
Miller test
i) Prurient interest:
(1) Whether to the average person
(a) Average person: the average person to whom the publisher designed the publication for; the audience to whom material is directed. Michelin v. NY
(2) Applying contemporary community standards (this will change based on time and community)
(a) Local community standard is flexible; you can do one of 3 things Jenkins v. Ga
(i) Tell the jury nothing (let them use their own jj),
(ii) Tell the jury it is a state wide standard (Texas follows this), or
(iii) Say it’s a local or regional standard as the court cares to define it.
(3) The dominant theme of the material, taken as a whole appeals to one’s prurient (a longing desire) interest in sex.
ii) Patently offensive
(1) Portrays in a patently offensive way
(2) Sexual conduct specifically defined by the applicable state law
(a) e.g. state statute must set out specifically what you can’t do; almost forces state to define obscene
iii) Lacks merit
(1) The work, taken as a whole, lack serious literary, artistic, political or scientific value
(a) Use the rzbly prudent man standard Pope v. Ill
(b) Local community standard applies to 1 & 2, but 3 is always the same.
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