Roth v. United States, 354 U.S. 476 (1957)
Later superseded by another decision, this ruling held that the First Amendment does not protect obscene speech.
A publisher in New York, Samuel Roth, distributed a magazine that contained erotic stories and explicit photographs. The owner of a mail-order business in California, David Alberts, distributed publications that contained images of nude women. Each of them was convicted under an obscenity law, Roth for violating a federal statute and Phillips for violating a state law. Their cases were consolidated on appeal before the Supreme Court.
Traditionally, obscenity had been banned under the common law theory that it could corrupt impressionable minds, essentially those of children. Many notable works of literature had been prohibited from public circulation based on "obscene" passages.
- William Joseph Brennan, Jr. (Author)
- Felix Frankfurter
- Harold Hitz Burton
- Tom C. Clark
- Charles Evans Whittaker
Departing from the traditional common law rule, Brennan constructed a narrower definition of obscenity. He stated that contemporary community standards should be applied to determine whether the average person (rather than children) would find that the work's dominant theme (rather than individual passages) appealed to the prurient interest. Such material would need to be completely without redeeming social value to be classified as obscenity. This definition still did not protect the actions of the defendants under the First Amendment or mandate invalidating the laws as unconstitutional.
- Earl Warren (Author)
Although he agreed with the majority that the First Amendment does not shield obscenity, Warren felt that Brennan used overly vague language that could make the majority's holding apply too broadly.
- John Marshall Harlan II (Author)
Harlan argued that only Alberts' conviction should be sustained, since he believed that state governments have much greater authority to outlaw obscenity than the federal government does.
- William Orville Douglas (Author)
- Hugo Lafayette Black
These Justices felt that both convictions should be struck down, since obscenity should not be considered a categorical exception to First Amendment protections.Case Commentary
Unfortunately (or perhaps fortunately) for later courts trying to determine whether subject matter was obscene, this decision required a case-by-case analysis of the particular subject matter at issue. The results in this area have been unpredictable, with one Justice famously saying that he knew pornography when he saw it. Some clarity did emerge with the 1973 decision in Miller v. California, which replaced the Roth standard with a more concrete analysis. However, Brennan and other Justices involved in both decisions frequently acknowledged that the line between obscene and protected speech is challenging to draw.
U.S. Supreme CourtRoth v. United States, 354 U.S. 476 (1957)
Roth v. United States
Argued April 22, 1957
Decided June 24, 1957*
354 U.S. 476
1. In the Roth case, the constitutionality of 18 U.S.C. § 1461, which makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character," and Roth's conviction thereunder for mailing an obscene book and obscene circulars and advertising, are sustained. Pp. 354 U. S. 479-494.
2. In the Albert case, the constitutionality of § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale, or to advertise, material that is "obscene or indecent," and Alberts' conviction thereunder for lewdly keeping for sale obscene and indecent books and for writing, composing, and publishing an obscene advertisement of them, are sustained. Pp. 354 U. S. 479-494.
3. Obscenity is not within the area of constitutionally protected freedom of speech or press either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. Pp. 354 U. S. 481-485.
(a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 354 U. S. 482-483.
(b) The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. P. 354 U. S. 484.
(c) All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Pp. 354 U. S. 484-485.
4. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges' instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct. Beauharnais v. Illinois, 343 U. S. 250. Pp. 354 U. S. 485-490.
(a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest -- i.e., material having a tendency to excite lustful thoughts. P. 354 U. S. 487.
(b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. Pp. 354 U. S. 487-488.
(c) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. Pp. 354 U. S. 488-489.
(d) In these cases, both trial courts sufficiently followed the proper standard and used the proper definition of obscenity. Pp. 354 U. S. 489-490.
5. When applied according to the proper standard for judging obscenity, 18 U.S.C. § 1461, which makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character," does not (1) violate the freedom of speech or press guaranteed by the First Amendment, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 354 U. S. 491-492.
6. When applied according to the proper standard for judging obscenity, § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale or to advertise material that is "obscene or indecent," does not (1) violate the freedom of speech or press guaranteed by the Fourteenth Amendment against encroachment by the States, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 354 U. S. 491-492.
7. The federal obscenity statute, 18 U.S.C. § 1461, punishing the use of the mails for obscene material, is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7, and it
does not unconstitutionally encroach upon the powers reserved to the States by the Ninth and Tenth Amendments. Pp. 354 U. S. 492-493.
8. The California obscenity statute here involved is not repugnant to Art. I, § 8, cl. 7, since it does not impose a burden upon, or interfere with, the federal postal functions -- even when applied to a mail-order business. Pp. 354 U. S. 493-494.
237 F.2d 796, affirmed.
138 Cal. App. 2d Supp. 909, 292 P.2d 90, affirmed.