Obscenity by definition appeals to prurient or sexual interest or any foul works or speech

but not all sexual materials are considered obscene

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Obscenity is not protected under The First Amendment of the United States Constitution which protects
the right to freedom of religion and freedom of expression from government interference.

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In the landmark case Miller vs California the court develop a test in order to determine whether speech
or the material is obscene

To discuss the case briefly

Miller mailed brochures that contained pictures of sexually explicit activities to individuals who had not
requested the material, and the individuals notified the police. A case was filed against him for violating
Cal. Penal Code § 311.2(a) by knowingly distributing obscene matter. The court convicted him and
defendant sought review. next

Facts. Miller (Appellant), conducted a mass mailing campaign to advertise the sale of illustrated adult material
books. The Appellant’s conviction was specifically based on his conduct in causing five unsolicited advertising
brochures to be sent through the mail. The brochures consist primarily of pictures and drawings very explicitly
depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often
predominantly displayed. This case thus involves the application of a state’s criminal obscenity statute to a
situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients.

Issue. Whether the obscenity presented in this case is prohibited by the applicable state statute?

Held. In sum, the Supreme Court: (a) reaffirmed the Roth holding that obscene material is not protected by the
First Amendment of the United States Constitution (Constitution), (b) held that such material can be regulated by
the States, subject to specific safeguards, without a showing that the material is “utterly without redeeming social
value and (c) held that obscenity is to be determined by applying “contemporary community standards.” As a
result, the majority determined that the material at issue in this case was not protected by the First Amendment of
the Constitution and that the California state statute could regulate the matter. Furthermore, the requirement that
a California jury evaluate the materials with reference to “contemporary standards” is constitutionally adequate.

In this case, the court comes up with the 3 pronged test that To be obscene the expression or speech
must

- To the average person, applying contemporary standards, appeal to prurient interest.

Meaning, the appeal to sexual interest must be based by community standards, The location
and nature of the community matter
 What maybe offensive in Philippines may not be offensive in Australia.

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- Depict or describe, in a patently offensive way, sexual conduct, as specifically defined by the
applicable state law
So here, the work or material must display sexual conduct.
you can say something that appeals to prurient interest which is offensive and it is easy to
decide if offensive sexual conduct is displayed.

so let’s go back to the first criteria that to be obscene it must be according to the community
standards

and the 2nd criteria it must be offensive.

So What is offensive is going to be determined on what the community standards are.

The catch although is the 3rd one

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which is when taken as a whole, lack any serious literary, artistic, political, or scientific value.
The key thing or the big word here is LACK that for something to obscene it must LACK literary,
artistic, political, or scientific value

So if any of these are present for example pornographic films, does it appeal to prurient
interest? Yes. Does it display offensive sexual conduct? Again it may be yes depending on the
community standards. Now does it Lack literary, artistic, political, or scientific value? The answer
here is No, why? because pornographic films technically has a storyline which falls to the literary
value which makes the pornographic films not obscene.

There is an exception to these values which is the child pornography, though it is not also protected by
the first amendment but it is completely illegal to use a child in pornographic films, In New York v.
Ferber (1982), the Court unanimously outlawed child pornography, even if the pictures are not obscene
under the Miller test.

The Court upheld a New York statute prohibiting the production, exhibition or selling of any material
that depicts any performance by a child under the age of 16 that includes "actual or simulated sexual
intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse or lewd
exhibitions of the genitals." Said Justice White for the Court, "The prevention of sexual exploitation and
abuse of children constitutes a government objective of surpassing importance."
 So it does not have to be always sexually involved for a work to be obscene, it may also be what
appeals in your eyes that is offensive which is supported with your community standards which
lacks literary, artistic, political, or scientific value may be considered obscene.

All three elements are required for material to be considered obscene and therefore unworthy of
the First Amendment Protection

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Prior to the case of Miller, the Supreme Court had been using a similar from a British case, Regina v.
Hicklin (1868). Under the Hicklin test, if any part of the material was considered obscene, then the
publication as a whole was considered obscene. There was no provision for the potential social or
artistic value of the material. That standard was very restrictive and left a wide range of materials
unprotected.

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Hicklin Test (Isolated Passage Test)

• The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin

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• How is Hicklin test done?

On application of the Hicklin test, a publication can be judged for obscenity based on isolated passages
of a work considered out of context.

So here Works can be judged by their apparent influence on most susceptible readers, such as children
or weak-minded adults.

The Hicklin Test permitted a conviction for purveyors of obscenity if a publication had a mere tendency
to arouse lustful thoughts in the minds of the most susceptible, usually youthful, readers.

Under this test, judges considered a work to be obscene if any portion of the material had a tendency
"to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a
publication of this sort may fall."

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So another test is

ROTH TEST
Prior to Miller, judges testing for obscenity invoked the wisdom handed down by the Court in Roth v.
United States.

In Roth v. United States (1957), the Supreme Court rejected the Hicklin test and ruled that the
appropriate test for obscenity is "whether to the average person, applying contemporary community
standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest." A
landmark case, Roth ruled that obscene material was not protected by the First Amendment and could
be regulated by the States rather than by a singular, Federal standard.

