Redefining Obscenity

Case: Miller v. California.

Case citation: Miller v. California, 413 U.S. 15 (1973).


Marvin Miller was convicted of violating a California anti-obscenity law when he mailed brochures advertising his adult material business. The California Court of Appeals affirmed the conviction. On appeal, the Supreme Court vacated the appeals court ruling and remanded the case for further review. 

Decision: Remanded to lower court. 

Test - The Miller Test: 

This test redefines obscene material:

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


Minors in Pornography

Case: New York v. Ferber.

Case citation: New York v. Ferber, 458 U.S. 747 (1982).


Paul Ferber, an adult bookstore operator in New York was charged and convicted for selling films of teenage boys masturbating. A new York statute criminalized the promotion of such material featuring teenagers under 16. The New York Supreme court upheld the conviction but an appeals court reversed on the grounds that the statute introduced an obscenity standard that would criminalize other material protected by the Constitution. The U.S. Supreme Court held that as applied to Ferber, the statute was constitutional.

Decision: Reversed. 

Test - The Ferber Doctrine: 

  1. Use of children as subjects of pornographic materials is harmful to their physiological, emotional, and mental health
  2. The of Miller Test in defining obscenity is not a satisfactory solution to the child pornography problem
  3. Advertising and selling of child pornography provides an economic motive for exploiting minors
  4. Such depiction has negligible value
  5. Child pornography has no First Amendment protection


Computer-generated Images (CGI) in Pornography

Case: Ashcroft v. Free Speech Coalition.

Case citation: Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).


This case arose as reaction to the Child Protection Act of 1996 which banned, among other depictions, the use of computer generated images of minors engaged in sexual activity. The Free Speech Coalition, a trade association representing the adult entertainment industry sued for fear that the act was a threat to the industry. Although a district court issued a summary judgment at the request of the government, the 9th circuit court reversed this decision. Attorney General John Ashcroft appealed but the Supreme Court ruled that certain provisions of the act were over broad, thus unconstitutional.

Decision: The Court affirmed the lower court's decision. 

Test - GI in Pornography: 

  1. The government's argument against depiction of CGI creates crimes without victims.
  2. Unlike the Ferber Test, no minors are harmed with CGI depiction.
  3. Banning works based on the resemblance of GCI images to real children is over broad.

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