Roth v. United States

Prior History

Under the common law rule that prevailed before Roth, articulated most famously in the 1868 English case Hicklin v. Regina, any material that tended to "deprive and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. Thus, works by Balzac, Flaubert, James Joyce, and D.H. Lawrence were banned based on isolated passages and the effect they might have on children.

Samuel Roth, who ran a literary business in New York, was convicted under a federal statute criminalizing the sending of "obscene, lewd, lascivious, or filthy" materials through the mail for advertising and selling a publication called American Aphrodite, ("A Quarterly for the Fancy-Free") containing literary erotica and nude photography. David Alberts, who ran a mail-order business from Los Angeles, was convicted under a California statute for publishing pictures of "nude and scantily-clad women." The Court granted cert and affirmed both convictions.

The Case

Roth came down as a 6-3 decision, with the opinion of the Court authored by William J. Brennan, Jr. The Court repudiated the Hicklin test and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." Only material meeting this test could be banned as "obscene." However, Roth reaffirmed that obscenity was not protected by the First Amendment, and thus upheld the convictions of Roth and Alberts for sending obscene material over the mails.

Chief Justice Earl Warren, worried that "broad language used here may eventually be applied to the arts and sciences and freedom of communication generally," but agreeing that obscenity is not constitutionally protected, concurred only in the judgment.

Justices Hugo Black and William O. Douglas, First Amendment "literalists," dissented in Roth, arguing vigorously that the First Amendment protected obscene material.

Justice John Marshall Harlan II dissented in Roth, involving a federal statute, but concurred in Alberts, involving a state law, on the grounds that while states had broad power to prosecute obscenity, the federal government did not.

Effects of the Decision

The Warren Court's obscenity jurisprudence became one of its most controversial aspects in the following years. In subsequent cases the Court encountered tremendous difficulty in applying the Roth test, which did not define what it meant by "community standards." For example, in the 1964 case Jacobellis v. Ohio, involving whether Ohio could ban the showing of a French film called "Les Amants" ("The Lovers"), the Court ruled that the film was protected by the First Amendment, but could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions. In his concurring opinion in Jacobellis, Justice Potter Stewart, holding that Roth protected all obscenity except "hard-core pornography," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of the Court further redefined the Roth test by holding unprotected only that which is "patently offensive" and "utterly without redeeming social value," but no opinion in that case could command a majority of the Court either, and the state of the law in the obscenity field remained confused.

With the Court unable to agree as to what constituted obscenity, the Justices were put in the position of having to personally review almost every obscenity prosecution in the United States, with the Justices gathering for weekly screenings of "obscene" motion pictures (Black and Douglas pointedly refused to participate, believing all the material protected). Meanwhile, pornography and sexually-oriented publications proliferated as a result of the Warren Court's holdings, the "Sexual Revolution" of the 1960s flowered, and pressure increasingly came to the Court to allow leeway for state and local governments to crack down on obscenity. During his ill-fated bid to become Chief Justice, Justice Abe Fortas was attacked vigorously in Congress by conservatives such as Strom Thurmond for siding with the Warren Court majority in liberalizing protection for pornography. In his 1968 presidential campaign, Richard Nixon campaigned against the Warren Court, pledging to appoint "strict constructionists" to the Supreme Court.

The Demise of Roth

In Miller v. California (1973), a five-person majority agreed for the first time since Roth as to a test for determining constitutionally unprotected obscenity, superseding the Roth test. By the time Miller was considered in 1973, Brennan had abandoned the Roth test and argued that all obscenity was constitutionally protected, unless distributed to minors or unwilling third-parties.

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