Miller Test

What is the Miller Test?

The Miller Test is also referred to as the Three Prong Obscenity Test and the SLAPP test. The U.S. Supreme Court uses the test to determine if a material normally protected under the First Amendment is free speech or obscene material—or material that goes against the moral opinion of the time.

First Amendment protection for obscene material was denied after Roth v. United States, 354 U.S. 476, and Miller v. California 413 U.S. 15 (1973) reaffirmed the lack of protection under the First Amendment.

History of Miller v. California

The case was brought to court because Miller mailed advertisements for illustrated book that were considered adult material. Five advertising brochures were sent to a restaurant in Newport Beach, California, and the manager of the restaurant opened the package without knowing the contents. The manager never asked for the adult material, and Miller was found guilty of violating California Penal Code §311.2(a).

The illustrated books were titled Intercourse, Man-Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography, and there were multiple pictures of genitalia throughout the books.

Miller was brought to court and found guilty. The case was appealed but affirmed.

The Miller Test

The Miller Test judges a work as obscene by using the following tiers:

1. “whether “the average person, applying contemporary community standards” would find that the work taken as a whole, appeals to the prurient interest”

2. “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”

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

The Major Flaw in the Miller Test

The first two tiers of the Miller Test rely on community standards to judge the obscenity of a work or production. This presents a serious problem for determining the obscenity of works that span across the nation such as on a television show or the internet. For example, the views of a community in Utah may drastically differentiate from the views of a community in New York City.

Therefore, the major flaw in the test is subjectivity. This is why certain communities can ban books or movies. The idea of subjectivity especially presents a problem with the internet. Because there is not a national standard for obscenity, websites are subject to constant attacks from certain communities around the United States.

The Miller Test and the Internet

Perhaps one of the most high-profile cases involving obscenity and the internet was United States v. Extreme Associates. The two owners of the company, Rob Zicari and Lizzy Borden, were brought to trial by the federal government for distributing obscene pornographic movies across state lines.

The court initially dropped the charges, but the Department of Justice appealed the ruling because of the graphic content on the videos. The owners of Extreme Associated eventually pled guilty and entered a plea agreement in order to avoid another trial.