Roth v. United States; Albert's v. California, 354 U.S. 476 (1957), argued 22 Apr. 1957, decided 24 June 1957 by vote of 6 to 3; Brennan for the Court, Douglas and black in dissent, Harlan in dissent in Roth only. Laws prohibiting the sale or distribution of obscene literature have existed in the United States since the early part of the nineteenth century. Until 1957, however, neither those laws nor their enforcement was taken to implicate the concerns of freedom of
speech or freedom of the press. Obscenity laws were considered to be beyond the province of the
First Amendment; the Supreme Court's passing statements to that effect in cases such as
Ex parte Jackson (1878) and
Near v. Minnesota (1931) were merely restatements of settled understandings. As a result, criminal obscenity convictions based even on works of obvious literary value, such as Theodore Dreiser's
An American Tragedy (
Commonwealth v. Friede, 1930) and Arthur Schnitzler's
Casanova's Homecoming (
People v. Seltzer, 1924), were beyond the bounds of constitutional intervention.
After dealing with the issue tangentially in several cases in the late 1940s and early 1950s, the Supreme Court finally turned to the obscenity question in 1957. In
Roth v. United States and its companion case
Alberts v. California, the Court reaffirmed the longstanding view that obscenity was not covered by the First Amendment and that both state and federal obscenity laws were therefore constitutionally permissible. Justice William J.
Brennan's majority opinion based this conclusion not only on history and
precedent but also on the view that, although the First Amendment protects all ideas with even the slightest social importance no matter how hateful they may be, it does not even cover obscenity because obscenity is “utterly without redeeming social importance” (p. 484).
This conclusion, which both remains the law and remains controversial, likened obscenity to those various other utterances whose regulation need not be measured against a First Amendment standard. By holding that obscenity was to be treated as constitutionally equivalent to conduct rather than speech, the Court allowed obscenity regulation to proceed without the necessity of the kind of showing of particular harm normally required for restrictions on the kinds of speech covered by the First Amendment. Consequently, although there have long been debates on the effect of sexually explicit material on human conduct, the doctrinal exclusion of obscenity from First Amendment coverage made it unnecessary for the Court then (or since) to look at these debates critically.
Although the Court ratified the historical exclusion of obscenity from First Amendment coverage and thus put obscenity into the category of verbal or linguistic activities (such as perjury and price fixing) that lie outside the First Amendment, it also made clear that, unlike in the past, the test for obscenity would have to be tailored to First Amendment concerns in order to ensure that material that did have First Amendment value would not be subject to restriction.
If obscenity was unprotected by the First Amendment because it did not involve the conveyance of ideas, then the test of obscenity would have to guarantee that only material not conveying ideas would be determined to be obscene. The Court did not specify the exact test that would satisfy constitutional standards, but it did specifically rule that the traditional American test, taken from the English case of
Regina v. Hicklin (1868), allowing prosecutions based on the tendency of selected excerpts of the work to “deprave and corrupt” the most susceptible part of an audience, would no longer be tolerated. Henceforth a work could be obscene only if “taken as a whole” it appealed to the “prurient interest” of “the average person” (p. 489).
All of these terms were to cause enormous definitional problems in years to come, but the substitution of “taken as a whole” for the selected‐excerpts approach and the substitution of “the average person” for the most susceptible segment of an audience (usually taken to be children) were designed to, and did in fact, remove from the threat of the obscenity laws most works, even those dealing quite explicitly with sex, whose goal was to convey ideas rather than provide sexual stimulation.
Roth accordingly remains important both for having established the doctrinal foundations for the exclusion of obscenity from the coverage of the First Amendment and for providing the constitutional basis for the conclusion that the definition of obscenity must be established primarily on a First Amendment basis rather than that of the
common law.
See also
Obscenity and Pornography.
Frederick Schauer
