Is the Miller test used to determine if something is child pornography?

Friday, November 15, 2002

No, the Miller test concerns obscenity, not child pornography. In its 1982 decision New York v. Ferber, the U.S. Supreme Court determined that child pornography was a separate category of expression that received no First Amendment protection.

“The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children,” the high court wrote.

For example, the Supreme Court noted that the Miller test requires that a work have no serious literary, artistic, political or scientific value before it can be considered legally obscene. But a work could have serious value yet still involve the sexual abuse of a child, the high court reasoned. The Court quoted a congressman for the proposition that “it is irrelevant to the child [who has been harmed] whether or not the material … has a literary, artistic, political or social value.”

The Supreme Court concluded:

“The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.”