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What is the name of the test used by the US Supreme Court to determine whether speech or expression can be labeled obscene?
The Miller Test, or "Three Prong Obscenity Test," was established via the US Supreme Court's decision in Miller v. California, 413 US 14 (1973).
The criteria a trier-of-fact must consider when determining whether material is obscene follows:
"(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, [Roth, supra, at 489,]
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary."
In Jacobelis v. Ohio, 378 US 184 (1964) Court determined "obscenity" did not qualify for First Amendment protection, but were unable to agree on a definition or standard. Justice Potter Stewart's famous quote best summarized the dilemma of the Court:
"I shall not today attempt further to define the kinds of material I understand to be embraced...but I know it when I see it..."
The Supreme Court attempted to address the issue a second time in Roth v. United States, 354 US 476 (1957), but the opinion in that case gave little more guidance:
"The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest."
The Miller Test incorporated the definition in Roth, which the Court held to be unconstitutional on its own, but expanded the criteria in an effort to introduce more considerations, as a proxy for objectivity. The "three prongs" listed above comprise the current obscenity test (2010).
For more information, see Related Questions, below.
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Read this excerpt from the dissent on Tinker v. Des Moines:While the absence of obscene remarks...In terms of Supreme Court language and protocol, what is this excerpt an example ofA. A judicial reviewB. A majority opinionC. A precedentD. A summary?
This excerpt is an example of a dissenting opinion. In the context of Supreme Court decisions, a dissenting opinion is written by a justice (or justices) who disagree with the majority opinion. Dissenting opinions provide an alternative viewpoint and reasoning for why the decision should have been different.
Does freedom of speech cover clothing choices?
It does fall under the First Amendment (Freedom of Expression) and can, but this is rocky terrain. In a venue such as a school, where one's mode of dress can reasonably be considered disruptive, the manner of dress is not protected. In a public venue where one's clothing might represent a clear protest to the wars in Iraq or Afghanistan, or in general the "War on Terror," the Department of Homeland Security has determined that this could be an act of terrorism. Additionally, if the clothing in anyway can be considered a "breach of peace" or in any way can represent "fighting words," it is by no means protected.From the Supreme Court decision in Chaplinsky v. New Hampshire, 1942:There are certain well-defined and narrowly limited classes of speech [expression], the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" those that by their very utterance [expression] inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances [expressions] are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
What did the US Supreme Court decide in Miller v. California?
Miller v. California, 413 US 15 (1973)That the distribution of obscene material through the mail is not protected by the First Amendment.The Court also held that both state and federal obscenity standards in use at the time of the case were vague and overbroad. While the Court upheld Miller's conviction, it also invalidated the "community standards" tests and the Court's own test, established in Roth v. US, 354 US 476 (1957) and replaced them with a three-prong test (called the Miller Test) designed to result in more consistency and less subjectivity in judging allegedly obscene materials.For more information, see Related Questions, below.
How has the US Supreme Court's interpretation of obscenity changed over time?
That has greatly varied. The most serious attempt to define it was when it was ruled that in order for something to be regarded as "obscene" it would have to utterly lack any " scientific, literary, artistic, political or social value", often called the SLAPS test. (The current standard is called the Miller Test; see Related Questions)It has also depended on "community values", a rather nebulous term that in all practicality means "whatever the loudest citizen's group in your town can bully the DA into prosecuting".It has even been circularly defined. As in: What is" Obscenity"? See prurient. What is "Prurient"? See obscenity.Justice Potter Stewart, in 1964, quite honestly admitted that he could not define obscenity, but famously said, "I know it when I see it".
Is obscenity entitled to constitutional protections?
No, obscenity is not protected by the First Amendment; however, the concept is ill-defined and subjective. Some forms of expression that certain people consider obscene or offensive may be protected, and community standards of decency tend to change over time.As Justice Potter Stewart opined in his concurring opinion in Jacobellis v. Ohio, 378 US 184 (1964):"I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."For more information, see Related Questions, below.
