Which of the following is not a condition of “obscenity” as defined by the u.s. supreme court?

Obscenity is a category of speech unprotected by the First Amendment. Obscenity laws are concerned with prohibiting lewd, filthy, or disgusting words or pictures. Indecent materials or depictions, normally speech or artistic expressions, may be restricted in terms of time, place, and manner, but are still protected by the First Amendment. There are major disagreements regarding obscene material and the government's role in regulation. All fifty states have individual laws controlling obscene material.

A comprehensive, legal definition of obscenity has been difficult to establish. Yet, key components of the current obscenity test stem from the U.S. Court of Appeals decision in United States v. One Book Entitled Ulysses, which determined that a work investigated for obscenity must be considered in its entirety and not merely judged on its parts.

Currently, obscenity is evaluated by federal and state courts alike using a tripartite standard established by Miller v. California. The Miller test for obscenity includes the following criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.

Prior to Miller, judges testing for obscenity invoked the wisdom handed down by the Court in Roth v. United States. A landmark case, Roth ruled that obscene material was not protected by the First Amendment and could be regulated by the States rather than by a singular, Federal standard. Also, Roth established a new judicial standard for defining obscenity that invoked the average person’s application of contemporary community standards to judge whether or not the dominant theme of the material taken as a whole appeals to prurient interest. A test for obscenity derived from Roth that included the following five-part structure: (1) the perspective of evaluation was that of an ordinary, reasonable person, (2) community standards of acceptability were to be used to measure obscenity, (3) works whose predominant theme was questionable were the only target of obscenity law, (4) a work, in order to be evaluated for obscenity, had to be taken in its entirety, and (5) an obscene work was one that aimed to excited individuals’ prurient interest. Miller revised Roth’s emphasis on creating a uniform Federal standard. Instead, it touted reliance on community standards of a more local nature, which threw the arduous task of defining obscenity back upon the States.

The Supreme Court has repeatedly grappled with problematic elements of the Miller test for obscenity. However, to date, no standard has replaced it.

In 1997, Reno v. American Civil Liberties Union (“ACLU I”) addressed obscenity in the field of new media. The ACLU challenged the Communications Decency Act (CDA), a portion of the 1996 Telecommunications Act aimed at protecting children by restricting transmissions sent over the Internet. After the Supreme Court ruled the CDA was overly broad in its approach to regulating obscenity online, Congress passed the Children's Online Privacy Protection Act (COPPA) in 1998.

The ACLU again filed suit, which became Ashcroft v. Civil Liberties Union (“ACLU II”). Aschcroft, upheld the Constitutionality of COPPA and deemed its use of “‘community standards’ to identify ‘material that is harmful to minors’” an acceptable practice under the First Amendment. However, the Court also demanded that COPPA be enjoined and the case be remanded to the Third Circuit, where the Court found COPPA created a content-ban on adult transmissions that was overly broad, intrusive, and restrictive in its efforts to protect children from adult speech. The details of the case were finally resolved in January 2009, when the Supreme Court denied certiorari to ACLU v. Mukasey, a case that could have broadened obscenity law beyond the parameters of the Miller test.

Last Updated June of 2017 by Tala Esmaili.

Which of the following is not a condition of obscenity” as defined by the u.s. supreme court?

The Supreme Court in Miller v. California established a new standard for determining what could be considered obscene materials and subject to government restrictions. The three-part test asked whether the average person, applying contemporary community standards, would find the work appeals on the whole to prurient interests; describes sexual conduct in a patently offensive way; and lacks any serious literary, artistic, political or scientific value.

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court upheld the prosecution of a California publisher for the distribution of obscene materials. In doing so, it established the test used to determine whether expressive materials cross the line into unprotected obscenity. The Miller test remains the guide in this area of First Amendment jurisprudence.

Miller convicted for distributing obscenity

In California, Covina-based publisher Marvin Miller was called in some circles the “King of Smut.” In this case, he was prosecuted in 1968 for mailing advertisements for four books — Intercourse, Man–Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography — and a film entitled Marital Intercourse. A jury then convicted Miller under a California law prohibiting the distribution of obscenity, and his conviction was affirmed by a California appeals court. Miller appealed to the U.S. Supreme Court, contending that the advertisements in question were not obscene. The Court affirmed his conviction 5-4.

Burger established three-part obscenity test

Writing for the majority, Chief Justice Warren E. Burger established a three-part test for juries in obscenity cases: “Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The three parts of the test soon became known, in short, as the prurient interest, patently offensive, and SLAPS prongs.

The Miller standard differed from the Court’s previous obscenity standard as articulated in Memoirs v. Massachusetts (1966). A plurality in Memoirs had established that any material designated as obscene had to be “utterly without any redeeming social value,” but in Miller the Court relaxed the standard for prosecutors by requiring the material to have some “serious value.” The new standard granted “greater discretion to law enforcement agencies, judges and jurors to decide whether, under local community standards, material should be condemned as obscene” (Mathews 1973: A1).

First Amendment does not require national community standard

Burger rejected the notion that the First Amendment requires a national community standard, writing: “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” He did note that only materials that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law” constituted obscenity.

Justice William O. Douglas dissented, writing that obscenity cases “have no business in the courts.” Justice William J. Brennan Jr., joined by Justices Potter Stewart and Thurgood Marshall, also wrote a dissent, referring readers to his dissent in the companion case of Paris Adult Theatre I v. Slaton (1973), in which he argued that obscenity laws could not be drafted consistently with the First Amendment.

The Miller test remains the dominant test for both state and federal obscenity prosecutions. Criticism continues to the notion of applying “contemporary community standards.” For example, the 9th Circuit in United States v. Kilbride (2009) wrote that “a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.” 

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.​

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In Miller, the Court reasoned that individuals could not be convicted of obscenity charges unless the materials depict “patently offensive hard core sexual conduct.” Under that reasoning, many sexually explicit materials — pornographic magazines, books, and movies — are not legally obscene.

What are the three criteria for obscenity?

The Miller test for obscenity includes the following criteria: (1) whether 'the average person, applying contemporary community standards' would find that the work, 'taken as a whole,' appeals to 'prurient interest' (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically ...

What did the Supreme Court say about obscenity?

The Supreme Court decision in United States v. Reidel, 402 U.S. 351 (1971), affirmed that laws forbidding the distribution of obscene materials were constitutional despite the Court's ruling in Stanley v. Georgia (1969), which held that persons had a right to possess obscene materials in the privacy of their own homes.

What is the definition of obscenity quizlet?

obscenity. Quality or state of a work that taken as a whole appeals to a prurient interest in sex by depicting sexual conduct in a patently offensive way and that lacks serious literary, artistic, political, or scientific value. -certain well defined and narrowly limited class of speech.