Miller v. California (1973) – current obscenity definition

1. Miller v. California (1973) – current obscenity definition • State must establish that: • The average person applying contemporary community standards would find the work taken as a whole appeals to the prurient interest; • The work depicts or describes in a patently offensive way sexual conduct specifically defined by state law; and • The work taken as a whole lacks serious literary, artistic, scientific or political value.

2. Application of the Miller standard – Prongs 1&2 • Prongs 1 & 2(prurient interest and patently offensive) can be judged by juries using local community standards. • What problems arise with the use of local community standards? • How does this work now with the Internet? • Ashcroft v. ACLU – did not do away with the local community standard for Internet prosecutions but justices expressed uneasiness • Is it reasonable to punish a person who lives in California (& posts material there) in Tennessee because someone accessed their website?

3. Application of the Miller standard – Prong 3 • Prong 3– jury cannot use local standards to judge whether a work lacks “serious . . . value.” • Jury must ask whether a “reasonable person” would find that the material has serious value.” (Pope v. Illinois, 481 U.S. 497 (1987) • Usually established by expert testimony from people in the field – i.e., artists, scientists, writers, etc.

4. What interest does the government have in banning obscenity? • Is it because obscenity is low value? • Chaplinsky – low value speech = such slight social value that any benefit is outweighed by interest in order/morality • Does obscenity have no social value? Is it truly valueless speech? • What interest does gov’t have in banning the distribution/public display of obscenity (as opposed to pornography and other sexually explicit speech)? • Why doesn’t it have a similar or even greater interest in banning graphic depictions of violence?

5. Violent video games & minors – analogy to obscenity for minors? • Cal. Civ. Code § 1746.1(a): A person may not sell or rent a video game that has been labeled as a violent video game to a minor. • Exceptions – (1) reasonable reliance on proof of adulthood or mfrs’ failure to label & (2) minor received from parent, legal guardian or related adult • Many, Many definitions. Most important is in § 1746(d)(1): • "Violent video game" means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that . . . [either] (A) Comes within all of the following descriptions: (i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors. (ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. (iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors; [or] (B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim. • Terms – Cruel, Depraved, Heinous, Serious Physical Abuse, & Torture also defined