Patently offensive

Patently offensive is a term that has been used in Supreme Court of the United States jurisprudence on obscenity law and the First Amendment.

The phrase "patently offensive" first appeared in "Roth v. United States", referring to any obscene acts or materials that are considered to be openly, plainly, or clearly visible as offensive to the viewing public. The "Roth" standard outlined what is to be considered obscence and thus not under First Amendment protection. The "Roth" standard was largerly replaced by the "Miller" test established by "Miller v. California" (1973).

Roth standard

According to the "Roth Standard" a work is obscene if:
*The dominant theme of the material taken as a whole appeals to a prurient interest in sex,
*The material is "patently offensive" because it affronts contemporary community standards relating to the description or representation of sexual matters,
*The material is utterly without redeeming social value

Chief Justice Warren E. Burger, writing for the majority, included the following definitions of what may be "patently offensive":

*"Representations or descriptions of ultimate sex acts normal or perverted, actual or simulated."
*"Representations or descriptions of masturbation, excretory functions, and lewd exhibitions of the genitals."

Miller test

The Miller test was developed in the 1973 case "Miller v. California". [* [http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/413/15.html Text of the decision and dissents] , from findlaw.com] It has three parts:

*Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the interest,
*Whether the work depicts/describes, in a offensive way, sexual conduct or excretory functions [The syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion.] specifically defined by applicable state law,
*Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the "(S)LAPS test"- [Serious] Literary, Artistic, Political, Scientific).

References