Miller Test
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Miller Test


Okay. The first amendment chapter. We’ve been talking a little bit in the First Amendment about free exercise of religion. We’ve been talking
a little bit about the Establishment Clause. I mentioned to you that there are five basic freedoms that are protected in the First Amendment: freedom of speech, freedom of religion, freedom of the press, freedom of petition, or to petition the
government for redress of grievances, and certainly the assembly, the right to
assemble. Part of the first amendment overall,
when you think about, is really the word expression. You are free to express your beliefs.
You’re free to express your values. You can do this within the context
obviously of your religion, your speech, the groups that you associate, the
writings that you have, and frankly the things that you petition
the government for. One of the ways that people express themselves sometimes certainly could be political. It could
be completely appropriate. It could be a protest regarding President Obama for
example. It could be protest regarding former President Bush,
These things would be acceptable. There are also however, some things that are out there that would be considered obscene or
obscenity. What I wanted to do in this video is basically give you the test for obscenity and
there are three basic parts to this test. If something fails all three of these parts
to this particular test then it is obscene and it is not
protected under the First Amendment’s right to express yourself. It is not
protected if it fails all three. If it meets one of these three, as few as one, it will be protected under
the First Amendment and somebody can do or say these things. Now, this test that I’m giving you is actually known as the Miller test. As I said there’s three prongs to
this test. Prong one: the content in question, the material in
question, must appeal to a prurient interest
according to community standards. What does this mean? A prurient interest is a sexual, it’s a lustful, its a lascivious interest.
So basically what we’re saying is is that this is going to be dealing with
something that’s going to be at least minimally risque, probably more so though. And the other
trick with this is is that it is based on individual community standards. Now if I’m filming today in DC, outside of the nation’s capital, a big
metropolitan area and a little bit further north than North
Carolina. Let’s say that North Carolina has got some fairly moderate views on what would be a obscene. DC, being further north, is probably gonna
have a little more liberal views on what would be viewed as obscene and then the community standards in a place
like New York City are probably going to be further still and what I’m saying here is the further that you go north, odds are, the more community standards are going
to allow more prurient or sexual type materials. In North Carolina, if it’s moderate, if
you go further south to say, I don’t know, South Carolina, or you go further south to Alabama or Mississippi, well you’re probably going to have
community standards that are going to be significantly more stringent. Meaning less prurient
interest, prurient type material is going to be
protected. Now the second thing up here. It must display sexual conduct. It must
display, and the key word is, offensive sexual conduct. Now think about this Prurient interest and sexual conduct according to community standards, and it must be offensive. Well,what is
offensive is gonna be determined on what the community standards are. So I guess basically what we’re saying
here is that the Miller test is really allowing local communities to be able to, according to their
own standards, determine what should be allowed and what shouldn’t. And they’re gonna take into account
their fifty different states.There are considerably more cities and counties
and what not than states. So certainly when you think about it,
they’re going to be able to cater their community interest to what is
actually allowed and maybe more importantly what’s going to be banned. Typically, you can say that something
appeals to a prurient interest. Typically it’s pretty easy to decide that
sexual conduct, even offensive sexual conduct, is displayed. The catch although is the third one:
literary, artistic, political or scientific value. The key thing and really the big word on here, is that for something to be obscene, it must lack literary, artistic, political or
scientific value. Think about this, you could demonstrate
something that meets a prurient interest. You could demonstrate something that is
an offensive sexual conduct, but if there is anything in there that’s
a literary, artistic, political or scientific, this now means that that material is not obscene. In fact it’s gonna be protected under the First Amendment. Now let me give you an example. I want
you think about this and I need to be a little bit careful, how many of you have really watched a pornographic film? Not necessarily the whole thing, maybe just the good parts. Maybe just some parts. It doesn’t really matter, but the bottom line is how many of you
have really watched a pornographic film? Now this is going to sound silly, but think about it. Is it just sex? Well, no. There’s typically, from what I
hear mind you, there’s typically kind of a cheesy story line to it. Alright, if you’re talking about pornographic
film, regardless of what genre it is, does it appeal to a prurient interest? Sexual, lustful, lascivious. Well, if it’s a
good pornographic film, it probably is. Does it display offensive sexual conduct?
Again it probably will, again depending upon
community standards. Having said this, does it lack literary,
artistic, political, or scientific value? No. This is where that cheesy story line
comes in. Because when you think about it, that is
the literary value. If you were just nothing but sex in
these movies, well that would lack any of these other
things. That would make it obscene. But as soon as you add in that
literary reference, no matter how cheesy or
how light that story line is, as long as that
story line is there, it will be protected under the First
Amendment because it has some redeeming literary value. That would be a pornographic film. Think about a strip club. How many of you have ever been to a strip club? Or maybe a better question
would be how many have you or someone you know has ever been to a
strip club? Why do people go? They go there. Does
it appeal to a prurient interest? Absolutely it does. They’re dancing. Does
it display offensive sexual conduct? This is
debatable. You could probably make a case that it
does. You could certainly probably make the case that it doesn’t, but the bottom line is is that this
could meet both of these too. Literary, artistic, political or
scientific value. Does a strip club lack this? Well its not literary this time. When you think about it, now you’re
dealing with artistic content because they are dancing. The dance is gonna be artistic. When you think about the shakes and the
moves in all these other things, the bottom line is is that this will
make the strip club legal. Again, because of this artistic content.
