Miller test

The Miller Test has been used by the United States Supreme Court since 1973 to assess whether a form of speech or other expression should be considered obscene . In the event that the classification as "obscene" applies, the respective item is not protected by the first amendment to the US Constitution and can possibly be prohibited.

History and function

The Miller test was carried out during the Miller v. California developed and consists of three parts. Each of the three parts is assessed according to individual criteria.

1st chapter

Would an average person who applies contemporary standards appropriate to society consider the entire work to be suitable for serving lustful interests?

Part 2

Does the work describe or depict sexual behavior or excretory processes that are defined by appropriate state laws?

3rd part

Does the oeuvre lack any serious literary, artistic, political, and scientific value? This test is also known as the (S) LAPS test - (Serious) Literary, Artistic, Political, Scientific-Test .

If all three questions are answered with yes, the object of investigation is to be described as obscene.

The first and second tests are based on social guidelines, while the third test is based on the criteria of a reasonable person . The third test has the function of a counterweight to the first two tests, which excludes restrictions of fundamental rights through strict moral concepts of regional societies.

The first two tests take social guidelines into account to a greater extent than national standards. The results of the first two tests can therefore lead to different results in different regional societies, since the society to be used for the investigation is not defined.

Miller takes into account the feelings of the average person in the first two tests, but not the feelings of a person with particularly strict moral criteria, which distinguishes Miller's test from its predecessor, the Hicklin test .

In US jurisdiction, pornography showing genitals and sexual acts is not automatically rated as obscene on the Miller test. In 2000, a Provo jury acquitted Larry Peterman, the owner of a pornographic video store in Utah County , Utah , one of the most conservative parts of the United States, within minutes. Research had shown that guests at the local Marriott hotel consumed far more pornographic material via pay-per-view than Peterman's store sold.

Public perception and discourse

Accused of supporting censorship

Critics alleged that the Miller test would facilitate speech and expression suppression because it required "serious" value. Miller presented a stricter version of his test, in which the subject of investigation is assessed according to whether it is entirely without social worth . In the form used, a ban is hardly possible using the Miller test, among other things because in a large number of cases pornography has been accorded an artistic or literary value.

Accusation of poor definition

Critics of the obscenity law argue that the definition of profanity is paradoxical, arbitrary and subjective.

In the absence of a clear definition of obscenity in the law in connection with the establishment of hypothetical legal structures and standards within the test (i.e. the hypothetical "reasonable persons" and "contemporary social standards"), the term profanity is not defined in US federal law. As a result, case law that refers to the concept of profanity is unenforceable and questionable from a legal point of view. The laws prohibiting profanity contradict the Vagueness Doctrine and are therefore invalid.

Change in the concept of society through the Internet

The development of the Internet made it more difficult to use the concept of society in the third test, since material on the Internet can no longer only be perceived in a spatially limited environment, which is why it is no longer clear which assessment guidelines are to be applied. The United States of America v Extreme Associates lawsuit, which is currently ongoing , may help clarify this point.

See also

• The Dost test formulates criteria for assessing the lasciviousness of depictions of the genital area

Individual evidence

1. ↑ judgment text , text by findlaw.com
2. ↑ Timothy Egan, Wall Street Meets Pornography, The New York Times (October 23, 2003)
3. ↑ Timothy Egan, Gary Ruskin Wall Street Meets Pornography, The New York Times ( Memento of the original from January 7, 2010 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. (from October 24, 2001) 
4. ^ There is no Such Thing as Obscenity, The Ethical Spectacle, February 2006
5. ↑ William A. Huston, Under color of Law, Obscenity versus the first Amendment, pages 75-82 ( Memento of September 28, 2006 in the Internet Archive ) (PDF; 126 kB)