Obscenity – Put It To The Test

Date: 2011.02.23 | Category: Writing | Tags:

Regardless of how long any of us have been an adult webmaster we all need to be
aware of obscenity laws and, in particular how they affect our businesses
whether we think a hardcore photoset is ‘obscene’ or not ultimately, if you get
taken to court on obscenity charges the one thing you should be aware of is how
the courts will decide whether the images you are using will be classified as
obscene or not.

Testing Obscenity – The Miller Test.

The Miller test was developed in the 1973 court case of Miller vs. California
and in comprises of three parts ALL of which MUST be satisfied on order for
something to be deemed obscene by the courts. The Miller test is the ‘official’
method used by the United States Supreme Court for determining whether an
expression or a speech can be determined as obscene and, if deemed obscene, it
is not protected under the First Amendment and is therefore prohibited by law.

The Miller Test – Part One.

Part one of The Miller Test states something may be obscene if ‘the average
person, applying contemporary adult community standards, would find that the
work, taken as a whole, appeals to the prurient interest’ In essence, this
means that if the ‘average’ person on a jury or on the bench finds the work to
be deemed obscene then, it is. However for the court to rule something as
obscene it also has to be deemed obscene by the standards set in part two and
part three below.

The Miller Test – Part Two.

Part two of The Miller Test states that something is potentially obscene is
‘the average person, applying contemporary adult community standards, would
find that the work depicts or describes, in a patently offensive way, sexual
conduct’. Basically this is saying that if the images or speech is something
which is not practiced in a manner befitting your local community standards
then again, it may be obscene. However, as with part one of The Miller Test for
a court to find something obscene it needs to fall below the standards in part
three below.

The Miller Test – Part Three.

Part three of The Miller Test states that something is potentially obscene if,
‘a reasonable person would find that the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.’ This is pretty much where
you could potentially come unstuck after all, everyone has different sexual
tastes and because of this, just because something that may be widespread such
as ‘bare backing’ (to use as an example) could potentially be considered as
obscene if you happen to have a jury who are devout practicers of safe sex.

The Miller Test – Overview.

In essence The Miller Test is a useful guideline for webmasters when it comes
to operating our sites and specifically, when it comes to choosing the types of
content we utilize on them however, for the most part The Miller Test itself is
outdated. Since the early 70’s when this test was devised there have been many
sexual practices that were once deemed obscene that have become more a part of
everyday life and accepted in to society as whole thus, what once would (or
could) have been deemed obscene would no longer be in the same sense as
something that may be deemed obscene today could be found not to be in 5 years
time.

Article written by Lee