According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:
- 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 and/or artistic, political, or scientific value.
The Miller test was written in 1973 — long before the advent of the Internet, and in a day and age of far less mobility than we live in today. Accordingly, it doesn’t seem to really fit in with the Internet. When you apply “community standards” to your local bookstore — well, it seems relatively simple to apply the Miller test. However, when looking at a global medium, the test starts to lose some of its logical wheels. For a good discussion of this issue, see Lawrence G. Walters and Clyde F. DeWitt, Obscenity in the Digital Age, the Re-Evaluation of Community Standards.
Walters (disclaimer, he is the managing partner of my law office) finally got to test out his theory in a recent case taking place in Florida’s panhandle — as reported in Adult Video News:
ESCAMBIA COUNTY, Fla. – Circuit Court Judge Ron Swanson ruled Tuesday that the community standards of a four-county area will be used in determining whether videos Ray Guhn produced are obscene.
While Swanson rejected the grounds for the case’s dismissal, which were brought by Guhn’s attorney Larry Walters, the judge granted Walters’ request that jurors use the community standards of Escambia, Santa Rosa, Okaloosa and Walton counties, instead of those of only Santa Rosa County. The effect of this ruling was to nullify the prosecution’s earlier transfer of the case from Esacambia to Santa Rosa County.
This will benefit the defense, Walters said.
“This is a victory and an important ruling for our case,” Walters told AVN Online on Wednesday. “We are slowly chipping away at this concept that county standards are appropriate for the Internet. While we believe it should be the nation or the state, at least we received a larger area than just one county. We argued that it would be too small of an area without enough diversity.”
In a 1973 case, the U.S. Supreme Court ruled that in order for material to be deemed obscene, it has to offend community standards. While courts usually have applied a local or state community standard, Walters argued for national community standards to be used because of the universal nature of the Internet. (source)