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 a District Court case tried in 1933. United States v. One Book Called “Ulysses” 5 F. Supp. 182 (S.D.N.Y 1933), aff'd United States v. One Book Entitled Ulysses by James Joyce, 72 F2d 705 (2nd Cir. 1934) determined that a work investigated for obscenity must be considered in its entirety and not merely judged on its parts.

Currently, obscenity is evaluated by federal and state courts alike using a tripartite standard established by Miller v. California 413 U.S. 15 (1973). The Miller test for obscenity includes the following criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.

Prior to Miller, judges testing for obscenity invoked the wisdom handed down by the Court in Roth v. United States 354 U.S. 476 (1957). A landmark case, Roth ruled that obscene material was not protected by the First Amendment and could be regulated by the States rather than by a singular, Federal standard. Also, Roth established a new judicial standard for defining obscenity that invoked the average person’s application of contemporary community standards to judge whether or not the dominant theme of the material taken as a whole appeals to prurient interest. A test for obscenity derived from Roth that included the following five-part structure: (1) the perspective of evaluation was that of an ordinary, reasonable person, (2) community standards of acceptability were to be used to measure obscenity, (3) works whose predominant theme was questionable were the only target of obscenity law, (4) a work, in order to be evaluated for obscenity, had to be taken in its entirety, and (5) an obscene work was one that aimed to excited individuals’ prurient interest. Miller revised Roth’s emphasis on creating a uniform Federal standard. Instead, it touted reliance on community standards of a more local nature, which threw the arduous task of defining obscenity back upon the States.

The Supreme Court has repeatedly grappled with problematic elements of the Miller test for obscenity. However, to date, no standard has replaced it. In 1997, Reno v. American Civil Liberties Union 521 U.S. 844 (“ACLU I”) addressed obscenity in the field of new media. The ACLU challenged the Communications Decency Act (CDA), a portion of the 1996 Telecommunications Act aimed at protecting children by restricting transmissions sent over the Internet. After the Supreme Court ruled the CDA overly broad in its approach to regulating obscenity online, Congress passed the Child Online Protection Act (COPA). The ACLU again filed suit, which became Ashcroft v. Civil Liberties Union (00-1293) 535 U.S. 564 (2002) 217 F.3d 162 (“ACLU II”). Aschcroft, upheld the Constitutionality of COPA and deemed its use of “’community standards’ to identify ‘material that is harmful to minors’” acceptable practice under the first amendment. However, the Court also demanded that COPA be enjoined and the case be remanded to the Third Circuit, where the Court found COPA created a content-ban on adult transmissions, was overly broad, intrusive, and restrictive in its efforts to protect children from adult speech. The details of the case were finally resolved in January 2009, when the Supreme Court denied certiorari to ACLU v. Mukasey, No. 07-2539 (3d Cir. July 22, 2008), a case that could have broadened obscenity law beyond the parameters of the Miller test.