miller v. california, 413 U.S. 15 (1973)


The question the Supreme Court had to answer was whether mass mailing of flyers depicting people engaged in sexual activities could receive free speech constitutional protection.

In 1973, the Court modified and broadened the Roth test for defining obscenity and determining what types of speech could enjoy First Amendment protection.

Miller was convicted in the state of California for initialing a mass mailing campaign advertising four books - Intercourse, Man-Woman, Sex Orgies Illustrated, and An Illutrated History of Pornography. The advertisement contained graphic depiction of sexual organs and couples engaged in sexual activities.

The Supreme Court, applying a three-part test that became known as the Miller test, determined in a 5-4 decision that the mailing was obscene and affirmed the California court's holding.

Conditions to meet the Miller test for obscenity

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 or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;

    whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

All three parts of the test must be met in order to outlaw material as obscene.

Issue 1
The is no single view as to what "contemporary community standards" are. Some communities in the United States are less tolerant than others. The fear is that such a vague criterion would judge speech by the most puritan standard available.

Issue 2
Another concern is the "pattently offensive" standard, by which no difference is made between adults and minors. Since the government has stated its compelling interst in "safeguarding the physical and phychological well-being of a minor," the concern is that all materials offensive to children but not to adults would be banned.

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