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Transcript

Part 1

The Prurient Interest Test

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

KAHOOT!

Easiest test of all three to satisfy.

What happened:

Miller v. California 413 U.S. 15 (1973)

  • Miller appealed, but the Court remanded the case for further proceedings.
  • The Supreme Court described the brochure as consisting of “pictures and drawings very explicitly depicting men and women in groups of two or more engaged in a variety of sexual activities, with genitals often prominently displayed.”
  • Marvin Miller sent a mass mailing to California residents promoting four illustrated books containing sexually explicit material.
  • A restaurant owner and his mother complained to the police.
  • Miller was eventually charged with violating California’s obscenity statute (Cal Pen Code 311.2).

presented by Mary C. White

Part 3

The Serious Value Test

**After passing the first 2 tests, it must satisfy the third part of the Miller test to be obscene and to lie outside the protections of the First Amendment

Part 2

The Patent Offensiveness Test

Issue. Whether the obscenity presented in this case is prohibited by the applicable state statute.

What is and is not protected.

Dissent. Dissenting opinions were offered by both Justices William Douglas and William Brennan.

  • Douglas: It should not be the role of the court to define obscenity.
  • Brennan: The state statute in this case is unconstitutionally over broad.

Discussion. The Supreme Court found that, despite the guidelines that it established, it is nearly impossible to articulate a national obscenity standard.

They noted that each state should be free, through state statute, to construct obscenity laws that are representative of their communities.

“Whether the word, taken as a whole, lacks serious literary, artistic, political or scientific value.”

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

Third part forces judges to play the role of artistic or social critics and evaluate the aesthetic merit of works containing sexual content.

Sources:

  • Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, 1973 U.S. LEXIS 149, 1 Media L. Rep. 1441 (U.S. June 21, 1973)
  • “Miller v. California.” Miller v California | Casebriefs, Casebriefs, www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-stone/freedom-of-expression/miller-v-california-3/2/.
  • Watson, John C. “Regulating Pornography.” Communication and the Law, Vision Press, 2018, p. 7174.

The concepts of patently offensive and prurient interest vary according to community norms, which the law assumes are reflected in the attitudes of jurors.

http://kslegislature.org/li_2014/b2013_14/statute/021_000_0000_chapter/021_064_0000_article/021_064_0001_section/021_064_0001_k/

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