First Amendment - The Miller Test

The Miller Test - Defining Obscenity

Does the First Amendment Protect Obscenity?

The Miller test is the standard used by courts to define obscenity. It comes from the 1973 Supreme Court's 5-4 ruling in Miller v. California, in which Chief Justice Warren Burger, writing for the majority, held that obscene material is not protected by the First Amendment. by Tom Head

Updated September 29, 2017

What Is the First Amendment?

The First Amendment is the one that guarantees Americans’ freedoms. We can worship in any faith we choose, whenever we choose.

The government cannot restrict these practices. We have the right to petition the government and to assemble. But the First Amendment is most commonly known as our right to freedom of speech and expression. Americans can speak their minds without fear of reprisal.

The First Amendment reads like this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The 1973 Miller v. California Decision

Chief Justice Burger stated the Supreme Court's definition of obscenity:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest ... (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.

To put it in layman's terms, the following questions must be answered:

Is it pornography?
Does it actually show sex?
Is it otherwise useless?

So What Does This Mean?

Courts have traditionally held that the sale and distribution of obscene material are not protected by the First Amendment. In other words, you can speak your mind freely, including the distribution of printed materials, unless you're promoting or talking about something obscene based on the above standards.

The guy standing next to you, an Average Joe, would be offended by what you've said or distributed, a sexual act is depicted or described, and your words and/or materials serve no other purpose but to promote this obscenity.

The Right to Privacy

The First Amendment applies only to disseminating pornography or obscene materials. It doesn't protect you if you share the materials or shout from the rooftop for all to hear. You can, however, quietly possess those materials for yourself because you also have a constitutional right to privacy. Although no amendment specifically states this, several amendments pay lip service to the issue of privacy. The Third and Fourth Amendments protect your home against unreasonable entry, the Fifth Amendment protects you against self-incrimination and the Ninth Amendment generally supports your right to privacy because it upholds the Bill of Rights. Even if a right is not specifically stated in the first eight amendments, it’s protected if it’s alluded to in the Bill of Rights.

Source: ThoughtCo.

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