In fairness, some areas are are going to outlaw these things or maybe not necessarily outlaw them, but they will put limits on how much
stripping can be done. That’s fine, but if somebody just gets up
there takes off their clothes, there’s nothing to it. As soon as they begin to dance it becomes artistic and that makes it, makes it protectable. Now, there were a
couple of other things and we’re talking about obscenity within the context of sexuality, prurient interest, strip clubs,
things like this. You could also be obscene in other measures as well. There was an artist who had got public
funding from the United States government, federal funding from the United States
government to make art. To make art. This what he did. He got
federal money, he went and he got a little plastic
container, he urinated in the container and he hung a crucifix with Jesus on the crucifix in the urine. His art, as he called it, was called Piss
Christ. There’s obviously a statement that’s
gonna be there. I suspect that the statement would be difficult to say that
it would be flattering for Christianity or for Jesus or for the crucifix for
that matter, but for our purposes, So what the guy did, now think about this, he got federal money, he peed into a container, he hung a crucifix in it and he called it art. Does this appeal to a prurient interest? Sexual, lustful or lascivious? Well, no, it doesn’t. Does this display offensive sexual conduct? Well, no it doesn’t. Does this lack literary,
artistic, political, or scientific value? A lot of folks, particularly in the South would say this completely lacks any value
whatsoever. But, having said this, it did not demonstrate the prurient interest. It did not demonstrate offensive sexual conduct. You only need one of these things in
order to be able to be protected and believe it or not, it was legal a
number of years back for the federal government to fund this kind of art. So, the obscenity test doesn’t necessarily have to be sexual. The obscenity test could be something
that would just be viewed as inappropriate, in your face kind of thing.
A couple of other things. Child pornography. Believe it or not, child pornography is completely illegal
in the United States save one category. With the exception of
one category, child pornography is completely illegal in
the United States. Now think about this, you don’t
necessarily think about child porn as being something that would be under the
First Amendment. But, pornography is considered expression.
In some instances it could be considered literary or artistic quite frankly. So
when you put this into context maybe that makes it make a little bit more sense. Some folks
might say that’s never gonna fall within the First Amendment, but nonetheless, for our purposes it is completely illegal
to use children in pornographic situations with the exception of if it is a complete
cartoon situation. So, with this in mind, if you’ve
got children in cartoons they’re not real
children so, believe it or not, that’s actually
something that’s gonna be protected under the First Amendment. But, if you have somebody that is a child,
obviously that’s completely illegal. If you have somebody that is a grown up that
is digitally remastered to be a child, believe it or not, that is completely
illegal even though in fact there are no children involved because you’re socializing people to think in terms of those kinds of activities
with children being appropriate and the court didn’t want to go there. Last thing. Chocolate. Chocolate, Let’s say that you’re an artist and instead of using paint or crayons or markers, you instead decide that you wanna make
food art. And what you do is you take nice chocolate and you melt it over people’s
naked bodies. I’m not making this up. Here’s my question: Does this appeal to a prurient interest? Well yes,
yes it does. Does this display offensive sexual
conduct? Maybe. It doesn’t have to but I think you
could make the argument that it could. Does this lack literary, artistic,
political, or scientific value ? Believe it or not, the argument would be
this has artistic value and this is perfectly legal. So you can
use chocolate or you could use hot sauce or
you could use whipped cream or you could use beaf stew gravy. Whatever it is food stuff that you wanted and put it over
somebody’s naked body and make art with it and it would be
completely protected under the First Amendment. This would not
be considered obscenity. I give you this. The First Amendment.
Congress shall make no law. Well, no doesn’t always mean no. If it
did, we would be able to go out in the hallway
of the school and yell fire when there wasn’t a fire. If it did, we would be able to have child
pornography and that would be 100 percent perfectly legal. If it did, when you sit down and think
about this, we would be able to do any number of things in the sexual realms involving people,
children, animals, and we could go on and on and on. No doesn’t mean no. And it doesn’t mean no
in terms of religion. It doesn’t mean no in terms of speech,
press, petition or assembly. The government can actually place some
restrictions. This obscenity test is one of them,
but note on this, you only have to meet one of these three.
The one that you typically meet is the third one and it is protected and at that point
even if you fail the first two parts, it doesn’t matter it would steal be
protected content under the First Amendment.

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