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Miller v. California

A recurring problem that we have here in the United States is how to define obscenity and to answer the question is the material containing the obscenity protected the First Amendment, stating the freedom of the press provision. Finally one day the Supreme Courts ruled that obscene works are not protect by the constitution but that ruling only caused more problems. How are we to decide whether or not something is obscene; everyone is going to have their own opinion based upon their own values.

In 1973 a case came along that finally forced the Supreme Court to create standards that define if something is obscene or not. The case was Miller v. California, 413 U.S. 15. No. 70-73. Miller, after conducting a mass mailing campaign to advertise the sale of “adult” material, was convicted of violating a California statue prohibiting the distribution of obscene material. These brochures themselves primarily contained explicit pictures of men and women engaging in several different sexual acts. Some unwilling recipients of Miller s mail complained about the brochures to the police which led to his arrest and the ever so important legal proceeding.

The panel of judges, after hearing the case, ruled in a five to four favor to convict Miller of sending the obscene mail. Chief Justice Burger then modified the current test for obscene material by producing three guidelines:

1. An average person, applying to contemporary community standards must find the work, taken as a whole, has a tendency to excite lustful thoughts.

2. The work depicts sexual conduct in a patently way.

3. The work as a whole lacks serious literary, artistic, political, or scientific value.

Finally, the new Miller test also made it clear that obscenity was not to be judged on a national standard because creating one would be simply impossible. They found that it could only be done on a community-to-community standard to be effectively applied.

From this case we came up with the new standard stating that obscene material is not protected by the First Amendment and we came up with a way to define obscene material. First, only “hard-core” material could be prohibited. Second, the material must not posses any “serious value.” Third, material is to be judged on a community-to-community basis. The Miller criteria today still remains the constitutional test for obscenity.


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