Obscenity Laws: Miller Test, First Amendment

This article provides a comprehensive overview of U.S. obscenity laws, focusing on the Miller Test and its interplay with the First Amendment, including historical context, key legal cases, and current legal frameworks.


Obscenity laws in the United States have long been a contentious issue, balancing the protection of societal morals against the fundamental right to free speech guaranteed by the First Amendment. This legal guide aims to provide a comprehensive overview of obscenity laws, focusing on the Miller Test and its relationship with the First Amendment. We will explore the historical context, key legal cases, and the current legal framework governing obscenity.

Historical Context

Early Obscenity Laws

The regulation of obscene material in the United States dates back to the 19th century. The Comstock Act of 1873 was one of the earliest federal statutes aimed at prohibiting the distribution of obscene materials through the mail. Named after Anthony Comstock, a prominent anti-obscenity crusader, the Act made it illegal to send "obscene, lewd, or lascivious" materials through the postal service.

Over the years, the legal standards for determining what constitutes obscenity have evolved. Early cases such as Roth v. United States (1957) established that obscenity was not protected by the First Amendment. However, the criteria for defining obscenity remained ambiguous until the landmark case of Miller v. California in 1973.

The Miller Test


The Miller Test, established by the Supreme Court in Miller v. California, provides the current legal standard for determining whether material is obscene. The test consists of three prongs:

  1. Prurient Interest: Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
  2. Patently Offensive: Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law.
  3. Lack of Serious Value: Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Application of the Miller Test

The application of the Miller Test involves a fact-specific inquiry, often requiring expert testimony and community standards assessments. Courts have the discretion to determine what constitutes "patently offensive" material and whether a work has serious value.

Key Cases

Miller v. California (1973)

In Miller v. California, the Supreme Court upheld the conviction of Marvin Miller, who had distributed unsolicited sexually explicit materials. The Court's decision established the three-pronged test for obscenity, emphasizing the importance of community standards and the need for clear definitions of prohibited conduct.

Read the full opinion here

Pope v. Illinois (1987)

In Pope v. Illinois, the Supreme Court clarified the third prong of the Miller Test, ruling that the determination of serious value should be based on an objective standard rather than community standards. This decision underscored the importance of protecting works with genuine artistic, literary, political, or scientific merit.

Read the full opinion here

First Amendment Considerations

Free Speech and Obscenity

The First Amendment to the United States Constitution guarantees the right to free speech, but this right is not absolute. The Supreme Court has consistently held that obscene material is not protected by the First Amendment. However, the challenge lies in defining what constitutes obscenity without infringing on legitimate expression.

Balancing Interests

Courts must balance the government's interest in regulating obscene material with the individual's right to free speech. This balancing act often involves complex legal and factual determinations, as seen in cases like Miller v. California and Pope v. Illinois.

Child Pornography

Child pornography is a distinct category of unprotected speech. The Supreme Court has ruled that the government has a compelling interest in protecting children from exploitation, and therefore, child pornography is not subject to the Miller Test. Instead, it is categorically excluded from First Amendment protection.

Read more about child pornography laws

Federal and State Regulations

Federal Laws

Federal obscenity laws are primarily enforced under Title 18 of the United States Code. Key provisions include:

  • 18 U.S.C. § 1461: Prohibits the mailing of obscene materials.
  • 18 U.S.C. § 1462: Prohibits the importation or transportation of obscene materials for sale or distribution.
  • 18 U.S.C. § 2252: Prohibits the production, distribution, and possession of child pornography.

Read more about federal obscenity laws

State Laws

State obscenity laws vary widely, with each state defining and regulating obscene material according to its own statutes and community standards. Some states have more stringent regulations, while others adopt a more permissive approach. It is essential to consult specific state laws to understand the local legal landscape.

Enforcement and Prosecution

Federal Enforcement

The Department of Justice (DOJ) is responsible for enforcing federal obscenity laws. The DOJ's Criminal Division, specifically the Child Exploitation and Obscenity Section (CEOS), plays a crucial role in investigating and prosecuting obscenity cases.

Learn more about the DOJ's role

State Enforcement

State and local law enforcement agencies also play a significant role in enforcing obscenity laws. Prosecutors at the state level may bring charges based on violations of state statutes, often working in conjunction with federal authorities.

Challenges in Prosecution

Prosecuting obscenity cases presents several challenges, including:

  • Determining Community Standards: The subjective nature of community standards can complicate the application of the Miller Test.
  • Technological Advances: The proliferation of digital media and the internet has made it more difficult to regulate and prosecute obscene material.
  • First Amendment Defenses: Defendants often raise First Amendment defenses, arguing that the material in question has serious value or does not meet the criteria for obscenity.

Recent Developments

Legislative Initiatives

Recent legislative efforts have focused on updating obscenity laws to address new challenges posed by digital media. For example, the Interstate Obscenity Definition Act aims to create a uniform definition of obscenity across state lines, facilitating more effective enforcement.

Read more about the Interstate Obscenity Definition Act

Technological Impact

The rise of the internet and social media has significantly impacted the regulation of obscene material. Lawmakers and courts continue to grapple with issues such as online distribution, encryption, and jurisdictional challenges.


Obscenity laws in the United States represent a complex intersection of legal principles, societal values, and technological advancements. The Miller Test remains the cornerstone for determining what constitutes obscenity, balancing the need to protect community morals with the fundamental right to free speech. As society evolves, so too will the legal landscape, requiring ongoing vigilance and adaptation to ensure that obscenity laws remain effective and just.


  1. Department of Justice - Obscenity
  2. Constitution Annotated - Obscenity
  3. Miller v. California - Full Opinion
  4. Pope v. Illinois - Full Opinion
  5. Child Pornography Laws
  6. Interstate Obscenity Definition Act

This legal guide provides a detailed overview of obscenity laws, the Miller Test, and their relationship with the First Amendment. By understanding these legal principles, individuals and legal professionals can better navigate the complexities of obscenity regulation in the United States.

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Von Wooding

Von Wooding

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