def: The concept that some speech is indefensible under the First Amendment's free speech protections.
ex: The only thing that's obscene is the concept of obscenity itself.
I mean, come on, what the fuck is the justification for obscenity? Spiritual purity? Since when does the state have a compelling interest in protecting the spiritual purity of its citizens, and which government-sanctioned religion dictates which thoughts are spiritually pure, and which are spiritually bankrupt?
What exactly is the concept of freedom of speech? I'll tell you what it isn't. It isn't a selection of the community voting on whether or not your speech is wholesome.
Let's explore the conditions of The Miller Test (expanded):
1. The work in question must depict or describe sexual conduct.
* Proof that "obscenity" is concerned merely with sexual speech. That begs the question, why does sex, as a general topic, deserve more scrutiny under free speech rights than any other? Excepting of course, as the result of religious prudery.
2. The prohibited conduct must be specifically described in the law.
* This is actually reassuring, because I'd rather know exactly what sorts of things I can and cannot say, than to leave it up to interpretation. But this is only about the conduct described (or depicted) in the speech. Why should certain types of sexual acts not be allowed to be described or depicted? Surely, some acts may be considered criminal, but then, is the speech that accompanies them similarly criminal? If I take a picture of a crime, does that make me criminally liable? What if I merely discuss an illegal act, or draw it using stick figures? The illegal act itself has not been committed, but is it still illegal to talk about?
3. The work, taken as a whole, must lack serious literary, artistic, political, or scientific value. (the "SLAPS" test)
* This seems like a legitimate consideration, but it's totally empty. It's basically an extension of the "socially redeeming value" doctrine, attempting to delineate what constitutes "socially redeeming value" (which is a good thing - again, I want the law to tell me exactly what I can and cannot do, rather than leave it up to interpretation). Except that it's still a matter of interpretation. And are these really the only categories under which a work may have socially redeeming value? And why should a work have to have such value to be legal? Since when are we putting a value judgment on acts of speech, and then criminalizing the ones that are deemed worthless? We only do it with sexual speech. The underlying assumption is that sexual speech, on its own, is offensive and unredeeming, and that it has to contain some extra value to be worth defending - otherwise, it's corrupting and deserves to be censored and punished.
4. The work, taken as a whole and applying contemporary community standards, must appeal to prurient interest in sex.
* Following on that last point, we see that interest in sex for its own sake (i.e., "prurient" interest), is not defensible. This is religious bullshit about sexual purity and chastity. You're not allowed to have lustful thoughts - and if we catch you, that is, by hearing you engage in sexual speech for the sake of "prurient" interest, then we will punish you. What the hell? It's not the government's job to keep me sexually pure, and protect me from sexual corruption.
5. The work must portray sexual conduct in a patently offensive way, applying contemporary community standards.
* The whole contemporary community standards thing is scary, because it makes things rather subjective. I guess the idea is that if the speech offends the community, then it ought to be censored. Hello, is that what the concept of freedom of speech is supposed to represent? If it bothers people, it ought to censored, and punished? NO! Offensive speech (apart from harrassing behavior) should be strictly defended by the government! And anyway, why should community standards have ANYTHING to do with speech that is not broadcast publicly to the community? What people shout in the streets is one thing, and what they talk about over dinner is something else. Still though, the value of free speech is not dependent on whether or not people like it.
All together, it would seem that this is a pretty good test, given that a "work" (you can tell they're targeting pornographic videos, can't you?) has to fail all these standards to be deemed obscene. Yet not one of these standards is actually reasonable in context, and they all blatantly single out sexual speech for special scrutiny, yet without giving a justification for why this should be so. Which I suspect is because if they did give the justification, it would be obviously unconstitutional. "We are concerned for your mortal soul". The First Amendment covers not only freedom of speech, but freedom of religion. What other justification for safeguarding the sexual purity of citizens can you think of other than on religious grounds? There's no scientific evidence that prurient discussions or depictions of sexuality are harmful to people who want to have them (on the contrary, it tends to promote sexual interest, which is, by the way, required for the continued survival of the species) - and it's not okay to restrict a person's right to speak on the grounds that somebody else who hears it might get upset.
