Understanding obscenity and the First Amendment: an argument for clearer legal standard - sample communication paper

In 1973, the Supreme Court decided Miller v. California, a case which articulated a three-part test for determining whether material was obscene. This example law paper argues that the third prong of the Miller test is vague it needs to be clarified if we are to have a strong national policy that regulates obscenity. The paper is well organized and offers thoughts from outside sources on the topic. This sample argumentative legal paper would be a good reference for a student who wants to disagree with a major court holding.

Just how serious is obscenity?

This essay will examine the third part of the obscenity test articulated in Miller v. California by specifically asking what the importance of defining the term "serious value" is. Understanding these words is essential because the third part of the Miller test serves as a national standard for determining whether material is obscene and therefore must be clear. Unlike the other two parts of the test, the third section leaves no room for variance, which is why a specific meaning is so important. What constitutes "serious value" must be elaborated because it is the key to determining whether, actually obscene speech can be constitutionally protected if it has serious scientific, literary, artistic, or political value (serious SLAP value). In addition, the lack of clarity regarding what "serious" represents will lead to either overbroad protection of obscene work, or violations of the First Amendment right to freedom of speech. I will argue that in order for the third part of the Miller test to serve as a sufficient national standard for obscenity, the term "serious value" must be effectively defined, and that the definition must increase the possibility of prosecuting individuals for obscenity.

The majority opinion in Miller v. California is in opposition to my opinion that the meaning of "serious value" is unclear and needs to be further explained. The majority opinion consisting of Chief Justice Burger, Justices White, Blackmun, Powell, and Rehnquist argued the third part of the test acts as a clear nationally set standard for obscenity and can rely on a jury to be the fact finder when determining whether the work as a whole lacks serious scientific, literary, artistic, or political value. The Court majority wrote, the "utterly without redeeming social value" test in Memoirs made it too difficult to classify work as obscene, thus they changed the word utterly to serious in an attempt to make it easier for work to be labeled obscene (Shiffrin and Choper, 104-105).

Another position I am responding to is Justice Brennan's claim in his dissent that the third part of the test is overbroad and will allow work with some social value to be outlawed. Brennan also argues the Miller decision contradicts the Roth-Memoirs decision because it claims material can be obscene if it lacks serious social value, whereas Roth says material can only be classified as obscene if there is no possible social value. Brennan states that only protecting speech with serious literary, artistic, scientific, and political value will lead to general suppression of sexually oriented speech (Shiffin and Choper, 111).

To explain, I find that the Court's majority opinion is basically claiming the third part of the test is important because it provides a consistent test that can be nationally applied to cases dealing with obscenity. They argue that the jury acting as a fact finder can effectively determine what constitutes serious SLAP value to determine whether the work in question is obscene. They claim the Memoirs test of "utterly without social value is too broad and makes it impossible for State's to exercise their power of deeming material obscene. Moreover, it seems Brennan, in his dissent claims the opposite, stating that the third part of the Miller test infringes upon the First Amendment by opening the door to widespread regulation of sexually based speech. Brennan then effectively states that the third part is unclear and thus unfair because it fails to provide guidance to the general public, as to what work will be labeled obscene. He also points out this section of the test doesn't help law enforcement officers understand how to enforce obscenity any better. Consequently, Brennan basically rejects the majority decision because he believes it unconstitutionally suppresses speech, and is unspecific as to what "serious value" actually means.

The Court's decision to implement the rule of serious SLAP value in the Miller decision is a good way to establish a national standard for obscenity, however I believe that the term "serious" must be articulated for it to act as a national standard. The serious value concept could be widely interpreted and difficult to understand. The Court fails to provide any guidance as to when a material or specific piece of work can qualify as having serious SLAP value. Does this mean the work in question must promote a specific doctrine of a political party or does it mean the work simply has to go against the basic culture? Amy Adler writes in her essay on the obscenity test, that the Miller Court's "serious" artistic value requirement could have three different interpretations (Adler, 99). And that is only the artistic section of the third part of the test. Therefore, it is evident to me that the term "serious value" is quite unclear and must be elaborated upon by the Court to provide a consistent national standard. Their needs to be a way to determine when scientific, literary, artistic, and political value becomes serious enough for the work to not be considered obscene. Consequently in this area, I agree with Justice Brennan that the third part of the test doesn't provide adequate guidance to the public and law enforcers as to what stands as obscenity.

In addition to the need to elaborate on the meaning of "serious value" in order to provide an effective national standard, I believe that the interpretation of the third part needs to make it easier for work to qualify as obscene. Since the Miller decision, there have been so few prosecutions for obscenity that it forces me to conclude, in direct contradiction to Brennan's fear of the Miller decision producing excessive obscenity based convictions, the serious SLAP value part of the test has actually made protection of sexually based speech overbroad. Daniel Mark Cohen noted in his essay, the Miller decision produced no increase in prosecutorial or lower court convictions for obscenity (Cohen, 545). Thus, the notion of serious SLAP value needs to be defined in a way that ensures sexually explicit material with little to no social value such as pornography depicting rape, physical abuse, mental abuse, bestiality, and child porn is classified as obscene. Overall, this prohibition is so narrow that it does more to validate sexually arousing speech than it does to rid the community of it. As David Cole explains, you have about as good of a chance of being struck by lightning as being prosecuted for obscenity ( Cole, 173). With the extreme amount of pornography and sexually explicit material available today, this is a reality that is clearly out of balance and illustrates we have clearly given too much room for obscenity in society.

One of the major counter arguments to my ideas would be, the serious SLAP value requirement is clear in the third part of the Miller test. Some may argue the fact that there has been consistency in the rulings on cases dealing with obscenity is evidence there is an overall understanding of what "serious value" means. They may follow the majority's idea that having the jurors interpret what stands, as "serious value" is good enough to serve as a consistent definition for the third part of the test. While this argument demonstrates a valid point, it ultimately doesn't hold strong. First, the fact that there have been so little prosecutions for obscenity is more so evidence that people are unclear as to what counts as "serious value". If people were unsure as to whether a particular piece of work qualified as obscene or not, they would be most likely to side on the side of not convicting. Because our legal system is based on the premise: "innocent until proven guilty", the lack of prosecutions likely illustrates that people in general are unsure of how to determine if something has serious SLAP value or not. Furthermore, we cannot rely on individual jurors to decide for them selves whether the SLAP value requirement is met. The third part of the test, as I have already discussed is meant to serve as a national standard that can be applied evenly throughout the US. Therefore, relying on jurors to interpret, defeats part of the third sections purpose. Secondly, some may object to my claim that there needs to be a change that will ensure obscenity prosecutions actually occur. They might argue that to increase the governments power to deem material obscene would chill speech by regulating the market of ideas. However, I would rebut this by explaining, an interpretation of the third part of the Miller test that makes it easier to define a work as obscene, would only serve to chill speech and work that hold no or very little social value. A tougher definition for classifying work, as having serious SLAP value would only prevent material actually deemed obscene by the other two parts of the Miller test from being overturned due to an overbroad third test.

Thirty-five years after the Miller v. California case was decided it is more evident than ever the third part of the test is unclear and confusing. The notion of "serious SLAP value" has failed to serve as national standard that ensures only obscene speech with significant social value is protected, through its continuous overbroad application. I believe, the Supreme Court must define just what qualifies as "serious value" in order to create a set standard that ensures material with little to no redeeming social value is not undeservingly protected from being labeled obscene.
 

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