Question

According to the U.S. Supreme Court, what is not to be considered "community" under the current test for determining if speech is obscene?

Answer 1

Obscenity is a category of speech unprotected by the First Amendment. Obscenity laws are concerned with prohibiting lewd, filthy, or disgusting words or pictures. Indecent materials or depictions, normally speech or artistic expressions, may be restricted in terms of time, place, and manner, but are still protected by the First Amendment. There are major disagreements regarding obscene material and the government's role in regulation. All fifty states have individual laws controlling obscene material.

A comprehensive, legal definition of obscenity has been difficult to establish. Yet, key components of the current obscenity test stem from the U.S. Court of Appeals decision in United States v. One Book Entitled Ulysses, which determined that a work investigated for obscenity must be considered in its entirety and not merely judged on its parts.

Currently, obscenity is evaluated by federal and state courts alike using a tripartite standard established by Miller v. California. The Miller test for obscenity includes the following criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.

Prior to Miller, judges testing for obscenity invoked the wisdom handed down by the Court in Roth v. United States. A landmark case, Roth ruled that obscene material was not protected by the First Amendment and could be regulated by the States rather than by a singular, Federal standard. Also, Roth established a new judicial standard for defining obscenity that invoked the average person’s application of contemporary community standards to judge whether or not the dominant theme of the material taken as a whole appeals to prurient interest. A test for obscenity derived from Roth that included the following five-part structure: (1) the perspective of evaluation was that of an ordinary, reasonable person, (2) community standards of acceptability were to be used to measure obscenity, (3) works whose predominant theme was questionable were the only target of obscenity law, (4) a work, in order to be evaluated for obscenity, had to be taken in its entirety, and (5) an obscene work was one that aimed to excited individuals’ prurient interest. Miller revised Roth’s emphasis on creating a uniform Federal standard. Instead, it touted reliance on community standards of a more local nature, which threw the arduous task of defining obscenity back upon the States.

The Supreme Court has repeatedly grappled with problematic elements of the Miller test for obscenity. However, to date, no standard has replaced it.