Editing Miller test

{{short description|Obscenity test in U.S. law}}
{{for multi|the algorithm in computer science|Miller–Rabin primality test|the graduate school entrance exam|Miller Analogies Test}}

The '''''Miller''''' '''test''', also called the '''three-prong obscenity test''', is the [[Supreme Court of the United States|United States Supreme Court]]'s test for determining whether speech or expression can be labeled [[obscene]], in which case it is not protected by the [[First Amendment to the United States Constitution]] and can be prohibited.<ref name=3prong>{{citation|url=http://courses.cs.vt.edu/cs3604/lib/Censorship/3-prong-test.html|title=Three Prong Obscenity Test|work=Professionalism in Computing|publisher=Virginia Tech|access-date=June 28, 2010|archive-date=February 9, 2012|archive-url=https://web.archive.org/web/20120209202626/http://courses.cs.vt.edu/cs3604/lib/Censorship/3-prong-test.html|url-status=dead}}</ref><ref>{{cite journal |last1=Metcalf |first1=J. Todd |title=Obscenity Prosecutions in Cyberspace: The Miller Test Cannot 'Go Where No [Porn] Has Gone Before' |journal=Washington University Law Review |date=1 January 1996 |volume=74 |issue=2 |pages=481–523 |url=https://openscholarship.wustl.edu/law_lawreview/vol74/iss2/9/ }}</ref>

==History and details==
The ''Miller'' test was developed in the 1973 case ''[[Miller v. California]]''.<ref>[http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/413/15.html Text of the decision and dissents], from findlaw.com</ref> It has three parts:
*Whether "the average person, applying contemporary [[community standards]]", would find that the [[Work of art|work]], taken as a whole, appeals to the [[wiktionary:prurient|prurient]] interest,
*Whether the work depicts or describes, in a [[patently offensive]] way, sexual conduct or excretory functions<ref>The syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion.</ref> specifically defined by applicable state law,
*Whether the work, taken as a whole, lacks serious [[Literature|literary]], [[art]]istic, [[Politics|political]], or [[Science|scientific]] value.<ref group=note>This is also known as the ''(S)LAPS test''- [Serious] Literary, Artistic, Political, Scientific.</ref>

The work is considered obscene only if ''all three'' conditions are satisfied.{{cn|date=June 2021}}

The first two prongs of the ''Miller'' test are held to the standards of the community, and the third prong is based on "whether a reasonable person would find such value in the material, taken as a whole".<ref>''Pope v. Illinois'', 481 U.S. 497, 500-501 (1987).</ref>

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 one community may differ from what offends the average person in another community.<ref name=GodwinReason/> 

Another important issue is that the ''Miller'' test asks for an interpretation of what the "average" person finds offensive, rather than what the more sensitive persons in the community are offended by, as obscenity was defined by the previous test, the [[Hicklin test]], stemming from the English precedent.<ref>United States Department of Justice. (2021, November 9). Citizen's Guide to U.S. federal law on obscenity. Citizen's Guide to U.S. Federal Law on Obscenity, at Par. 1. Retrieved February 13, 2022, from https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-obscenity Archived:https://web.archive.org/web/20220213222619/https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-obscenity</ref>

In practice, pornography showing [[genitalia]] and sexual acts is not ''[[ipso facto]]'' obscene according to the ''Miller'' test. {{why?|date=February 2022}} For instance, in 2000, a jury in [[Provo, Utah]], took only a few minutes to clear Larry Peterman, owner of a Movie Buffs video store, in [[Utah County, Utah]]. He had been charged with distributing obscene material for renting pornographic videos that were displayed in a screened-off area of the store clearly marked as adults-only. The Utah County region had often boasted of being one of the most socially conservative areas in the United States. However, researchers had shown that guests at the local [[Marriott Hotel]] were disproportionately large consumers of [[pay-per-view]] [[pornographic]] material, accessing far more material than the store was distributing.<ref name=wallstreet>{{cite news|last=Egan |first=Timothy |author2=Gary Ruskin | date=24 October 2000|url=https://www.nytimes.com/2000/10/23/technology/23PORN.html |title=Wall Street Meets Pornography |newspaper=The New York Times }}</ref>

