The Miller test (also called the Three Prong Obscenity Test[1]), is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.
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The Miller test was developed in the 1973 case Miller v. California.[2] It has three parts:
The work is considered obscene only if all three conditions are satisfied.
The first two prongs of the Miller test are held to the standards of the community, and the last prong is held to what is reasonable to a person of the United States as a whole. The national reasonable person standard of the third prong acts as a check on the community standard of the first two prongs, allowing protection for works that in a certain community might be considered obscene but on a national level might have redeeming value.
For legal scholars, several issues are important. One is that the test allows for community standards rather than a national standard. What offends the average person in Jackson, Mississippi, may differ from what offends the average person in New York City. The relevant community, however, is not defined.
Another important issue is that Miller asks for an interpretation of what the "average" person finds offensive, rather than what the more sensitive persons in the community are offended by, as obscenity was defined by the previous test, the Hicklin test, stemming from the English precedent.
In practice, pornography showing genitalia and sexual acts is not ipso facto obscene according to the Miller test. For instance, in 2000 a jury in Provo, Utah, took only a few minutes to clear Larry Peterman, owner of a Movie Buffs video store, in Utah County, Utah, a region which had often boasted of being one of the most conservative areas in the US. Researchers had shown that guests at the local Marriott Hotel were disproportionately large consumers of pay-per-view pornographic material, accessing far more material than the store was distributing.[4][5]
Because it allows for community standards and demands "serious" value, Justice Douglas worried in his dissent that this test would make it easier to suppress speech and expression. Miller replaced a previous test asking whether the speech or expression was "utterly without redeeming social value".[6] As used, however, the test generally makes it difficult to outlaw any form of expression. Many works decried as pornographic have been successfully argued to have some artistic or literary value, most publicly in the context of the National Endowment for the Arts in the 1990s.[7]
Critics of obscenity law argue that defining what is obscene is paradoxical, arbitrary, and subjective. They state that lack of definition of obscenity in the statutes, coupled with the existence of hypothetical entities and standards as ultimate arbiters within the Miller Test (hypothetical "reasonable persons" and "contemporary community standards") proves that federal obscenity laws are in fact not defined, do not satisfy the vagueness doctrine, and thus are unenforceable and legally dubious.[8]
The advent of the Internet has made the "community standards" part of the test more difficult to judge: as material published on a web server in one place can be read by a person residing anywhere else, there is a question as to which jurisdiction should apply. In United States of America v. Extreme Associates a pornography distributor from North Hollywood, California, was judged to be held accountable to the community standards applying in western Pennsylvania, where the Third Circuit made its ruling, because the materials were available via Internet in that area. The Ninth Circuit has ruled that a "national community standard" should be used for the internet, but this has yet to be upheld at the national level.