Obscenity

The Miller Test:
In Miller v. California the Supreme Court established a three part test to determine whether or not speech is considered obscene, and therefore not protected by the First Amendment.

1. ‘the average person, applying contemporary community standards,’ would find that the work, taken as a whole, appeals to the prurient interest…”
2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”
3. “the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”
*This is the test that is used today. Source.

Roth v. United States
Summary: Roth owned a pornographic publishing business is New York. He sold books, photographs, and magazines. He was sued for mailing obscene materials as a form of advertising. The case was first seen in a district court which ruled that he could not distribute these materials because they were obscene. This decision was upheld by the higher courts until the U.S. Supreme Court agreed to hear the case.

Court’s Opinion: The Supreme Court upheld that the First Amendment does not protect obscene material. They also noted that because it is not protected, there is no need to prove clear and present danger as there is with other types of speech. Deemed that obscene speech was speech “utterly without redeeming social value.”
Notes on this case: “Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest — i.e., material having a tendency to excite lustful thoughts.”
Source

Case 2:

In this case, we believe that the court would apply the Miller Test to determine if the book should be considered obscene. Since the group is suing based on the entire book, not just a specific chapter, it would probably not be ruled obscene and the publishing company would continue to publish the work. The Miller Test looks at the work as a whole in both the first and third parts of the test. The first part considers if the work, as a whole, appeals to prurient interest. The single chapter of the book is sexually explicit but the rest of the book and the overall message is not. The third part of the test looks into whether or not the work has some sort of artistic value. James Smith is well known and his works are appreciated because of their artistic merit. Seeing as this book is consistent with his other writing then we can assume that it has artistic value. Our basis for this hypothetical case come from a real situation that occurred with James Joyce’s Ulysses in 1922 (before the Miller Test was created in 1973).

James Joyce: Ulysses

James Joyce’s Ulysses was published in an American magazine in several parts. The U.S. Post Office did not like the content of one of the chapters and decided to confiscate and burn copies of the magazine containing this portion of the novel. The book went on to be published in France but was prohibited in England. Eventually the book ban was challenged in the U.S. The courts ruled that the book did not “tend to be  an aphrodisiac.” The ban on the book was lifted. Source: FileRoom 

Case 5:

In this case, we believe that the court would apply the Miller Test to determine if the exhibit should be considered obscene. Since the first part of the Miller Test requires that the content be considered using “contemporary community standards,” we feel that the lower court’s application of the community standards test was fair. Because the gallery is public and receives funding from the government, the government can censor the content displayed if the content fails the Miller Test for obscenity. Obscene material does not receive First Amendment Protection in this situation. The basis for this scenario and our resulting opinion is Contemporary Arts Center v. Ney. 

Contemporary Arts Center v. Ney

Ohio city officials felt that The Contemporary Arts Center’s exhibit was obscene, and they sought to have the exhibit closed down. The CAC wanted a court order preventing the Ohio city officials from interfering with the art exhibit, and in response, the court issued a preliminary injunction preventing the city officials from interfering with the exhibit’s showing. City officials were not allowed to interfere by seizing the artwork because the exhibit had not yet been found to be obscene by the community standards test required in Part 1 of the Miller Test for obscenity. The seven pieces of artwork in question were later proven to possess serious artistic value by the CAC, (according to Part 3 of the Miller Test for obscenity) and therefore the obscenity charges were dropped.

Case 8:

In this case, we do not think U.S. Customs officials would be able to confiscate the artwork on the grounds of obscenity. The paintings were not evaluated or tested for obscene content using the Miller Test in the United States. We believe Goldsmith would be permitted to import his art and display it in the Manhattan art exhibit. Our basis for this hypothetical case and our resulting opinion comes from The United States of America v. Ten Erotic Paintings.

The United States of America v. Ten Erotic Paintings

In 1969, U.S. Customs agents in Baltimore seized ten paintings and drawings being shipped from Europe for an exhibition in the United States. The works were part of a much larger collection of erotic art previously shown in museums in Scandinavia. The U.S. Customs agents seized the works under the authority of a federal law prohibiting the importation of obscene materials. The paintings and drawings were explicit in their showing of male and female sex organs. The Court considered photographs of the paintings and drawings and affidavits of a psychiatrist, art critics, museum curators, and others, who certified to their artistic merit. Customs officials could not prevent the entry of these materials on the grounds of obscenity because they all had artistic merit, therefore not meeting the third legal criterion of obscenity required in the Miller Test for obscenity. Source.