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 obscene and thus not under First Amendment protection. The Roth standard was largely replaced by the Miller test established by Miller v. California (1973).
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
The Miller test was developed in the 1973 case Miller v. California. It has three parts:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
- "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."
- Text of the decision and dissents, from findlaw.com
- The syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion.