Which of the following is the Supreme Court case that established a test to determine if material is obscene and therefore not protected by the First Amendment?

The Supreme Court has ruled that, “transmitting obscenity and child pornography, whether via the Internet or other means, is... illegal under federal law for both adults and juveniles.”

Inhaltsverzeichnis Show

• Which of the following is the test the Supreme Court developed to determine whether material can be deemed obscene?
• What was the obscene material in Miller v. California?
• Which SC case state that obscene material is not protected under the First Amendment?
• Who won Miller v. California?

-Reno v. ACLU, 521 U.S. 844 (1998).

Obscenity

          Obscenity is not protected under First Amendment rights to free speech, and violations of federal obscenity laws are criminal offenses.  The U.S. courts use a three-pronged test, commonly referred to as the Miller test, to determine if given material is obscene.  Obscenity is defined as anything that fits the criteria of the Miller test, which may include, for example, visual depictions, spoken words, or written text.
          Federal law makes it illegal to distribute, transport, sell, ship, mail, produce with intent to distribute or sell, or engage in a business of selling or transferring obscene matter. Convicted offenders face fines and imprisonment.  Although the law generally does not criminalize the private possession of obscene matter, the act of receiving such matter could violate federal laws prohibiting the use of the mails, common carriers, or interactive computer services for the purpose of transportation. (For more information, see Citizen's Guide to Federal Law on Obscenity).

Obscenity Law and Minors

          Federal law strictly prohibits the distribution of obscene matter to minors. Any transfer or attempt to transfer such material to a minor under the age of 16, including over the Internet, is punishable under federal law.  It is also illegal to use misleading website domain names with intent to deceive a minor into viewing harmful or obscene material.  For example, using a cartoon character or children´s television program in the domain of a website that contains harmful or obscene material may be punishable under federal law.
          In addition, visual representations, such as drawings, cartoons, or paintings that appear to depict minors engaged in sexual activity and are obscene are also illegal under federal law.
          It is important to note that the standard for what is harmful to minors may be different than the standard for adults, and offenders convicted of obscenity crimes involving minors face harsher penalties than if the crimes involved only adults (For more information, see Citizen's Guide to Federal Law on Obscenity).

CEOS’s Role

          The Child Exploitation and Obscenity Section (CEOS) remains dedicated to the enforcement of federal obscenity laws.  CEOS attorneys work with the High Technology Investigative Unit (HTIU), the Federal Bureau of Investigation (FBI), and United States Attorney´s Offices throughout the country to investigate and prosecute violations of federal obscenity law.
          The use of the Internet to distribute obscenity has blurred traditional notions of jurisdiction. CEOS maintains a coordinated, national-level law enforcement focus to help coordinate nationwide investigations and initiatives.  Given the importance of community standards under the Miller test, however, CEOS recognizes that the full commitment and support of local United States Attorney´s Offices, who best know local community standards, are absolutely essential to the federal obscenity enforcement efforts.

In the United States, freedom of expression, artistic and otherwise, is ultimately governed by the First Amendment to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

This guarantee of freedom of speech has been articulated in numerous Supreme Court cases, which play an important role in the history of freedom of artistic expression. Here are a few of the more important decisions:

Symbolic Speech Protected
In 1931, in Stromberg vs. California, the Court determined that "symbolic speech" is protected under the Constitution. The case was spurred by the conviction of a woman who had displayed a red flag in a public place, an action associated with anarchist groups and then criminal under California law.

The Court found parts of the California statute unconstitutional and by implication ruled that the display of symbols could be protected speech. As applied to the arts, this means that not just words, but paintings, music, theatrical performances, and other types of artistic expression are protected by the First Amendment's guarantee of freedom of speech.

The "Three-Pronged Test" for Obscenity Established
In 1973, in the most important case on freedom of expression, Miller vs. California, the Court established the "three-pronged test" for obscenity, which still applies today. The case concerned bookseller Marvin Miller's conviction under California obscenity laws for distributing illustrated books of a sexual nature.

In Miller, the Court's decision stated that obscene material is not protected by the First Amendment (a reaffirmation of Roth) and that such speech may be regulated by the state under certain circumstances. In order to meet the definition of obscene material articulated in this case, three conditions must be met:

(a) whether the average person, applying contemporary community standards, would find that 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

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

The Court also determined that a jury may measure "the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a 'national standard.'" This establishes a role for the community in making decisions about obscene material.

Obscenity is a narrow category describing materials that meet all three prongs of the definition above. Such material, even if some describe it as art, may be deemed obscene and banned by the state.

"Indecency" is a broader term encompassing material which does enjoy some measure of Constitutional protection, but may still be restricted. For instance, some might find violent images objectionable, even though they do not appeal to prurient interest and thus are not obscene under Miller.

No "three-pronged test" for indecency exists, and although the Court has considered cases involving the arts and proposed standards of decency, the issues of what such standards mean and how they are to be applied have not been resolved.

School Book Selection Covered by First Amendment
In 1982, after years of appeals, the Supreme Court ruled, in Board of Education vs. Pico, that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion." The case was brought by students opposing a directive made by the Island Trees School District in Levittown, N.Y. ordering the removal of books considered "anti-American, anti-Christian, anti-Semitic, and just plain filthy" from school libraries.

Speech on the Internet Protected
In 1997, in Reno vs. ACLU, the court found the The Communications Decency Act, passed by the U.S. Congress in 1996 and designed to protect minors from harmful material on the Internet, unconstitutional, ruling that the act abridges the First Amendment.

Audio files of the arguments for some of these cases may be available at the Oyez Project at Northwestern University.

Which of the following is the test the Supreme Court developed to determine whether material can be deemed obscene?

What was the obscene material in Miller v. California?

Which SC case state that obscene material is not protected under the First Amendment?

Who won Miller v. California?