==Criticism==

===''Miller'' test may lead to greater censorship===
Because it allows for community standards and demands "serious" value, [[William O. Douglas|Justice Douglas]] worried in his dissent that this test would make it easier to suppress speech and expression. ''Miller'' replaced a previous test asking whether the speech or expression was "utterly without redeeming social value".<ref>''[[Roth v. United States]]'', 1957.</ref> As used, however, the test generally makes it difficult to outlaw any form of expression. Many works decried as pornographic have been successfully argued to have some artistic or literary value, most publicly in the context of the [[National Endowment for the Arts]] in the 1990s.<ref>{{cite web |date=February 1996 |url=http://www.firstamendmentcenter.org/public-funding-of-controversial-art |title=Public Funding of Controversial Art |publisher=The First Amendment Center |access-date=2011-11-16 |archive-date=2014-04-08 |archive-url=https://web.archive.org/web/20140408110145/http://www.firstamendmentcenter.org/public-funding-of-controversial-art |url-status=dead }}</ref>

The first two prongs of the ''Miller'' test – that material appeal to the prurient interest and be patently offensive – have been said to require the impossible: "They require the audience to be turned on and grossed out at the same time".<ref>[[Kathleen Sullivan (lawyer)|Sullivan, Kathleen]] (September 28, 1992). "The First Amendment Wars", ''The New Republic'', vol. 207, no. 14, pp. 35–38.</ref>

===Problem of jurisdiction in the Internet age===
The advent of the [[Internet]] has made the "community standards" part of the test even more difficult to judge; as material published on a [[web server]] in one place can be read by a person residing anywhere else, there is a question as to which jurisdiction should apply. In ''[[United States v. Extreme Associates]]'', a pornography distributor from [[North Hollywood, Los Angeles|North Hollywood]], California, was judged to be held accountable to the community standards applying in western Pennsylvania, where the [[United States Court of Appeals for the Third Circuit|Third Circuit]] made its ruling, because the materials were available via Internet in that area.<ref>{{Cite web |url=https://adflegal.org/detailspages/press-release-details |title=3rd Circuit ruling in Extreme obscenity case praised by director of Reagan porn commission, now ADF CEO |date=2005-12-08 |website=Alliance Defending Freedom |access-date=2019-05-31 |df=mdy-all}}</ref> The [[United States Court of Appeals for the Ninth Circuit]] has ruled in ''[[United States v. Kilbride]]'' that a "national community standard" should be used for the Internet, but this has yet to be upheld at the national level.<ref>{{cite web|url=https://scholar.google.com/scholar_case?case=17927549797826193178|title=584 F.3d 1240 (2009) / UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey A. KILBRIDE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. James Robert Schaffer, Defendant-Appellant|date=8 June 2009|access-date=8 March 2011|publisher=Court of Appeals, Ninth Circuit}}</ref>

==See also==
* [[Artistic freedom]]
* [[Artistic merit]]
* [[Dost test]]
* [[I know it when I see it]]
* [[Literary merit]]
* ''[[Nitke v. Gonzales]]'' – a case involving [[Barbara Nitke]] and the [[National Coalition for Sexual Freedom]] regarding Internet obscenity
* [[Jack Thompson (activist)|Jack Thompson]]
* ''[[United States v. Extreme Associates, Inc.]]''

==Notes==
{{reflist|group=note}}

==References==
{{reflist|30em|refs=
<ref name=GodwinReason>{{cite web|last=Godwin|first=Mike|title=Standards Issue&nbsp;– The Supreme Court, "community standards," and the Internet|url=http://reason.com/archives/2001/10/01/standards-issue|work=[[Reason Foundation]]|access-date=11 October 2012|author-link=Mike Godwin|date=October 2001}}</ref>
}}

[[Category:First Amendment to the United States Constitution]]
[[Category:Legal tests]]
[[Category:Obscenity law]]
[[Category:United States pornography law]]