The+Miller+Test

Samantha Vanosky = The Miller Test = The Miller Test is used by the United States Supreme Court to decide if speech or expression should be labeled as obscene. If it is determined that the speech or expression is obscene, it is no longer protected by the First Amendment and therefore punishable by law. Adler (1993) described the test as, “Miller set forth a new test to distinguish sexually explicit art from obscenity, protecting such art only if it demonstrates “serious artistic value”.”
 * What is the Miller Test?**

The Miller Test originated in 1973 when Marvin Miller was brought to court by the state of California for mailing sexually explicit pictures that were questionably obscene. This case was a historical landmark, because for the first time a definition for obscenity was clearly defined. Prior to this court case there had been many other people taken to court to determine if their words or expressions could be labeled as obscene. Without a clear definition of what is to be labeled as obscene rather than just artwork or free expression made decisions very difficult for a judge to decide.
 * Why did the Miller Test Originate?**

Adler (1993) notes in the //Journal of Arts Management// the qualifications for material to be labeled as obscene as determined by a three part test. Miller v. California set forth a three-part test for determining whether a given work should be labeled "obscene": (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. These are the ways each case of obscenity on trials is looked at in order to decide if the defendant is guilty of producing obscene material that is viewed by the public.
 * What are the Qualifications for Obscene Material?**

Mashima (1999) listed the ways to judge patently offensive material as "sexual acts, normal or perverted, actual or simulated". Also, "representations or descriptions of masturbation, excretory functions, or lewd exhibitions of the genitals."



Applying the qualifications of obscenity by using the Miller Test is a complicated process. Using “the average person” as a gauge for judging the material may not give an accurate portrayal of how the rest of Americans view the questionable material. Judging if material if “patently offensive” also is a subjective viewpoint. Finally, if the work is seen as literary, artistic, political, or has scientific value, it can be exempt from being labeled as obscene. It can be argued that almost any form of expression meets at least one of the qualifications mentioned above that would then consider the questionable material to not be labeled as obscene. Material that one jury finds to be obscene in one area of the country may be seen as a perfectly acceptable form of art in another more liberal part of the country. Fee (2007) notes this discrepancy, “while it is possible that juries in different parts of the country could sometimes apply that phrase differently, it is not designed as a geographically varying standard, and requires no special geographic definition.” The ambiguity and variation of the Miller Test can be problematic in applying the test in the court rooms all throughout America.
 * Complications of the Miller Test**

With the rising popularity of the World Wide Web the responsibility and ownership of expressions is beginning to become blurred. With just a click of a mouse a young child can find himself on a website that is filled with obscene content. A simple Google image search can yield hundreds of pictures many parents would find inappropriate to see themselves let alone their young children. This problem was noted by Fee (2007), “the Supreme Court has held that obscenity is defined by reference to “contemporary community standards,” it is not clear whose community standard applies for purposes of Internet communication.” The Miller Test that originated almost forty years ago needs to be updated to keep up with an ever rapidly changing society. As time moves forward people’s perceptions of obscene material have also shifted. There are television commercials, movies, and magazine advertisements that are seen as common today that would have likely been seen as obscene in decades past.
 * Obscenity Today**

Many forms of artwork could be possibly be seen as obscene. Dating back hundreds and thousands of years artists have expressed themselves with artwork that included things that could be seen as sexually explicit. Nude statues, erotic paintings, and suggestive songs could all be seen as forms of art, and therefore defended by the First Amendment guaranteeing the freedom of speech. However on the other hand the same song, sculpture, or painting that is seen to some as a form of art is seen to others as an obscenity that should not be displayed in public. The American Bar Association (1977) poses the problem of having a standard test to judge obscene material, “whether a national standard must be used, or whether it is permissible to let local standards prevail.” The article goes on to state that many communities are formed based on age, race, and even age. These communities often have similar standards of what they would classify as obscene material, and that may differ greatly from what people in another area of the United States would consider obscene.
 * Sexual Expressions as Obscene**

As mentioned above there are many problems with determining what is classified as obscene using the Miller Test. Most of these problems come from a communication barrier. The standards for defining obscene material are worded extremely vague. There is no national standard to judge material that is in question. The third standard to judge makes it possible for anyone to challenge the obscenity ruling saying the obscene material is a form of art or political expression.
 * Communication about the Miller Test**

References: Adler, A. M. (1993). Why is art on trial. //Journal of Arts Management, Law & Society//, 22(4), 323. Retrieved from EBSCO//host//. Bell, R. A. (1977). Determining Community Standards. //American Bar Association Journal//, 63(9), 1202. Retrieved from EBSCO//host//. Fee, J. (2007). Obscenity and the World Wide Web. //Brigham Young University Law Review//, 2007(6), 1691-1720. Retrieved from EBSCO//host//. Johathon Kay. Retrieved from __http://www.jkinteriordesign.co.uk/ornamental-roman-statues.htm__ Kalich, D. M., Evans, R. D., & Forsyth, C. J. (2010). Empirical Evidence, Community Standards, and the Boundaries of Obscenity: A Test Case. //Deviant Behavior//, 31(7), 579-595. doi: [|10.1080/01639620903231431] Kloman, Harry. (2005). University of Pittsburgh. Retrieved from __http://www.pitt.edu/~kloman/later.html__ Mashima, R. (1999). Problem of the Supreme Court's Obscenity Test Concerning Cyberporn: Community Standards Remaining after ACLU v. Reno. //Computer Lawyer//, 16(11), 23. Retrieved from EBSCO//host//. Willis, J. (2002). OBSCENITY. //Georgetown Journal of Gender & the Law//, 3(2), 263. Retrieved from EBSCO//host//.