Quote:
Originally Posted by
jillianleab
Actually, no, this is not how it would be under his scenario. Under his scenario it would be as it is now - either ALL people can display, or NO people can display. Roadside memorials are fine as long as a Hindu, a Jew, a Christian, or a Buddhist can put one up. Santa parades can take place as long as the city who issues the permit will issue it to people who celebrate Kwanzaa too.
The government is not supposed to endorse a specific religion. Allowing one religion preference or dominance endorses that religion. If a government can't bring themselves to allow a Star of David to be displayed next to a Christmas tree, that government shouldn't be allowing either symbol.
The Miller Test
The Miller test is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.
The Miller test was developed in the 1973 case Miller v. California.[1] 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[2] 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).
The work is considered obscene only if all three conditions are satisfied.
The first two prongs of the Miller test are held to the standards of the community, and the last prong is held to a reasonable person standard. The reasonable person standard of the last prong acts as a check on the community standard of the first two prongs, allowing protection for works that in a certain community might be considered obscene but on a national level might have redeeming value.
For legal scholars, several issues are important. One is that the test allows for community standards rather than a national standard. What offends the average person in Jackson, Mississippi, may differ from what offends the average person in New York City. The relevant community, however, is not defined.
Another important issue is that Miller asks for an interpretation of what the "average" person finds offensive, rather than what the more sensitive persons in the community are offended by, as obscenity was defined by the previous test, the Hicklin test, stemming from the English precedent.
In practice, pornography showing genitalia and sexual acts is not de facto obscene according to the Miller test. For instance, in 2000 a jury in Provo, Utah, took only a few minutes to clear Larry Peterman, owner of a Movie Buffs video store, in Utah County, Utah, a region which had often boasted of being one of the most conservative areas in the US. Researchers had shown that guests at the local Marriott Hotel were disproportionately large consumers of pay-per-view pornographic material, obtaining far more material that way than the store was distributing.[3][4]
The point I was trying to make is that there is an example where the communities opinion can trump first amendment rights. If it works for sexually obscene things, why not those deemed offensive by the majority of the local community when it comes to displays?