What is miller test

Section provides that a person who receives in the mail "any pandering advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative" may request the Postal Service to issue an order directing the sender to refrain from further mailings to the addressee, and the Postal Service must do so.

If the Postal Service believes that a sender has violated such an order, it may request the Attorney General to apply to a federal court for an order directing compliance. The language of 39 U. Section provides that any person may file with the Postal Service a statement "that he desires to receive no sexually oriented advertisements through the mails.

The court may employ various remedies to prevent future mailings. Violations of sections and are also subject to criminal penalties under 18 U. The federal law concerning dial-a-porn is section b of the Communications Act of , as amended, 47 U. Prior to April , it banned both obscene and indecent dial-a-porn in interstate commerce and foreign communications, but only if it involved persons under eighteen.

Although pornography that is indecent but not obscene is protected by the First Amendment, restricting minors' access to pornography, even to non-obscene pornography, generally presents no constitutional problems, as minors do not have the same rights as adults under the First Amendment. Therefore, the pre-April version of section b apparently was constitutional. In April , however, P. In June , the Supreme Court declared section b unconstitutional insofar as it applies to indecent messages that are not obscene.

Because the statute's denial of adult access to telephone messages which are indecent but not obscene far exceeds that which is necessary to limit the access of minors to such messages, we hold that the ban does not survive constitutional scrutiny.

The upshot of Sable was that Congress's extension to adults of the ban on dial-a-porn that is indecent but not obscene resulted in federal law's not banning such dial-a-porn at all, even if used by minors. Section b after the decision banned dial-a-porn only if it was obscene. Therefore, in , Congress enacted P. Under the law, section b applied "in the District of Columbia or in interstate or foreign communications"; under the Helms Amendment, it applies to all calls "within the United States.

The Helms Amendment also added section c , which prohibits telephone companies, "to the extent technically feasible," from providing access to any dial-a-porn "from the telephone of any subscriber who has not previously requested [it] in writing The Helms Amendment was challenged as unconstitutional, but a federal court of appeals upheld it, and the Supreme Court declined to review the case. Federal law contains no outright ban on all obscenity; it leaves this to state law.

However, the following federal statutes prohibit, among other things, obscenity on federal land or in federal buildings, in the mail, on radio and television, in interstate or foreign commerce, and on interstate highways and railroads even when the obscene material is transported intrastate.

This section makes it a crime, "in the special maritime and territorial jurisdiction of the United States or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States," or "in the Indian country as defined in section of this title," to sell or to possess with intent to sell, any obscene visual depiction.

This section declares to be "nonmailable matter" any "obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance," and makes it a crime knowingly to mail nonmailable matter.

This statute should be read to prohibit only what constitutionally may be prohibited. This section prohibits importation of, and interstate or foreign transportation of, "any obscene, lewd, lascivious, or filthy" printed matter, film, or sound recording, "or other matter of indecent character. California , ante , at Of course, Congress could always define other specific "hard core" conduct.

In , P. This section prohibits mailing matter, "upon the envelope or outside cover or wrapper of which, and all postal cards, upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, or obscene character are written or printed or otherwise impressed or apparent.

Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both. This statute, unlike the others cited thus far, may be applied to language that is not obscene under Miller. This is because broadcasting has more limited First Amendment protection than other media. Federal Communications Commission :. Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.

In Federal Communications Commission v. Pacifica Foundation , the FCC had taken action against a radio station for broadcasting a recording of George Carlin's "Filthy Words" monologue at 2 p. Nevertheless, the broadcast media have some First Amendment protection, and the Court emphasized the narrowness of its holding:.

This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy.

We have not decided that an occasional expletive in either setting would justify any sanction The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience Section , as quoted above, refers to "obscene, indecent, or profane language. In , Congress enacted P.

The FCC did so, but the regulations never took effect because the court of appeals declared the ban unconstitutional because "the Commission may not ban such broadcasts entirely.

