Roth v. United States 1957

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Roth v. United States 1957

Petitioner: Samuel Roth

Respondent: United States of America

Petitioner's Claim: That publishing and selling obscene material is protected by the First Amendment.

Chief Lawyers for Petitioner: David von G. Albrecht and O. John Rogge

Chief Lawyer for Respondent: Roger D. Fisher

Justices for the Court: William J. Brennan, Jr. (writing for the Court), Harold Burton, Tom C. Clark, Felix Frankfurter, Earl Warren, Charles Evans Whittaker

Justices Dissenting: Hugo Lafayette Black, William O. Douglas, John Marshall Harlan II

Date of Decision: June 24, 1957

Decision: Federal and state laws that prohibit the publication and sale of obscene material are constitutional.

Significance: The Supreme Court officially declared that obscenity is not protected by the freedom of speech. It also defined obscenity for future trials.

Samuel Roth ran a business in New York City. He published and sold books, magazines, and photographs that dealt with the subject of 0sex. Roth advertised his goods by mailing descriptive material to potential customers. He was convicted in federal court for violating a federal law that made it a crime to mail obscene material.

In a separate case, David S. Alberts ran a mail order business in Los Angeles, California. Alberts also sold material that dealt with the subject of sex. Alberts was convicted in a California state court of violating a state law that made it a crime to sell obscene material.

Roth and Alberts both took their cases to the U.S. Supreme Court. They said their convictions violated the freedom of speech. The First Amendment says, "Congress shall make no law . . . abridging [limiting] the freedom of speech."

Roth was convicted under federal law, which is governed by the First Amendment. Although the First Amendment only mentions the federal government, state and local governments must obey it under the Due Process Clause of the Fourteenth Amendment. This allowed Alberts to argue that his conviction under California's obscenity law violated the freedom of speech. The U.S. Supreme Court decided to review both cases to determine whether the First Amendment protects obscenity.

Obscenity declared worthless

In a 6–3 decision, the Supreme Court affirmed the convictions of both Roth and Alberts. Writing for the Court, Justice William J. Brennan, Jr., said obscenity is not protected by the freedom of speech.

Justice Brennan made that conclusion after reviewing the history of the freedom of speech in America. He noted that in 1792, after the First Amendment was adopted, fourteen states made profanity or blasphemy a crime. (Profanity or blasphemy was speech that was anti-religious.) As early as 1712, Massachusetts made it a crime to publish "filthy, obscene, or profane" material about religion. Justice Brennan determined that history showed that the First Amendment was not designed to protect every kind of speech.

Brennan decided that the First Amendment only protects speech that contains valuable ideas about science, politics, art, religion, and other things that make up American society. The freedom of speech was not designed to protect worthless speech. Justice Brennan said obscenity is worthless because it does not make a valuable contribution to the flow of ideas in America. Therefore, obscenity is not protected by the freedom of speech.

The most important part of the Court's decision, however, was its definition of obscenity. Brennan said material dealing with sex is not automatically obscene. Sex in art, literature, and scientific works can be valuable to society. Brennan defined obscenity as material that deals with sex in a manner that is offensive to the average person. In an obscenity trial, the jury's duty would be to decide if the material would offend the average person in the jury's community.

What about art?

Justice William O. Douglas filed a dissenting opinion, meaning he disagreed with the Court's decision. Justice Douglas had two main concerns. First, the federal and California laws at issue made it illegal to sell or mail material that caused people to have sexual thoughts. Justice Douglas said the First Amendment was designed to allow people to speak or publish anything unless it caused harmful action. For Justice Douglas, punishing speech that causes bad thoughts but not bad action is a serious violation of the freedom of speech.

Second, Justice Douglas was afraid to allow juries to decide obscenity cases based on what would offend the average person. He said, "[t]he list of books that judges or juries can place in that category is endless." Justice Douglas feared that the Court's decision would allow communities to ban valuable works of art, literature, and science.

Obscenity changes

Over the years the Court listened to Justice Douglas's concerns and revised the definition of obscenity. In Miller v. California (1973), the Court said material is obscene if it: (1) appeals to abnormal sexual desire; (2) depicts sex offensively; and (3) lacks literary, artistic, political, or scientific value.


R obert Mapplethorpe was an American photographer. He was popular for his photographs of flowers, celebrities, and nude men. Mapplethorpe died in March 1989 while an exhibition of his photographs was touring the country. Called "The Perfect Moment," the exhibition contained shocking photographs of nude men. People in the art world said Mapplethorpe was a "brilliant artist." Opponents thought his photographs of nude men were offensive and disgusting.

In June 1990, the Contemporary Arts Center ("CAC") in Cincinnati, Ohio, displayed "The Perfect Moment" exhibition. Afterwards it became the first art gallery in America to face obscenity charges in court. In October 1990, a jury found the gallery not guilty of violating obscenity laws. Although the jury decided that Mapplethorpe's photographs were sexually offensive, it could not say they had no artistic value. The case showed the fine line between worthless obscenity and valuable art.

At this point Justice Brennan, who wrote the decision in Roth, decided that it was impossible for the justices to agree on a definition of obscenity. Without a definition, it is impossible for people to know what the obscenity laws prohibit and what they allow. For this reason, Justice Brennan concluded that obscenity laws are unconstitutional because they are too vague. The Supreme Court, however, still says obscenity is not protected by the freedom of speech, and it still uses the Miller test to determine what is obscene.

Suggestions for further reading

Evans, J. Edward. Freedom of Speech. Minneapolis: Lerner Publications, Inc., 1990.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Morrisroe, Patricia. Mapplethorpe: A Biography. New York: Random House, Inc., 1995.

Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.

Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.

Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.