit] See also
- Artistic merit
- Lady Chatterley's Lover
- Literary merit
- Jack Thompson
- L'Origine du monde
- Patently offensive
- Degenerate art
[edit] 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.
- ^ Egan, Timothy (2000-10-23). "Wall Street Meets Pornography". The New York Times. http://www.nytimes.com/2000/10/23/technology/23PORN.html?ex=1069736400&en=57fa1d3549a43013&ei=5070.
- ^ Egan, Timothy; Gary Ruskin (2000-10-24). "Wall Street Meets Pornography". http://lists.essential.org/pipermail/commercial-alert/2000/000042.html.
- ^ "There is no Such Thing as Obscenity". The Ethical Spectacle. February 1996. http://www.spectacle.org/296/obscene.html.
- ^ Huston, William A.. "Under Color of Law: Obscenity vs. the First Amendment" (PDF). 75–82. http://web.archive.org/web/20060928002640/http://www.nexusjournal.org/2005obscenity/75-82.pdf.
