How have courts applied the Miller obscenity test to online pornography across different federal circuits?
Executive summary
Federal courts have applied the three-part Miller obscenity test to online pornography unevenly, producing a de facto circuit split over whether Internet content should be judged by local community standards or a national standard and how the test’s third “serious value” prong is assessed [1] [2]. Lower courts — most notably the Ninth Circuit and the Third Circuit — have reached opposite practical outcomes in cases that turned on the geographic reach of online speech, while the Supreme Court has repeatedly signaled discomfort with applying wholly local standards online without squarely resolving the tension [2] [3] [4].
1. What the Miller test requires and how courts treat its parts
The Miller test demands three findings for material to be obscene: that an average person, applying contemporary community standards, would find the work appeals to prurient interest; that it depicts sexual conduct in a patently offensive way as specifically defined by law; and that, taken as a whole, it lacks serious literary, artistic, political, or scientific value — the so‑called SLAPS prong — which the courts evaluate under an objective “reasonable person” standard rather than local tastes [1] [5]. The Supreme Court has made clear that the first two prongs are essentially questions of fact for juries applying community standards, while the third is judged more nationally by whether a reasonable person could find redeeming value [6] [5].
2. The Ninth Circuit’s Internet-friendly approach
The Ninth Circuit has been the most aggressive in resisting purely local applications of Miller online, holding in cases like United States v. Kilbride and related litigation that national or broader standards should temper the jury’s use of parochial community mores when speech is disseminated via the Internet [2] [7]. That body of precedent underpins decisions such as Nitke v. Gonzales, where courts confronted how to measure community offensiveness for widely distributed web content and raised doubts about forcing speakers to conform to the most restrictive localities [2] [4]. The Ninth Circuit rationale reflects scholarly concern that Miller’s “contemporary community standards” paradigm struggles with globally accessible media [4].
3. The Third Circuit, Extreme Associates, and local enforcement
By contrast, the Third Circuit enforced a local-community standard against a California pornography distributor whose materials were accessible in western Pennsylvania in United States v. Extreme Associates, affirming that Internet availability can subject a speaker to the standards of distant communities where the content is accessible [2]. That ruling exemplifies how applying Miller locally can expose out‑of‑state producers to conviction based on remote juries’ sensibilities and underscores the power of venue choices in obscenity prosecutions [2].
4. Supreme Court signals, statutory challenges, and unresolved tensions
The Supreme Court has repeatedly confronted but shied away from fully dismantling Miller’s localism for online speech; in COPA and other challenges justices questioned the constitutionality of forcing web speakers to meet many different community standards, and lower-court invalidations of portions of COPA reflect those concerns [3]. Meanwhile, the Court’s guidance that the value prong is measured by a reasonable-person national perspective injects a counterbalance, but it has not resolved whether the first two prongs should be localized for Internet distribution — leaving a split among circuits intact [5] [6].
5. Practical effects: prosecutions, chilling effects, and academic debate
Practically, the uneven application of Miller online has meant prosecutors can and do bring federal obscenity cases where material crosses state lines, and scholars warn the doctrine chills speech because of uncertainty over which community’s mores will apply; policy and enforcement data have fueled debates about whether Miller survives the era of ubiquitous digital distribution [8] [4]. Authoritative guides and legal summaries continue to treat Miller as the governing test while documenting the enforcement difficulties produced by the Internet age, and commentators note that courts and legislatures have struggled to reconcile First Amendment principles with the original Miller framework [9] [10] [4].