Appellant
Samuel Roth
Appellee
United States
Appellant's Claim
That publication of "obscene" material is protected by the First Amendment.
Chief Lawyers for Appellant
David von G. Albrecht and O. John Rogge
Chief Lawyer for Appellee
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
Place
Washington, D.C.
Date of Decision
24 June 1957
Decision
The Supreme Court upheld both state and federal laws punishing the sale and distribution of publications of material judged to be obscene or indecent.
Significance
In Roth, the Supreme Court for the first time defined obscenity, whichit described in terms of the First Amendment.
Samuel Roth ran a business in New York City that published and sold books, magazines, and photographs. He advertised his wares in circulars and other advertisements which he mailed to potential customers. He was convicted in federal district court of mailing obscene material in violation of a federal obscenity statute. After the circuit court upheld his conviction, Roth took his case to the U.S. Supreme Court.
In another case decided with Roth, David S. Alberts, who ran a mail order business in Los Angeles, was convicted in state court of selling obsceneand indecent books and publishing an obscene advertisement of them. A California appellate court upheld his conviction for having violated a state obscenity law. Like Roth, Alberts appealed to the U.S. Supreme Court.
Both men questioned the constitutionality of obscenity laws which they said conflicted with First Amendment guarantees of free speech and a free press. The United States had, since the early nineteenth century, had criminal obscenity laws on the books. Because no question had been raised about a potential conflict between these laws and the first component of the Bill of Rights, they were regularly enforced. As a consequence, works of obvious literary meritalleged to be obscene, such as Theodore Dreiser's 1925 novel An American Tragedy, had no constitutional protection. In Roth the Court was obliged to confront the question of whether or not obscenity was actually protected by the First Amendment.
Supreme Court Defines Obscenity
Justice Brennan began his opinion for the Court by noting that as far back asthe colonial period, certain types of speech, including libel, blasphemy, and profanity, had been deemed unlawful. Based on his survey, Brennan initiallyconcluded: "In light of this history, it is apparent that the unconditionalphrasing of the First Amendment was not intended to protect every utterance."Obscenity, Brennan declared, is like other types of unprotected speech in that it is "utterly without social importance." But what exactly is obscenity?For the first time Brennan struggled to define it:
Using Brennan's new standard, the laws, both federal and state, used to convict Roth and Alberts were upheld, as were the men's convictions. The test introduced in Roth proved to be highly controversial. On the one hand, itdid away with the practice of prosecuting obscenity by using selected excerpts for a work that selective members of society found offensive. After Roth, unprotected obscenity could only be judged by the "average person" considering the work "taken as a whole." On the other hand, Brennan's test did not require a showing that any particular harm had been done. Other types of unprotected speech, such as libel, can be barred only after such proofs have been made in court.
Part of the problem with the Roth test for obscenity was that its focus remained undefined. In Memoirs v. Massachusetts (the 1966 Fanny Hill case), Brennan revised his test. The standard then became whether ornot the material being judged was "patently offensive" and had even minimal social value. This standard was deemed too lax, and in Miller v. California (1973), the Court once again revised its test for obscenity. Ever sinceMiller, material is judged obscene if: 1) an average person, applyingcommunity standards, finds the work's predominant theme to be prurient; 2) itdepicts sexual conduct in a plainly offensive way; and 3) taken as a whole,it lacks serious literary artistic, political, or scientific value.
In Paris Adult Theatre v. Slaton District Attorney (1973), a companioncase to Miller, Justice Brennan concluded that the Court was unable to come up with a truly workable definition of obscenity. Therefore, the wholeattempt to regulate obscenity was for him unconstitutionally vague. Additionally, feminists have criticized the Court's attempts to define obscenity because these efforts fail to account for the violent treatment of women and children that is a common feature of pornography. Nonetheless, Miller remains the law, and obscenity remains outside the protection of the First Amendment.
Related Cases
Samuel Roth
Appellee
United States
Appellant's Claim
That publication of "obscene" material is protected by the First Amendment.
Chief Lawyers for Appellant
David von G. Albrecht and O. John Rogge
Chief Lawyer for Appellee
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
Place
Washington, D.C.
