How do courts decide whether material is patently offensive?

In the United States, courts determine whether material is "patently offensive" as part of the three-part test established by the U.S. Supreme Court in the landmark case Miller v. California (1973).12

To be considered legally obscene and therefore excluded from First Amendment protection, material must meet all three criteria of the Miller test:

• Prurient Interest: The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient (lustful or immoral) interest.12
• Patent Offensiveness: The work depicts or describes, in a patently offensive way, sexual conduct that is specifically defined by applicable state law.12
• Lack of Value: The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.12

Regarding the second criterion, the Supreme Court has not provided a rigid, universal definition of what constitutes "patently offensive" conduct. Instead, it relies on the discretion of individual communities to apply their own "contemporary community standards" to determine if the depiction of sexual conduct is offensive. This standard has been extended to digital spaces, where courts have held that the standards of the community where the material is accessed can be used to judge its offensiveness, regardless of where the material originated.2