Patently offensive
Encyclopedia
Patently 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 viewing public. The Roth standard outlined what is to be considered obscene and thus not under First Amendment protection. The Roth standard was largely replaced by the Miller test
established by Miller v. California
(1973).
Chief Justice
Warren E. Burger
, writing for the majority, included the following definitions of what may be "patently offensive":
. It has three parts:
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
and the First Amendment
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...
.
The phrase "patently offensive" first appeared in Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
, referring to any obscene acts or materials that are considered to be openly, plainly, or clearly visible as offensive to the viewing public. The Roth standard outlined what is to be considered obscene and thus not under First Amendment protection. The Roth standard was largely replaced by the Miller test
Miller test
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.-History and details:The Miller test was developed in the...
established by Miller v. California
Miller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
(1973).
Roth standard
According to the "Roth Standard" a work is obscene if:- The dominant theme of the material taken as a whole appeals to a prurient interest in sex,
- The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters,
- The material is utterly without redeeming social value
Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren E. Burger
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...
, writing for the majority, included the following definitions of what may be "patently offensive":
- "Representations or descriptions of ultimate sex acts normal or perverted, actual or simulated."
- "Representations or descriptions of masturbation, excretory functions, and lewd exhibitions of the genitals."
Miller test
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 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 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. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific).