Roth v. United States
354 U.S. 476 (1957)
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Rule of Law:
Obscenity is not a form of expression protected by the First Amendment's guarantees of freedom of speech and press. Therefore, federal and state statutes proscribing the sale or mailing of obscene materials are constitutional.
Facts:
- Samuel Roth operated a business in New York City that published and sold books, photographs, and magazines.
- Roth utilized mail services to send circulars and advertisements to solicit sales for his materials.
- David Alberts ran a mail-order business from Los Angeles, California.
- Alberts kept for sale and advertised books that the state considered obscene and indecent.
Procedural Posture:
- In Roth, a jury in the U.S. District Court for the Southern District of New York convicted Samuel Roth of mailing obscene materials in violation of a federal statute.
- The U.S. Court of Appeals for the Second Circuit affirmed Roth's conviction.
- In Alberts, a judge in the Municipal Court of Beverly Hills convicted David Alberts of keeping for sale and advertising obscene books in violation of the California Penal Code.
- The Appellate Department of the Superior Court of California, the highest state court available for appeal, affirmed Alberts' conviction.
- The U.S. Supreme Court granted certiorari in Roth and noted probable jurisdiction in Alberts, consolidating the cases for review.
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Issue:
Does the application of federal and state statutes prohibiting the mailing, sale, and advertising of obscene materials violate the freedom of speech and press guaranteed by the First and Fourteenth Amendments?
Opinions:
Majority - Justice Brennan
No, these statutes do not violate the freedom of speech and press. Obscenity is not within the area of constitutionally protected speech or press. The First Amendment's protection was fashioned to assure the unfettered interchange of ideas, but obscenity is 'utterly without redeeming social importance.' While the portrayal of sex in art, literature, and science is protected, obscene material is distinct because it deals with sex in a manner appealing to prurient interest. The proper standard to identify unprotected obscenity is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. This standard safeguards protected expression while allowing for the regulation of true obscenity.
Concurring - Chief Justice Warren
No, the convictions should be upheld. The focus of the inquiry should be on the defendant's conduct, not the abstract character of the material. Roth and Alberts were engaged in the commercial exploitation of obscene material, purveying it to appeal to the erotic interests of their customers. This conduct of pandering is what the State and Federal Governments can constitutionally punish. The case is not about judging the obscenity of a particular book in isolation but about prosecuting individuals for their business of pandering.
Concurring-in-part-and-dissenting-in-part - Justice Harlan
In the state case (Alberts), No, the statute does not violate the Fourteenth Amendment. In the federal case (Roth), Yes, the statute as applied violates the First Amendment. States possess broad authority under their police powers to regulate public morality, and California's law is a rational exercise of that power. However, the federal government's power is more limited and incidental to its enumerated powers, such as the postal power. A national ban on materials that merely 'tend to stir sexual impulses and lead to sexually impure thoughts' creates a dangerous, deadening uniformity and unconstitutionally infringes on free expression and the authority of states to set their own moral standards.
Dissenting - Justice Douglas
Yes, these statutes violate the First Amendment. The standards applied by the lower courts and endorsed by the majority punish individuals for the thoughts their material might provoke, rather than for any antisocial conduct. This censorship is based on a vague 'community standards' test that is too capricious and destructive of literary freedom. The First Amendment's prohibition is absolute, and courts should not weigh the 'social importance' of expression; all forms of expression, even those that offend the community's moral code, are protected from government suppression.
Analysis:
This landmark decision was the first time the Supreme Court squarely addressed the constitutionality of obscenity laws and held that obscenity is an unprotected category of speech. The 'Roth test' it established shifted the legal standard away from the Victorian-era Hicklin test, which focused on the effect on the most susceptible person, to a more modern standard based on the 'average person' and 'contemporary community standards.' This ruling set the foundation for decades of First Amendment jurisprudence attempting to define obscenity, culminating in the modified three-prong test established in Miller v. California (1973). The case created a significant exception to First Amendment protection and affirmed the government's power to regulate public morality through obscenity laws.
