Roth v. United States

Justice Brennan began his opinion for the Court by noting that as far back as the colonial period, certain types of speech, including libel, blasphemy, and profanity, had been deemed unlawful. Based on his survey, Brennan initially concluded: "In light of this history, it is apparent that the unconditional phrasing 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 in a 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 community standards, 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, it did 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 or not 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 since Miller, material is judged obscene if: 1) an average person, applying community standards, finds the work's predominant theme to be prurient; 2) it depicts 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 companion case to Miller, Justice Brennan concluded that the Court was unable to come up with a truly workable definition of obscenity. Therefore, the whole attempt 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.