The Neglected Prong of the Miller Test for Obscenity: Serious Literary, Artistic, Political, or Scientific Value
![handle is hein.journals/siulj11 and id is 1177 raw text is: The Neglected Prong of the Miller
Test for Obscenity: Serious Literary,
Artistic, Political, or Scientific Value
Edward John Main*
I. INTRODUCTION
In 1973 the United States Supreme Court announced the current
test for obscenity in Miller v. California.' That test consists of three sepa-
rate evaluations of a given work:
(a) whether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the
prurient interest, [citations omitted]; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically de-
fined by the applicable state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value.2
Of fundamental importance to this decision was the Court's rejection of
the earlier test put forth in the plurality opinion of Memoirs v. Massachu-
setts.3 Specifically, the Court rejected the requirement that a work be
utterly without redeeming social value for a serious literary, artistic,
political, or scientific value standard.4
The new test changed the standard for obscenity in two ways. First,
the level of value must be higher under the Miller (serious) than under
the Memoirs (not utterly without) test. The Memoirs standard had
been taken from the Supreme Court's first venture into the area of ob-
scenity jurisprudence in Roth v. United States.' In Roth, the Court tried
to define the obscenity problem away. Obscenity was to be excluded
from the speech protected by the first amendment. The Court considered
this definitional approach to be dispositive of the issue.6 If a kind of
speech is protected by the first amendment, it cannot be banned; if it is
not protected, it may be banned at will. To make this distinction, the
* M.A., Ph.D. (Philosophy), Southern Illinois University at Carbondale; J.D., The University
of Tulsa College of Law.
1. 413 U.S. 15 (1973).
2. Id. at 24.
3. 383 U.S. 413 (1966).
4. Miller, 413 U.S. at 24 (emphasis added).
5. 354 U.S. 476 (1957).
6. Id. at 481.
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The Neglected Prong of the Miller Test for Obscenity: Serious Literary, Artistic, Political, or Scientific Value
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