The ''Miller'' test, also called the three-prong obscenity test, is the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...

's test for determining whether speech or expression can be labeled

obscene An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin , , "boding ill; disgusting; indecent", of uncertain etymology. Generally, the term can be used to indicate strong moral ...

, in which case it is not protected by the

First Amendment to the United States Constitution The First Amendment (Amendment I) to the United States Constitution prevents Federal government of the United States, Congress from making laws respecting an Establishment Clause, establishment of religion; prohibiting the Free Exercise Cla ...

and can be prohibited.

History and details

The ''Miller'' test was developed in the 1973 case '' Miller v. California''. It has three parts: *Whether "the average person, applying contemporary

community standards As a legal term in the United States, community standards arose from a test to determine whether material is or is not Obscenity, obscene as explicated in the 1957 Supreme Court of the United States, Supreme Court decision in the matter of Roth v. U ...

", would find that the

work Work may refer to: * Work (human activity), intentional activity people perform to support themselves, others, or the community ** Manual labour, physical work done by humans ** House work, housework, or homemaking ** Working animal, an ani ...

, taken as a whole, appeals to the prurient interest, *Whether the work depicts or 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

literary Literature is any collection of written work, but it is also used more narrowly for writings specifically considered to be an art form, especially novels, plays, and poems. It includes both print and digital writing. In recent centuries, ...

art Art is a diverse range of cultural activity centered around ''works'' utilizing creative or imaginative talents, which are expected to evoke a worthwhile experience, generally through an expression of emotional power, conceptual ideas, tec ...

istic,

political Politics () is the set of activities that are associated with decision-making, making decisions in social group, groups, or other forms of power (social and political), power relations among individuals, such as the distribution of Social sta ...

, or

scientific Science is a systematic discipline that builds and organises knowledge in the form of testable hypotheses and predictions about the universe. Modern science is typically divided into twoor threemajor branches: the natural sciences, which stu ...

value.This is also known as the ''(S)LAPS test''- eriousLiterary, 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 third prong is based on "whether a reasonable person would find such value in the material, taken as a whole". 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 one community may differ from what offends the average person in another community. Another important issue is that the ''Miller'' test 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 A sex organ, also known as a reproductive organ, is a part of an organism that is involved in sexual reproduction. Sex organs constitute the primary sex characteristics of an organism. Sex organs are responsible for producing and transporting ...

and sexual acts is not '' ipso facto'' obscene according to the ''Miller'' test. For instance, in 2000, a jury in

Provo, Utah Provo ( ) is a city in and the county seat of Utah County, Utah, United States. It is south of Salt Lake City along the Wasatch Front, and lies between the cities of Orem, Utah, Orem to the north and Springville, Utah, Springville to the south ...

, took only a few minutes to clear Larry Peterman, owner of a Movie Buffs video store, in

Utah County, Utah Utah County is the second-most populous County (United States), county in the U.S. state of Utah. The county seat and largest city is Provo, Utah, Provo, which is the state's fourth-largest city, and the largest outside of Salt Lake County. As ...

. He had been charged with distributing obscene material for renting pornographic videos that were displayed in a screened-off area of the store clearly marked as adults-only. The Utah County region had often boasted of being one of the most socially conservative areas in the United States. However, researchers had shown that guests at the local

Marriott Hotel Marriott Hotels & Resorts is Marriott International's brand of full-service hotels and resorts based in Bethesda, Maryland. As of June 30, 2020, there were 582 hotels and resorts with 205,053 rooms operating under the brand, in addition to 160 h ...

were disproportionately large consumers of

pay-per-view Pay-per-view (PPV) is a type of pay television or webcast service that enables a viewer to pay to watch individual events via private telecast. Events can be purchased through a multichannel television platform using their electronic program ...

pornographic Pornography (colloquially called porn or porno) is sexually suggestive material, such as a picture, video, text, or audio, intended for sexual arousal. Made for consumption by adults, pornographic depictions have evolved from cave paintings ...

material, accessing far more material than the store was distributing.

Criticism

''Miller'' test may lead to greater censorship

Because it allows for community standards and demands "serious" value, Justice Douglas 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 The National Endowment for the Arts (NEA) is an independent agency of the United States federal government that offers support and funding for projects exhibiting artistic excellence. It was created in 1965 as an independent agency of the feder ...

in the 1990s. The first two prongs of the ''Miller'' test – that material appeal to the prurient interest and be patently offensive – have been said to require the impossible: "They require the audience to be turned on and grossed out at the same time".

Problem of jurisdiction in the Internet age

The advent of the

Internet The Internet (or internet) is the Global network, global system of interconnected computer networks that uses the Internet protocol suite (TCP/IP) to communicate between networks and devices. It is a internetworking, network of networks ...

has made the "community standards" part of the test even more difficult to judge; as material published on a

web server A web server is computer software and underlying Computer hardware, hardware that accepts requests via Hypertext Transfer Protocol, HTTP (the network protocol created to distribute web content) or its secure variant HTTPS. A user agent, co ...

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 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

United States Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts for the following federal judicial districts: * Distric ...

has ruled in '' United States v. Kilbride'' that a "national community standard" should be used for the Internet, but this has yet to be upheld at the national level.

Notes

References