What is the essence of Miller v. California?
The Miller test — and we still use it today in every state court, every federal court trial in the United States — is a three-part test. The first two prongs use community standards; in other words, instead of asking the jury, “Do you think this is obscene?” you’re supposed to decide whether you think an average person in the community of adults where you live or where you congregate would find that the material appeals to the prurient interest — meaning, does it appeal to that shameful, morbid, lustful, lascivious, erotic interest in sex — or does it appeal to a sort of a normal, healthy, educational reproductive interest? Second prong: Would that average person, applying community standards, find that it depicts the sexual activity in a patently offensive way? The question isn’t, “Is it offensive sex?” It’s whether it depicts it in an offensive way. So there could be non-obscene movies about rape and incest and pillaging, and there could be obscene movies about Romeo and Juliet’s
