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Miller v. California (1973) – current obscenity definition. State must establish that: The average person applying contemporary community standards would find the work taken as a whole appeals to the prurient interest;

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miller v california 1973 current obscenity definition
Miller v. California (1973) – current obscenity definition
  • State must establish that:
    • The average person applying contemporary community standards would find the work taken as a whole appeals to the prurient interest;
    • The work depicts or describes in a patently offensive way sexual conduct specifically defined by state law; and
    • The work taken as a whole lacks serious literary, artistic, scientific or political value.
application of the miller standard prongs 1 2
Application of the Miller standard – Prongs 1&2
  • Prongs 1 & 2(prurient interest and patently offensive) can be judged by juries using local community standards.
    • What problems arise with the use of local community standards?
    • How does this work now with the Internet?
      • Ashcroft v. ACLU – did not do away with the local community standard for Internet prosecutions but justices expressed uneasiness
      • Is it reasonable to punish a person who lives in California (& posts material there) in Tennessee because someone accessed their website?
application of the miller standard prong 3
Application of the Miller standard – Prong 3
  • Prong 3– jury cannot use local standards to judge whether a work lacks “serious . . . value.”
  • Jury must ask whether a “reasonable person” would find that the material has serious value.” (Pope v. Illinois, 481 U.S. 497 (1987)
    • Usually established by expert testimony from people in the field – i.e., artists, scientists, writers, etc.
what interest does the government have in banning obscenity
What interest does the government have in banning obscenity?
  • Is it because obscenity is low value?
    • Chaplinsky – low value speech = such slight social value that any benefit is outweighed by interest in order/morality
    • Does obscenity have no social value? Is it truly valueless speech?
  • What interest does gov’t have in banning the distribution/public display of obscenity (as opposed to pornography and other sexually explicit speech)?
    • Why doesn’t it have a similar or even greater interest in banning graphic depictions of violence?
violent video games minors analogy to obscenity for minors
Violent video games & minors – analogy to obscenity for minors?
  • Cal. Civ. Code § 1746.1(a): A person may not sell or rent a video game that has been labeled as a violent video game to a minor.
    • Exceptions – (1) reasonable reliance on proof of adulthood or mfrs’ failure to label & (2) minor received from parent, legal guardian or related adult
  • Many, Many definitions. Most important is in § 1746(d)(1):
    • "Violent video game" means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that . . . [either] (A) Comes within all of the following descriptions: (i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors. (ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. (iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors; [or] (B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
    • Terms – Cruel, Depraved, Heinous, Serious Physical Abuse, & Torture also defined