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Miller test

The Miller test is the United States Supreme Court's test for determining whether speech or expression can be labelled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.

The Miller test was developed in the 1973 case Miller vs. California[?]. 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 specifically defined by applicable state law,
  • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The third condition is also known as the SLAPS test. The work is considered obscene only if all three conditions are satisfied.

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 rural Nebraska may differ from what offends the average person in San Francisco. The relevant community, however, is not defined. Another is that it asks for an interpretation of what the "average" person finds offensive, rather than what the more sensitive persons in the community are offended by.

The advent of the Internet has made this definition more difficult to maintain, as material published on a New York webserver can be read on a computer by a person residing in Utah: it is then a vexed question as to which jurisdiction should apply. (Has this been resolved in U.S. law? If so, please summarize the result here).

Because it allows for community standards and demands "serious" value, some worried that this test would make it easier to suppress speech and expression. They pointed out that it replaced a stricter test asking whether the speech or expression was "utterly without redeeming social value"--a much tougher standard than "serious" value. As used, however, the test generally makes it difficult to outlaw any form of expression. Even pornography, with the exception of child pornography, is argued to have some artistic or literary value.

In practice, hard core pornography showing genitalia and sexual acts normally does not pass the Miller test. For instance, in a court case in conservative Provo, Utah in 2000, a jury quickly acquitted a video store owner of charges involving obscenity.



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