The Miller test defines obscene material that is left outside the First Amendment’s freedoms of speech and press. The test asks the trier of fact in an obscenity prosecution to determine
(a) whether the ‘‘average person applying contemporary community standards’’ would find that the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
The test draws its name from Miller v. California, 413 U.S. 15 (1973), which while a major step in its delineation, was but one of a series of cases in that development.
Roth v. United States, 354 U.S. 476 (1957), recognized that obscenity is unprotected and began the process of defining that category. Roth rejected the test from the English case Regina v. Hicklin, L.R. 3 Q. B. 360 (1868), that had judged obscenity based on the effect of even isolated passages on the most susceptible person. Roth only excluded from protection material appealing to the average person’s prurient interest and required that the work be considered as a whole. Roth also defined ‘‘prurient’’ as material likely to excite lustful thoughts. Memoirs v. Massachusetts, 383 U.S. 413 (1966), added a requirement that, to be obscene, material must be ‘‘utterly without redeeming social value.’’ Miller changed that aspect by considering the work as a whole and requiring serious value. Even with Miller the development was not complete. While the test’s first two prongs employ community standards, Pope v. Illinois, 481 U.S. 497 (1987), explained that the test of serious value does not vary from community to community.
The first prong of the test has raised interesting issues. The doctrine of variable obscenity was adopted to allow the test to depart from the ‘‘average person’’ standard in cases in which the materials were marketed or distributed to specific groups. Mishkin v. New York, 383 U.S. 502 (1966), held that material directed at a sexually deviant group is to be judged by appeal to the prurient interests of that group. Ginsberg v. New York, 390 U.S. 629 (1968), similarly held that material sold to minors should be judged based on appeal to the prurient interests of minors, as well as offensiveness and value for minors.
More recently, the Court has addressed the community standards issue. While originally included so as not to require more socially conservative areas of the country to accept what would be acceptable in more tolerant areas, the application of the Miller test to the Internet raised the concern that, since access cannot be limited on a geographic basis, the most conservative areas would control the content of the Internet for the entire country. The Court addressed this concern, at least in the context of children, in Ashcroft v. A.C.L.U., 535 U.S. 564 (2002), and held that the inability to limit access community by community does not in itself prohibit regulation of the Internet.
KEVIN W. SAUNDERS
Cases and Statutes Cited