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  • Writer's pictureRKPROST

Is it Obscene?

The First Amendment of the United States Constitution does not protect obscenity. In 1973, the outcome of Miller v. California resulted in the Supreme Court developing a set of requirements, which material must satisfy for one to consider it as obscene. All three prongs of the Miller Test must be satisfied to constitute obscenity.

The first part of the Miller Test depends on if the work, in the context of the material it appears in, evokes prurient interest in the average person valuing modern community standards. This means an image in a newspaper article may appear offensive on its own, but it may be protected when one considers it in the context of the whole newspaper it is a part of. The Supreme Court defines a prurient interest as “morbid or lascivious longing” (Trager 424). Jurors may use social science surveys to gather data about the community attitude to conclude if a material stirs prurient interest in the average person. The size of the geographic area used to define a community may range from a city, county, or occasionally the entire state.

Another aspect of the Miller Test requires states to clearly write their obscenity laws to rule if the work is patently offensive. The Supreme Court offered a guide to determine patent offensiveness if the material includes a “representation or descriptions of ultimate sexual acts, normal or perverted, actual or simulated” or “representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals” (Trager 426). Local community standards also dictate whether the material is patently offensive or not, but the jury must reference the Court’s examples to declare it so. However, these examples are not an all-inclusive list of patently offensive material, as “Sexually explicit material not included in the Court’s list of sexual acts could be patently offensive” (Trager 427). At a minimum, the content must include hard-core sexual conduct to satisfy a state’s obscenity law.

If material lacks serious social value in a literary, artistic, political, or scientific sphere, the material can be found as obscene. Although social value is a spectrum, “material falling in the space between ‘any social value’ and ‘serious social value’ could be found obscene if it also meets the first two parts of the Miler test” (Trager 428). In contrast to the first two prongs, the third one relies on a national standard to decide whether the work is of serious social value. When making this decision, juries may consider an expert testimony who can provide an objective perspective toward the work. If the material meets the three criteria of the Miller Test, then the work is obscene. However, I believe changes in society and content have changed the application of the Miler Test.

The increase in Internet use to spread information challenges the applicability of the Miller Test to online obscenity cases. One may download or view content on the Internet anywhere. This makes it more difficult to determine if a work is patently offensive based on local community standards when the transaction may span across city, county, state, or country lines. Additionally, society is moving toward more positive acceptance of sexual expression as a form of art or protest, which may hold social value rather than being obscene. Therefore, while the three prongs of the Miller Test sufficiently define obscene material in traditional mediums, as our society evolves, some parts of the test may need updating to reflect the changes in society.

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