In , a three-judge panel of the U. Court of Appeals for the District of Columbia held the law unconstitutional, but, on June 30, , the full court of appeals, by a vote, overturned the panel and upheld the statute, except for its 10 p.

The court of appeals found "that the Government has a compelling interest in supporting parental supervision of what children see and hear on the public airwaves," 82 and "that the Government has an independent and compelling interest in preventing minors from being exposed to indecent broadcasts. In , the FCC took action against four other television broadcasts that contained fleeting expletives, but, in , the U. Court of Appeals for the Second Circuit found "that the FCC's new policy regarding 'fleeting expletives' represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry.

We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC's new policy regarding 'fleeting expletives' is arbitrary and capricious under the Administrative Procedure Act.

It explained, however, why it was "skeptical that the Commission can provide a reasonable explanation for its 'fleeting expletive' regime that would pass constitutional muster. In , the U. Court of Appeals for the Third Circuit issued a unanimous decision invalidating the FCC's fine against CBS broadcasting station affiliates for broadcasting Janet Jackson's exposure of her breast for nine-sixteenths of a second during a SuperBowl halftime show.

This section, as amended by P. The term "facility of commerce" would include such things as the federal interstate highway system, federally numbered highways, and interstate railroads, even if such facility were used only intrastate. The term "means of interstate commerce" would include motor vehicles, boats, and airplanes capable of carrying goods in interstate commerce.

The new offense would be committed, for example, by transporting obscene material by truck via Interstate 95 from Richmond to Alexandria, Virginia, with the intent that at least part of it would then be sold to customers outside of Virginia. In , in Memphis, Tennessee, Robert and Carleen Thomas, a husband and wife from Milpitas, California, were convicted and sentenced to prison under 18 U.

The Sixth Circuit affirmed, holding that 18 U. Therefore, they contend, BBS [bulletin board service] operators like Defendants will be forced to censor their materials so as not to run afoul of the standards of the community with the most restrictive standards.

Section A applies whether an actual minor is used or not, but covers only depictions of minors engaged in specified sexual activities, and not in lascivious exhibition of the genitals or pubic area.

Free Speech Coalition. This section provides for criminal forfeiture in obscenity cases. Specifically, it provides that a person convicted under the federal obscenity statute 18 U. Section b of the amendment provided that any property subject to forfeiture pursuant to section may be forfeited to the United States in a civil case in accordance with the procedures set forth in 18 U. This section, enacted in , makes it a crime "knowingly to utter[ ] obscene language or distribute[ ] any obscene matter by means of cable television or subscription services on television.

Code made it "unclear under what circumstances, if any, the federal government could enforce [47 U. Section also provides that no provision of federal law is intended to preempt the power of the states, including their political subdivisions, "to regulate the uttering of language that is obscene or otherwise unprotected by the Constitution or the distribution of matter that is obscene or otherwise unprotected by the Constitution.

There are also other statutes codified in title 47 of the U. Code that regulate obscenity and indecency on cable television; see below. This section creates a rebuttable presumption that an item produced in one state and subsequently located in another, or produced outside the United States and subsequently located in the United States, was transported in interstate or foreign commerce. This means that, if the government proves the change of location, then, unless the defendant shows that the allegedly obscene material had not been transported in interstate or foreign commerce, it would be deemed to have been so transported.

This section, added by P. In addition to 18 U. Code, regulate obscenity and indecency on cable television. In , in Turner Broadcasting System v. Federal Communications Commission , which did not involve obscenity or indecency, the Supreme Court held that cable television is entitled to full First Amendment protection. Federal Communications Commission , a plurality of the Justices retreated from the Court's position in Turner.

They wrote: "The Court's distinction in Turner , While that distinction was relevant in Turner to the justification for structural regulations at issue there the 'must carry' rules , it has little to do with a case that involves the effects of television viewing on children.

