Defining Obscenity & Federal Obscenity Statutes

In the 1973 case Miller v. California, the U.S. Supreme Court reaffirmed an earlier ruling that obscenity was not protected speech under the First Amendment and could therefore be prohibited.

Articles within this series

Overview
Pornography: Harmless Fun or Public Health Hazard?
Defining Obscenity & Federal Obscenity Statutes
Child Pornography & Federal Child Exploitation Statutes
Next Steps / Related Information

by Daniel L. Weiss

Legal Definition of Obscenity

In the 1973 case Miller v. California, the U.S. Supreme Court reaffirmed an earlier ruling that obscenity was not protected speech under the First Amendment and could therefore be prohibited. Further, the Court laid down a standard by which all future obscenity cases would be judged. Representing the majority opinion, Chief Justice Warren Burger wrote the following.

The basic guidelines for the trier of fact must be:
(a) whether “the average person, applying contemporary community standards” would find the work, taken as a whole, appeals to the prurient interest…,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The ruling further instructed that the standard to be used was that of the community in which the case was being tried and that no national standard was needed.