A Brief History
On June 21, 1973, the US Supreme Court handed down a decision in Miller v. California, establishing a way to determine if something is “free speech” guaranteed by the 1st Amendment or if it is obscene.
Digging Deeper
Referred to as the “Miller Test,” SCOTUS determined that three factors must be present for some sort of expression to be considered obscene and not covered under “free speech.” These three factors are:
“Whether ‘the average person, applying contemporary community standards’, would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
The speech, or expression, is considered obscene if and only if all three factors are met.
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Historical Evidence
For more information, please see…
Fiss, Owen. Liberalism Divided: Freedom Of Speech And The Many Uses Of State Power. Routledge, 2018.
Gary, Brett. Dirty Works: Obscenity on Trial in America’s First Sexual Revolution. Stanford University Press, 2021.
The featured image in this article, a photograph of the Burger Court in 1973, is in the public domain in the United States because it is a work prepared by an officer or employee of the United States Government as part of that person’s official duties under the terms of Title 17, Chapter 1, Section 105 of the US Code.
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