Miller test
Encyclopedia
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.
. It has three parts:
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 what is reasonable to a person of the United States as a whole. The national reasonable person standard of the third 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 ipso 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.
worried in his dissent that this test would make it easier to suppress speech and expression. Miller replaced a previous test asking whether the speech or expression was "utterly without redeeming social value". As used, however, the test generally makes it difficult to outlaw any form of expression. Many works decried as pornographic have been successfully argued to have some artistic or literary value, most publicly in the context of the National Endowment for the Arts
in the 1990s.
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. In United States of America v. Extreme Associates a pornography distributor from North Hollywood, California, was judged to be held accountable to the community standards applying in western Pennsylvania, where the Third Circuit
made its ruling, because the materials were available via Internet in that area. The Ninth Circuit
has ruled
that a "national community standard" should be used for the internet, but this has yet to be upheld at the national level.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
'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
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
and can be prohibited.
History and details
The Miller test was developed in the 1973 case Miller v. CaliforniaMiller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
. It has three parts:
- Whether "the average person, applying contemporary community standardsCommunity standardsCommunity standards are local norms bounding acceptable conduct. Sometimes these standards can be itemized in a list that states the community's values and sets guidelines for participation in the community...
", would find that the work, taken as a whole, appeals to the prurient interest, - Whether the work depicts/describes, in a patently offensivePatently offensivePatently offensive is a term used in United States law regarding obscenity and the First Amendment.The phrase "patently offensive" first appeared in Roth v. United States, referring to any obscene acts or materials that are considered to be openly, plainly, or clearly visible as offensive to the...
way, sexual conduct specifically defined by applicable state law, - Whether the work, taken as a whole, lacks serious literaryLiteratureLiterature is the art of written works, and is not bound to published sources...
, artArtArt is the product or process of deliberately arranging items in a way that influences and affects one or more of the senses, emotions, and intellect....
istic, politicalPoliticsPolitics is a process by which groups of people make collective decisions. The term is generally applied to the art or science of running governmental or state affairs, including behavior within civil governments, but also applies to institutions, fields, and special interest groups such as the...
or scientificScienceScience is a systematic enterprise that builds and organizes knowledge in the form of testable explanations and predictions about the universe...
value.
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 what is reasonable to a person of the United States as a whole. The national reasonable person standard of the third 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
Jackson, Mississippi
Jackson is the capital and the most populous city of the US state of Mississippi. It is one of two county seats of Hinds County ,. The population of the city declined from 184,256 at the 2000 census to 173,514 at the 2010 census...
, may differ from what offends the average person in New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
. 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
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...
, stemming from the English precedent.
In practice, pornography showing genitalia and sexual acts is not ipso facto
Ipso facto
Ipso facto is a Latin phrase, directly translated as "by the fact itself," which means that a certain phenomenon is a direct consequence, a resultant effect, of the action in question, instead of being brought about by a subsequent action such as the verdict of a tribunal. It is a term of art used...
obscene according to the Miller test. For instance, in 2000 a jury in Provo
Provo, Utah
Provo is the third largest city in the U.S. state of Utah, located about south of Salt Lake City along the Wasatch Front. Provo is the county seat of Utah County and lies between the cities of Orem to the north and Springville to the south...
, Utah
Utah
Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
, took only a few minutes to clear Larry Peterman, owner of a Movie Buffs video store, in Utah County, Utah
Utah County, Utah
Utah County is a county located in the U.S. state of Utah. As of 2000, the population was 368,536 and by 2008 was estimated at 530,837. It was named for the Spanish name for the Ute Indians. The county seat and largest city is Provo...
, 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
Pay-per-view
Pay-per-view provides a service by which a television audience can purchase events to view via private telecast. The broadcaster shows the event at the same time to everyone ordering it...
pornographic material, accessing far more material than the store was distributing.
Less strict standard may lead to greater censorship
Because it allows for community standards and demands "serious" value, Justice DouglasWilliam O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
worried in his dissent that this test would make it easier to suppress speech and expression. Miller replaced a previous test asking whether the speech or expression was "utterly without redeeming social value". As used, however, the test generally makes it difficult to outlaw any form of expression. Many works decried as pornographic have been successfully argued to have some artistic or literary value, most publicly in the context of the National Endowment for the Arts
National Endowment for the Arts
The National Endowment for the Arts is an independent agency of the United States federal government that offers support and funding for projects exhibiting artistic excellence. It was created by an act of the U.S. Congress in 1965 as an independent agency of the federal government. Its current...
in the 1990s.
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, do not satisfy the vagueness doctrine, and thus are unenforceable and legally dubious.Problem of jurisdiction in the internet age
The advent of the InternetInternet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
has made the "community standards" part of the test more difficult to judge: as material published on a web server
Web server
Web server can refer to either the hardware or the software that helps to deliver content that can be accessed through the Internet....
in one place can be read by a person residing anywhere else, there is a question as to which jurisdiction should apply. In United States of America v. Extreme Associates a pornography distributor from North Hollywood, California, was judged to be held accountable to the community standards applying in western Pennsylvania, where the Third Circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
made its ruling, because the materials were available via Internet in that area. The Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
has ruled
United States v. Kilbride
United States v. Kilbride is a case from the United States Court of Appeals for the Ninth Circuit rejecting an appeal from two individuals convicted of violating the CAN SPAM Act and US obscenity law. The defendants were appealing convictions on 8 counts from the District Court of Arizona for...
that a "national community standard" should be used for the internet, but this has yet to be upheld at the national level.
See also
- Nitke v. GonzalesNitke v. GonzalesNitke v. Gonzalez, 413 F.Supp.2d 262 was a United States District Court for the Southern District of New York case regarding obscene materials published online. The plaintiff challenged the constitutionality of the obscenity provision of the Communications Decency Act...
(a case involving Barbara NitkeBarbara NitkeBarbara Nitke is an internationally known photographer who specializes in the subject of human sexual relations, especially in the BDSM community. Her work has been exhibited and collected for over 20 years....
and the National Coalition for Sexual FreedomNational Coalition for Sexual FreedomThe National Coalition for Sexual Freedom is a pro-sexual freedom, advocacy and educational organization founded in 1997 in the United States...
regarding internet obscenity) - Artistic meritArtistic meritArtistic merit is a term that is used in relation to cultural products when referring to the judgment of their perceived quality or value as works of art....
- Dost testDost testThe Dost test is a six-factor guideline established in the case United States v. Dost in 1996. The case involved 22 nude or semi-nude photographs of females aged 10–14 years old...
- Literary meritLiterary meritLiterary merit is a quality generally applied to the genre of literary fiction. A work is said to have literary merit if it is a work of quality, that is if it has some aesthetic value....
- Jack ThompsonJack Thompson (attorney)John Bruce "Jack" Thompson is an American activist and disbarred attorney, based in Coral Gables, Florida. Thompson is known for his role as an anti-video-game activist, particularly against violence and sex in video games....
- Patently offensivePatently offensivePatently offensive is a term used in United States law regarding obscenity and the First Amendment.The phrase "patently offensive" first appeared in Roth v. United States, referring to any obscene acts or materials that are considered to be openly, plainly, or clearly visible as offensive to the...