Miller v. California - The Miller Standard For Obscenity

Chief Justice Warren Burger, writing for the majority in Miller, established a three-part standard for obscenity. According to the Miller standard, a judge should ask him or herself three questions. First of all, would "the average person," using standards common to the time and place find that a given movie, book, or other work appeals to sexual desires? Second, does the movie, book, or other work use clearly offensive means to show or describe sexual conduct in a way specifically prohibited by state law? And third, does the movie, book, or other work, "taken as a whole, [lack] literary, artistic, political, or scientific value"?

Elsewhere in his majority opinion, Burger declared flatly that the First Amendment does not protect obscene material as a form of free speech; to be protected, it must be shown to serve some purpose other than appealing to sexual interests. In this he reaffirmed the Court's holding in Roth v. United States (1957), and built on the three-part obscenity test established by Justice William J. Brennan in Memoirs v. Massachusetts (1966), a set of questions revolving around whether "(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."