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

ROTH V. UNITED STATES

The U.S. Supreme Court, in Roth v. United States and Alberts v. California, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), issued a landmark ruling on obscenity and its relation to the first amendment. The Court held that obscenity was not a protected form of expression and could be restricted by the states. In addition, the Court announced a test for courts to use in evaluating whether material was obscene.

The Court consolidated the appeals of Samuel Roth and David Alberts. Roth had been convicted of violating a federal statute (18 U.S.C.A. § 1461) that made it a crime to mail obscene advertising and reading materials. Alberts, a California mail-order seller, was convicted for keeping obscene books in violation of California law. Both the federal and state courts of appeal had upheld their respective convictions.

The issue before the Court was clear: Was obscenity entitled to protection under the First Amendment guarantees of freedom of speech and press? Until Roth, the Court had largely ignored the constitutionality of obscenity statutes, creating the assumption that obscenity was not protected speech. Consequently, obscenity convictions were routinely upheld by the lower courts.

Justice william j. brennan jr., in his majority opinion, reviewed the history of freedom of expression and concluded that not every type of utterance was protected in the thirteen original colonies. libel, blasphemy, and profanity were among the statutory crimes. In addition, that every state and the federal government had obscenity statutes showed that the First Amendment "was not intended to protect every utterance." Obscenity is denied protection because it is "utterly without redeeming social importance."

Having ruled that obscenity is not within the area of constitutionally protected speech or press, Brennan noted that sex in art and literature was not, by itself, obscene. Indeed, "sex, a great and mysterious motive force in human life" had interested "mankind through the ages; it is one of the vital problems of human interest and public concern." In the past, however, mere sexual content was enough to have a novel banned under the test courts used in assessing whether something was obscene.

For a legal definition of obscenity, U.S. courts looked to the English case of Regina v. Hicklin, L.R. 3 Q.B. 360 (1868). The Hicklin test was "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." This test permitted prosecutors and judges to select objectionable words or passages without regard for the work as a whole and without respect to any artistic, literary, or scientific value the work might have.

Brennan rejected the Hicklin test as being "unconstitutionally restrictive of the freedoms of speech and press." It was essential that the work as a whole be evaluated before being declared obscene. Brennan endorsed the test used in both Roth's and Alberts's trials: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient [lewd or lustful] interest." The new test was applicable to both state and federal government obscenity prosecutions.

The Roth test did not settle the question of what is obscenity, however. In fact, the Court was drawn into a long-term inquiry over virtually every element of the new obscenity test. The Court has never reached full agreement on what constitutes an appeal to "prurient interest." The phrase "redeeming social importance" has also failed to generate a consensus. Nor, in the years immediately following Roth, could the Court agree on whether "community" referred to the nation as a whole or to individual states or localities.

further readings

Friedlander, Joel E. 1992. "Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan." University of Pennsylvania Law Review 140 (January).

Gaede, Donovan W. 1994. "Constitutional Law-Policing The Obscene: Modern Obscenity Doctrine Re-Evaluated." Southern Illinois University Law Journal 18 (winter).

Roberts, Simon. 1989. "The Obscenity Exception: Abusing the First Amendment." Cardozo Law Review 10 (February).

Tuchman, Claudia. 1994. "Does Privacy Have Four Walls? Salvaging Stanley v. Georgia." Columbia Law Review 94 (November).

cross-references

Freedom of Speech; Freedom of the Press; Obscenity; Pornography.

Roth v. United States case decided in 1957 by the U.S. Supreme Court. Samuel Roth of New York City was convicted of mailing obscene materials. On appeal his conviction was affirmed by the Supreme Court, which held that obscenity was not protected by the First Amendment to the U.S. Constitution. The court ruled that material is obscene if, to the average person applying contemporary community standards, the dominant overall theme appeals to prurient interest. In later decisions in 1973 and 1974 the Court held that community standards need not be national; a state can establish its own standards if it defines them explicitly.