Another relevant statute concerning cable television is 47 U. The Communications Decency Act of , P. Upon request by a cable service subscriber, a cable operator shall, without charge, fully scramble or otherwise fully block the audio and video programming of each channel carrying such programming so that one not a subscriber does not receive it. This section includes no restriction on the type of material that a subscriber may request to have blocked.

In other words, for. Instead, the statutory disability applies only to channels 'primarily dedicated to sexually-oriented programming. If a statute regulates speech based on content, it must be narrowing tailored to promote a compelling Government interest If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative.

The Court noted that there is "a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the capacity to block unwanted channels on a household-by-household basis The Government has not met that burden here.

This report has previously noted amendments the act made to 18 U. Section rewrote 47 U. It did not amend subsections b or c , which restrict commercial dial-a-porn services see Section II. Although the CDA defines "telecommunications," it does not define "telecommunications device. In Reno v. Section a 1 A thereby no longer raises the constitutional issue raised by ApolloMedia Corp. American Civil Liberties Union. Section d thus no longer raises the constitutional issue that gave rise to Reno v.

As for whether the CDA is the least restrictive means to further the governmental interest, the Court found that "the Government [failed] to explain why a less restrictive provision would not be as effective as the CDA. Could Congress reenact the CDA be reenacted in a narrower form that would be constitutional? The Supreme Court did not say, but it did not foreclose the possibility. It wrote:.

The arguments in this Court have referred to possible alternatives such as requiring that indecent material be "tagged" in a way that facilitates parental control of material coming into their homes, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet—such as commercial web sites—differently from others, such as chat rooms.

It has never taken effect, however, because a federal district court issued a preliminary injunction against its enforcement pending trial. The preliminary injunction was affirmed on appeal, most recently by the Supreme Court, which, in , remanded the case for trial. Court of Appeals for the Third Circuit affirmed, and, in , the Supreme Court declined to review the case.

COPA differs from the CDA in two main respects: 1 it prohibits communication to minors only of material that is "harmful to minors," rather than material that is indecent, and 2 it applies only to communications for commercial purposes on publicly accessible websites.

It defines "material that is harmful to minors" as pictures or words that—. A the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;. B depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and.

C taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. A communication is deemed to be for "commercial purposes" if it is made in the regular course of a trade or business with the objective of earning a profit; a communication need not propose a commercial transaction to be deemed to be for "commercial purposes. The fact that COPA makes exceptions for messages with serious literary, artistic, political, or scientific value for minors, and that it applies only to commercial websites, makes it more likely than the CDA to be upheld.

Nevertheless it may well, like the CDA, be found to "suppress[ ] a large amount of speech that adults have a constitutional right to receive and to address to one another. COPA was scheduled to take effect on November 20, , but a coalition of 17 civil liberties groups filed suit challenging it, and, on November 19, Judge Reed of the federal district court in Philadelphia, finding that there was a likelihood that the plaintiffs would prevail, issued a temporary restraining order against enforcement of the law.

On February 1, , he issued a preliminary injunction against enforcement pending a trial on the merits. The preliminary injunction applies to all Internet users not just the plaintiffs in this case and provides that, even if the law is ultimately upheld, the Administration may not prosecute online speakers retroactively.

On June 22, , the U. It did not, however, remove the preliminary injunction against enforcement of the statute. LII Wex Obscenity. Obscenity Primary tabs Obscenity is a category of speech unprotected by the First Amendment.

A comprehensive, legal definition of obscenity has been difficult to establish. Yet, key components of the current obscenity test stem from the U. Court of Appeals decision in United States v. One Book Entitled Ulysses , which determined that a work investigated for obscenity must be considered in its entirety and not merely judged on its parts.

Supreme Court: United States v. Older methods for considering obscenity were often based on vague language and concerns of 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. In Jenkins v. Georgia, U.

Ohio, U. Then followed his famous remark: 'But I know it when I see it, and the motion picture involved in this case is not that. Illinois, U. In Hamling v. United States, U.