This Day in the Law
June 21

Miller Test Established (1973)

On June 21, 1973, the Supreme Court of the United States decided the case of Miller v. California, thus establishing the Miller Test for determining whether speech or expression can be labeled as obscene. This is an important distinction because obscene speech is not protected by the First Amendment.

Marvin Miller was the operator of a large West Coast mail-order businesses dealing in sexually explicit material. Miller had conducted a mass mailing campaign to advertise the sale of illustrated books which were labeled “adult” material. He was found guilty in the Superior Court of Orange County, California of having violated the California Penal Code by knowingly distributing obscene material. This was a misdemeanor. Miller appealed, but the conviction was affirmed by the California Court of Appeals. It eventually went to the Supreme Court of the United States.

The Supreme Court decided in favor of the state of California on June 21, 1973. The court had to decide whether the sale and distribution of obscene material was protected under the First Amendment's freedom of speech guarantee. The Court ruled that it was not. In the course of its decision, the Court established what is known as the Miller Test to determine whether something should be considered obscene material.

The Miller Test 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 or excretory functions specifically defined by applicable state law,
  • Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (Miller, 413 U.S. at 24-25)
The work is considered obscene only if all three conditions are satisfied.

Today, the Miller Test is still used as the standard for determining whether materials are obscene.

Miller v. California, 413 U.S. 15 (1973)