ShyGuyInChicago
December 21st, 2010, 03:22 AM
Should laws banning obscenity be overturned. The Supreme Court ruled that material that is obscene is not protected by the first amendment in order for something to be deemed obscene it must meet three criteria
http://en.wikipedia.org/wiki/Miller_test
The Miller test was developed in the 1973 case Miller v. California.[2] It has three parts:
Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.[3]
The work is considered obscene only if all three conditions are satisfied.
The first two prongs of the Miller test are held to the standards of the community, and the last prong is held to what is reasonable to a person of the United States as a whole. The national reasonable person standard of the third prong acts as a check on the community standard of the first two prongs, allowing protection for works that in a certain community might be considered obscene but on a national level might have redeeming value.
For legal scholars, several issues are important. One is that the test allows for community standards rather than a national standard. What offends the average person in Jackson, Mississippi, may differ from what offends the average person in New York City. The relevant community, however, is not defined.
Another important issue is that Miller asks for an interpretation of what the "average" person finds offensive, rather than what the more sensitive persons in the community are offended by, as obscenity was defined by the previous test, the Hicklin test, stemming from the English precedent.
In practice, pornography showing genitalia and sexual acts is not ipso facto obscene according to the Miller test. 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, a region which had often boasted of being one of the most conservative areas in the US. 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.[4][5]
But the question is: is any of this the government's business to regulate? Is it right for a work that is considered offensive to most people and has no real value to banned? Should a constitutional amendment be enacted to overturn Obscenity laws so that obscene material is protected speech
http://en.wikipedia.org/wiki/Miller_test
The Miller test was developed in the 1973 case Miller v. California.[2] It has three parts:
Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.[3]
The work is considered obscene only if all three conditions are satisfied.
The first two prongs of the Miller test are held to the standards of the community, and the last prong is held to what is reasonable to a person of the United States as a whole. The national reasonable person standard of the third prong acts as a check on the community standard of the first two prongs, allowing protection for works that in a certain community might be considered obscene but on a national level might have redeeming value.
For legal scholars, several issues are important. One is that the test allows for community standards rather than a national standard. What offends the average person in Jackson, Mississippi, may differ from what offends the average person in New York City. The relevant community, however, is not defined.
Another important issue is that Miller asks for an interpretation of what the "average" person finds offensive, rather than what the more sensitive persons in the community are offended by, as obscenity was defined by the previous test, the Hicklin test, stemming from the English precedent.
In practice, pornography showing genitalia and sexual acts is not ipso facto obscene according to the Miller test. 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, a region which had often boasted of being one of the most conservative areas in the US. 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.[4][5]
But the question is: is any of this the government's business to regulate? Is it right for a work that is considered offensive to most people and has no real value to banned? Should a constitutional amendment be enacted to overturn Obscenity laws so that obscene material is protected speech