What is the Miller Test?

G. Wiesen

The Miller Test is an American legal test by which a particular item can be evaluated to determine whether or not it is legally considered to be obscene. This test was established by the US Supreme Court and allows other courts in the US to more precisely determine the obscenity of an item. Works that are judged to be obscene are not protected by the First Amendment of the US Constitution, and distribution of such items can result in civil or criminal punishment.

Works that are judged to be obscene are not protected by the First Amendment.
Works that are judged to be obscene are not protected by the First Amendment.

Also known as the Three Prong Obscenity Test, the Miller Test consists of three basic conditions an item must meet to be deemed obscene. These conditions were established in the 1973 decision of the US Supreme Court case Miller v. California and served to define a new way of evaluating the obscenity of an item. Older methods for considering obscenity were often based on vague language and concerns of whether an item had any redeeming qualities.

The U.S. Supreme Court first established the Miller Test for obscenity.
The U.S. Supreme Court first established the Miller Test for obscenity.

The first condition of the Miller Test is that the “average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.” This means that the “average person” in a particular community must consider an item to be lascivious or pornographic in nature. The analysis uses “community standards,” which means that an item may be considered obscene in one part of the country, while not being obscene in another state or city.

According to the Miller Test, an obscene item “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” This second condition of the Miller Test means that the content of a particular item must actually be explicit in nature, rather than merely suggestive. The third condition of the Miller Test states that an item is obscene if it also “lacks serious literary, artistic, political, or scientific value.” This is similar to previous tests that evaluated obscenity based on whether an item had any redeeming qualities.

In order for a particular item to be deemed legally obscene, it must meet all three conditions of the Miller Test. The first two conditions allow local or community standards to be applied, which has been controversial and the subject of much debate, while the third condition allows for a larger, national evaluation of an item for redeeming qualities. Advocates of greater protection for free speech often argue that the use of terms such as “average person” and “community standards” are vague and allow for too much interpretation in the test. Since the establishment of the Miller Test, however, it has largely stood up to scrutiny and provided protection for literature and artwork that some have challenged as being obscene.

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Discussion Comments


@Reminiscence, I remember when the Miller test first came out, and a lot of pornography producers had to figure out a way around it legally or else lose their livelihoods. Some of the adult movie producers would edit in a scene of a professor discussing human sexuality in a classroom, then argue that the entire film had "educational value". Others argued that nudity alone was not obscene, so their displays of naked human bodies fell under the same legal protections as sculptures or paintings.

I don't believe the Miller test is given as much legal weight these days as it used to be. There are just too many ways to get around it. Modern federal laws prohibit the possession of the most taboo sexual material, such as child pornography or bestiality.


I grew up in an area where X-rated tapes were either ordered through the mail in plain brown wrappers or sold out of the back of a questionable video store. Our "community standards" were pretty severe when it came to pornographic movies or magazines. Years later, I was walking through an open air flea market near Baltimore and literally ran into a huge box filled with adult videos. There were no people guarding the box, and entire families could walk right past it, or browse the selections if they wanted.

I think about the Miller test now and realize there is no good way to use "community standards" as a measure for anything approaching obscenity. My hometown would have sent a provocative artist like Robert Mapplethorpe to prison for peddling smut. Another city would have provided a venue to display his work. Outside of things like pedophilia or bestiality, which are patently obscene by their very nature, it's hard to say what is truly offensive these days.

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