Also, Roth established a new judicial standard for defining obscenity that invoked the average person’s
application of contemporary community standards to judge whether or not the dominant theme of the
material taken as a whole appeals to prurient interest.

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A test for obscenity derived from Roth that included the following five-part structure:

(1) the perspective of evaluation was that of an ordinary, reasonable person,

meaning that, conversely, any work with redeeming social importance was not obscene, even if
it contained isolated passages that could "deprave and corrupt" some readers.
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(2) community standards of acceptability were to be used to measure obscenity,
so this was discussed in miller test

and now lets discuss first the 4th structure of the test

(4) a work, in order to be evaluated for obscenity, had to be taken in its entirety

Laws of obscenity are made for society in the aggregate, and not in particular

Roth focused in 3rd and 5th structure of the test. He articulated that “ whether to the average person,
applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the
prurient interest.”

(3) works whose predominant theme was questionable were the only target of obscenity law, ,
and (5) an obscene work was one that aimed to excited individuals’ prurient interest.

To conclude my report

” The Roth test differed from the Hicklin test because it focused on “the dominant theme” of the
material as opposed to isolated passages and on the average person rather than the most susceptible
person.

Miller revised Roth’s emphasis on creating a uniform Federal standard. Instead, it touted
reliance on community standards of a more local nature, which threw the difficult task of
defining obscenity back upon the States
PEOPLE vs KOTTINGER G.R. No. L-20569

"The word "obscene" ordinarily means something which is offensive to chastity; something that is foul
or filthy, and for that reason is offensive to pure-minded persons. That is the meaning of the word in the
concrete; but when used, as in the statute, to describe the character of a book, pamphlet, or paper, it
means containing immodest and indecent matter, the reading whereof would have a tendency to
deprave and corrupt the minds of those into whose hands the publication might fall whose minds are
open to such immoral influences."

The location and nature of the community matter

What maybe offensive in Philippines may not be offensive in Australia.

The “establishing some redeeming educational, artistic, literary or political value” exception
commonly removes patently sexual materials from the obscenity category.

For example: diagrams or drawings in biology class, paintings or statues displayed in Museum are
unlikely to be considered obscene, almost no matter what they depict.

Once something is considered obscene, it can be banned or restricted at the government’s

discretion.

Sexual Materials, where not obscene due to community standards or redeeming value may not be
banned, but may still be heavily restricted.

For example cities are empowered to set up red light districts wherein sexual displays and material
are confined to, even if those materials are not considered obscene the government can impose
zoning restrictions on adult businesses, confining them to remote areas.

This is allowed because such zoning restrictions will limit the secondary effects of adult businesses,
while allowing adequate channels for free expression

- Speech or expression that qualifies as “obscene” is not afforded First amendment protection
because it is considered of “low value”

Obscenity is not protected under First Amendment rights to free speech, and violations of federal
obscenity laws are criminal offenses. The U.S. courts use a three-pronged test, commonly referred to as
the Miller test, to determine if given material is obscene. Obscenity is defined as anything that fits the
criteria of the Miller test, which may include, for example, visual depictions, spoken words, or written
text.

Federal law makes it illegal to distribute, transport, sell, ship, mail, produce with intent to
distribute or sell, or engage in a business of selling or transferring obscene matter. Convicted offenders
face fines and imprisonment. Although the law generally does not criminalize the private possession of
obscene matter, the act of receiving such matter could violate federal laws prohibiting the use of the
mails, common carriers, or interactive computer services for the purpose of transportation.

First Amendment: An Overview

The First Amendment of the United States Constitution protects the right to freedom of religion and
freedom of expression from government interference. It prohibits any laws that establish a national
religion, impede the free exercise of religion, abridge the freedom of speech, infringe upon the freedom
of the press, interfere with the right to peaceably assemble, or prohibit citizens from petitioning for a
governmental redress of grievances. It was adopted into the Bill of Rights in 1791. The Supreme Court
interprets the extent of the protection afforded to these rights. The First Amendment has been
interpreted by the Court as applying to the entire federal government even though it is only expressly
applicable to Congress. Furthermore, the Court has interpreted the Due Process Clause of the
Fourteenth Amendment as protecting the rights in the First Amendment from interference by state
governments.

Currently, obscenity is evaluated by federal and state courts alike using a tripartite standard established
by Miller v. California. The Miller test for obscenity includes the following criteria: (1) whether ‘the
average person, applying contemporary community standards’ would find that the work, ‘taken as a
whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as
a whole,’ lacks serious literary, artistic, political, or scientific value.

It is not protected not protected under First Amendment rights to free speech.

a. OBSCENITY
b. Freedom of expression
c. Hicklin Test

It is where a publication can be judged for obscenity based on isolated passages of a work considered
out of context.

a.Miller Test
b. HICKLIN TEST

c. Roth Test

The U.S. courts use a three-pronged test, commonly referred to as the 

a.MILLER TEST

b. Hicklin Test

c. Roth Test

A work, in order to be evaluated for obscenity, had to be taken in its __________

a. ENTIRETY
b. Individuality
c. Community

“Federal” means that there is both a national government and governments of the 50 states. A “republic” is a form
of government in which the people hold power, but elect representatives to exercise that power.