Date of Decision
24 June 1957
Decision
The Supreme Court upheld both state and federal laws punishing the sale and distribution of publications of material judged to be obscene or indecent.
Significance
In Roth, the Supreme Court for the first time defined obscenity, whichit described in terms of the First Amendment.
Samuel Roth ran a business in New York City that published and sold books, magazines, and photographs. He advertised his wares in circulars and other advertisements which he mailed to potential customers. He was convicted in federal district court of mailing obscene material in violation of a federal obscenity statute. After the circuit court upheld his conviction, Roth took his case to the U.S. Supreme Court.
In another case decided with Roth, David S. Alberts, who ran a mail order business in Los Angeles, was convicted in state court of selling obsceneand indecent books and publishing an obscene advertisement of them. A California appellate court upheld his conviction for having violated a state obscenity law. Like Roth, Alberts appealed to the U.S. Supreme Court.
Both men questioned the constitutionality of obscenity laws which they said conflicted with First Amendment guarantees of free speech and a free press. The United States had, since the early nineteenth century, had criminal obscenity laws on the books. Because no question had been raised about a potential conflict between these laws and the first component of the Bill of Rights, they were regularly enforced. As a consequence, works of obvious literary meritalleged to be obscene, such as Theodore Dreiser's 1925 novel An American Tragedy, had no constitutional protection. In Roth the Court was obliged to confront the question of whether or not obscenity was actually protected by the First Amendment.
Supreme Court Defines Obscenity
Justice Brennan began his opinion for the Court by noting that as far back asthe colonial period, certain types of speech, including libel, blasphemy, and profanity, had been deemed unlawful. Based on his survey, Brennan initiallyconcluded: "In light of this history, it is apparent that the unconditionalphrasing of the First Amendment was not intended to protect every utterance."Obscenity, Brennan declared, is like other types of unprotected speech in that it is "utterly without social importance." But what exactly is obscenity?For the first time Brennan struggled to define it:
[S]ex and obscenity are not synonymous. Obscene material is material which deals with sex ina manner appealing to prurient interest. The portrayal of sex, e.g., in art,literature, and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press . . . [Something is obscene if] to the average person, applying contemporary communitystandards, the dominant theme of the material taken as a whole appeals to the prurient interest.
Using Brennan's new standard, the laws, both federal and state, used to convict Roth and Alberts were upheld, as were the men's convictions. The test introduced in Roth proved to be highly controversial. On the one hand, itdid away with the practice of prosecuting obscenity by using selected excerpts for a work that selective members of society found offensive. After Roth, unprotected obscenity could only be judged by the "average person" considering the work "taken as a whole." On the other hand, Brennan's test did not require a showing that any particular harm had been done. Other types of unprotected speech, such as libel, can be barred only after such proofs have been made in court.
Part of the problem with the Roth test for obscenity was that its focus remained undefined. In Memoirs v. Massachusetts (the 1966 Fanny Hill case), Brennan revised his test. The standard then became whether ornot the material being judged was "patently offensive" and had even minimal social value. This standard was deemed too lax, and in Miller v. California (1973), the Court once again revised its test for obscenity. Ever sinceMiller, material is judged obscene if: 1) an average person, applyingcommunity standards, finds the work's predominant theme to be prurient; 2) itdepicts sexual conduct in a plainly offensive way; and 3) taken as a whole,it lacks serious literary artistic, political, or scientific value.
In Paris Adult Theatre v. Slaton District Attorney (1973), a companioncase to Miller, Justice Brennan concluded that the Court was unable to come up with a truly workable definition of obscenity. Therefore, the wholeattempt to regulate obscenity was for him unconstitutionally vague. Additionally, feminists have criticized the Court's attempts to define obscenity because these efforts fail to account for the violent treatment of women and children that is a common feature of pornography. Nonetheless, Miller remains the law, and obscenity remains outside the protection of the First Amendment.
Related Cases
- Near v. Minnesota, 283 U.S. 697 (1931).
- Memoirs v. Massachusetts 383 U.S. 413 (1966).
- Miller v. California, 413 U.S. 15 (1973).
- Paris Adult Theater v. Slaton District Attorney, 413 U.S. 49 (1973).
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