Talk:Miller test

Article

From the article:

The advent of the Internet has made this definition more difficult to maintain, as material published on a New York webserver can be read on a computer by a person residing in Utah: it is then a vexed question as to which jurisdiction should apply.

Has this been resolved in U.S. law? -Unsigned

Not yet. The pending cases may resolve it because they involve some internet-only distribution. Jamesday 19:37, 22 Jan 2004 (UTC)

The U.S. v. Thomas [external link] case provides some background about the relevant community under which obscenity can be prosecuted. The Thomases, who operated a California bulletin board, were prosecuted and convicted of obscenity in Tennessee, where a federal postal inspector had signed up for the service and ordered sexually explicit videos. The Thomases appealed, arguing for the notion of a "virtual community" whose standards would determine what is or is not obscene. The appellate court rejected this reasoning, and stated that the Thomases could have avoided obscenity prosecution by not accepting applicants from Tennessee or mailing their products to that state. Hope that helps somewhat. --bceaglejoe 20:53, 19 May 2004 (UTC)

As of 2022, such a prosecution becomes a moot point by way of interstate commerce doctrine articulated in United States v. Morrison, which holds that while the constitutional police power belongs to the states, the states are not free to regulate interstate commerce. Rather, a plethra of court decisions hold that computers and the internet are elements of interstate commerce- hence it is illogical, once Morrison is correctly applied, to suggest that the states may prosecute obscenity crossing state lines. 98.178.191.34 (talk) 22:53, 13 February 2022 (UTC)

From the article

There may sometimes be adult content at the following reference:

That's all very nice and all, but it's not clear what it has to do with the rest of the article. --221.249.13.34 07:53, 22 Nov 2004 (UTC)

Agreed, so I removed the sentence and link. I tried to save it to this page, but the spamblocker kept me from doing so, confirming that it probably doesn't belong in the article.

I also removed this link from the prior sentence, as Newsday articles drop off the free access part of the site after 30 days. Ellsworth 20:25, 18 Dec 2004 (UTC)

Here's the link address - I can't link directly to it: www.theadultwebmaster.com/legalcorner/2003_09_legal_update.phtml Ellsworth

Rape

This case includes a video called Forced Entry, which includes depictions of rape, murder, suffocation, beatings and urination in sexual contexts. Each of the components when considered alone, is not uncommon in sexual fantasy (murder probably being the least common) and, except for murder, feature routinely in sexual activities of varying proportions of the US population.

I'll admit that rape is more common than murder, and that it does "feature routinely in sexual activities of varying proportions of the US population" but somehow this part just seems wrong. --Anon

Previous tests

I think this article is missing some historical perspective; before Miller v. California there were a series of cases in the 1960s where the Court established a fairly unenforceable standard of obscenity (the origin of Potter Stewart's infamous "I know it when I see it" test); Miller tried to resolve the problem by moving these cases back to state courts, with limited success. -- LordSutch

Child porn

The following discussion is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

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"Even pornography, with the exception of child pornography, is argued to have some artistic or literary value." What if the piece of child porn was exceptionally artistic, and a lot of respected artists were brought in to verify how artistic it was?

Like.. Lolita? -Unsigned

Or American Beauty. —The preceding unsigned comment was added by 68.49.243.207 (talk) 19:37, 29 April 2007 (UTC).

Lolita and American Beauty are not examples of child pornography. Firstly, they were not made with the indent to arouse, but to tell a story. Second, in the case of American Beauty, nudity of a minor in not automatically illegal and therefore not automatically illegal. Nudist photos are not illegal, for example, because they are not made with the intent to be pornography, but to just be family photos. In American Beauty, likewise, the nudity was not supposed just to arouse, but to be part of the story. Further, the actresses and their parents must have consented. The point of anti-child porn laws is to protect children from exploitation, and it would be very hard to argue that any of the minor actors in that film were exploited. --206.57.35.85 16:00, 10 August 2007 (UTC)

You do not know what the intent of writers or producers are when they present images in a certain way. While the images in American Beauty were most certainly telling a story and had obvious purposes besides arousal, we can't be sure that they did not also present it to do just that. Furthermore, even adult pornography has arguable artistic value, even if something is aimed with the stated purpose of arousal as the prime purpose (even if it isn't the prime purpose they may do that to attract viewers in a inche market) it doesn't mean secondary purposes are to be ignored. Arousal is an existing condition that people explore in art, exploring it very frequently is artistic, and American Beauty did both mean to arouse and to explore what that meant and the contemplation and ramifications of that state, is what I think. Tyciol (talk) 04:14, 28 October 2008 (UTC)

That would seem to then create the problem in that while the government may regulate the manner of expression of an idea (e.g. pornographic depictions), it may not regulate the underlying idea to the extent the government must allow so alternate forms of expression of the underlying idea, as not to pervasively censor the content of speech. Thus, it becomes how then do we objectively define "serious artistic, literary, or scientific value" apart from what is, in reality, an arbitrary and capricious opinion of the majority, where others may well have conflicting viewpoints as to what kinds of artistic value are 'serious'? We cannot say simply "majority opinion rules" here because the first amendment is primarily designed to protect against the tyranny of the majority. - e.g. the majority typically does not need the sort of protection the first amendment affords in the first place. Therefore, it seems that the whole line of reasoning is illogical given the clear historical purpose of the first amendment in general, noting that the framers likely would have considered all pornography to be obscene- given that such was the majority line of thought in the late 1700s / early 1800s at the time the framers wrote the constitutional text. 98.178.191.34 (talk) 23:05, 13 February 2022 (UTC)

The discussion above is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

Background

I agree that some historical perspective is required. The fact that Miller changed the test that SCOTUS had been using under Roth, which defined obscenity as only those works with utterly no social redeeming value, seems important. ~anon. —The preceding unsigned comment was added by 129.62.88.66 (talk) 14:01, 23 March 2007 (UTC).

Vandalism from LiveJournal

This is receiving a lot of vandalism lately because it is linked from a news post that is attracting lots of attention[1]. If things get out of hand, I think this should be temporarily semi-protected. Zachary 20:11, 20 July 2007 (UTC)

Small amount of bias

The aside at the end of the main section which reads- (Needless to say, guests in a hotel generally are not representative of full-time residents in the city where the hotel is located: Las Vegas, commonly called "Sin City," has many Evangelical churches, whose members may disapprove of the people whose gambling and other "sinful" behavior make their city prosperous.) -and was already in parentheses on the site seems to be biased and based out of a personal vendetta against an assumed hypocrisy of the church. Would anyone miss this needless commentary? Icarus of old 05:07, 12 September 2007 (UTC)

Peter Klashorst

Are you guys sure that none of Klashorst's works (which are on Wikimedia Commons) fail the Miller test? Some of the images seem to show suspiciously young nudes in suspiciously provocative positions. 204.52.215.107 (talk) 07:14, 13 December 2007 (UTC)

On the other hand, those appear to be adults after all, and people who have viewed those photos have not objected to them. 204.52.215.107 (talk) 11:06, 13 December 2007 (UTC)

Italicization

Should the title be partially italicized, like "Miller test"? Is the test named after the man, Marvin Miller, or the case Miller v. California? Mammoth Kod (talk) 21:02, 15 March 2015 (UTC)

SLAPS

i think, especially since search on SLAPS redirects here, that some explanation of the acronym should be given. i can't figure it out with any degree of certaintyToyokuni3 (talk) 08:10, 29 November 2017 (UTC)

Feb. 2022, why? tag

The following discussion is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

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The main article states "In practice, pornography showing genitalia and sexual acts is not ipso facto obscene according to the Miller test." However, The problem with this is that the Department of justice, in it's Citizen's Guide to U.S. federal law on Obcenity defines "prurient interest" as "i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion", defines "depitcts or describes sexual conduct in a patently offensive way as "i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse)". It would therefore seem that, according to the DOJ, that all pornography will then inherently meet the first two prongs, leaving the only remaining inquiry being as to "serious literary, artistic, political, or scientific value." I can't see much of a rational argument to say that any pornography has any serious "political, scientific, or literary" value, and if the notion that pornography is some form of "art", then it poses the problem of how some pornography could be considered "art" while some other pornography would not be considered such. Rather, it appears that the line of reasoning then becomes so impermissibly arbitary and capricious as to make something hinge on emotion as opposed to any reasonably objective standard. Therefore, further explanation is both warranted and needed here as to demonstrate that the standard isn't overly arbitrary and capricious to a degree of becoming an abuse of discretion, as more recently articulated by J. Sotomayor during oral arguments in the October 2021 term. 98.178.191.34 (talk) 22:49, 13 February 2022 (UTC)

The discussion above is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

Factual errors regarding the "Movie Buffs case"

Right now, the article reads:

In practice, pornography showing genitalia and sexual acts is not ipso facto obscene according to the Miller test.[why?] For instance, in 2000, a jury in Provo, Utah, took only a few minutes to clear Larry Peterman, owner of a Movie Buffs video store, in Utah County, Utah. He had been charged with distributing obscene material for renting pornographic videos which were displayed in a screened-off area of the store clearly marked as adult-only. The Utah County region had often boasted of being one of the most socially conservative areas in the United States. However, researchers had shown that guests at the local Marriott Hotel were disproportionately large consumers of pay-per-view pornographic material, accessing far more material than the store was distributing.

This characterization of the "Movie Buffs" case seems misleading for a few reasons.

First, the jury in this case took "two hours" to deliberate according to this news article. Calling this "only a few minutes" is technically correct (I suppose if they had deliberated for several weeks, that would have been "only a few minutes" in a manner of speaking), but misleading.

Second, this was not a supreme court case, or even an appellate court case. So, the case may not be easily generalizable, especially given the particulars of the case. For instance, according to the news article I referenced,

Jury members said they did not discuss whether or not the movies were pornographic so much as they discussed whether or not Peterman knew his distribution was illegal.

So, it seems like the obscenity or non-obscenity of the pornography in question was not the primary basis of the jury's decision. The way this article is written right now really doesn't reflect this at all.

On the other hand, I don't know enough about obscenity law to give a good explanation why "pornography showing genitalia and sexual acts is not ipso facto obscene according to the Miller test." Are there any legal experts around who can weigh in on that and perhaps rewrite this paragraph altogether?

Autodidact137 (talk) 03:14, 24 August 2022 (UTC)