Roth v. United States

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Roth v. United States

The U.S. Supreme Court, in Roth v. United States and Alberts v. California, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), issued a landmark ruling on Obscenity and its relation to the First Amendment. The Court held that obscenity was not a protected form of expression and could be restricted by the states. In addition, the Court announced a test for courts to use in evaluating whether material was obscene.

The Court consolidated the appeals of Samuel Roth and David Alberts. Roth had been convicted of violating a federal statute (18 U.S.C.A. § 1461) that made it a crime to mail obscene advertising and reading materials. Alberts, a California mail-order seller, was convicted for keeping obscene books in violation of California law. Both the federal and state courts of appeal had upheld their respective convictions.

The issue before the Court was clear: Was obscenity entitled to protection under the First Amendment guarantees of Freedom of Speech and press? Until Roth, the Court had largely ignored the constitutionality of obscenity statutes, creating the assumption that obscenity was not protected speech. Consequently, obscenity convictions were routinely upheld by the lower courts.

Justice william j. brennan jr., in his majority opinion, reviewed the history of freedom of expression and concluded that not every type of utterance was protected in the thirteen original colonies. libel, blasphemy, and profanity were among the statutory crimes. In addition, that every state and the federal government had obscenity statutes showed that the First Amendment "was not intended to protect every utterance." Obscenity is denied protection because it is "utterly without redeeming social importance."

Having ruled that obscenity is not within the area of constitutionally protected speech or press, Brennan noted that sex in art and literature was not, by itself, obscene. Indeed, "sex, a great and mysterious motive force in human life" had interested "mankind through the ages; it is one of the vital problems of human interest and public concern." In the past, however, mere sexual content was enough to have a novel banned under the test courts used in assessing whether something was obscene.

For a legal definition of obscenity, U.S. courts looked to the English case of Regina v. Hicklin, L.R. 3 Q.B. 360 (1868). The Hicklin test was "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." This test permitted prosecutors and judges to select objectionable words or passages without regard for the work as a whole and without respect to any artistic, literary, or scientific value the work might have.

Brennan rejected the Hicklin test as being "unconstitutionally restrictive of the freedoms of speech and press." It was essential that the work as a whole be evaluated before being declared obscene. Brennan endorsed the test used in both Roth's and Alberts's trials: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient [lewd or lustful] interest." The new test was applicable to both state and federal government obscenity prosecutions.

The Roth test did not settle the question of what is obscenity, however. In fact, the Court was drawn into a long-term inquiry over virtually every element of the new obscenity test. The Court has never reached full agreement on what constitutes an appeal to "prurient interest." The phrase "redeeming social importance" has also failed to generate a consensus. Nor, in the years immediately following Roth, could the Court agree on whether "community" referred to the nation as a whole or to individual states or localities.

Further readings

Friedlander, Joel E. 1992. "Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan." University of Pennsylvania Law Review 140 (January).

Gaede, Donovan W. 1994. "Constitutional Law-Policing The Obscene: Modern Obscenity Doctrine Re-Evaluated." Southern Illinois University Law Journal 18 (winter).

Roberts, Simon. 1989. "The Obscenity Exception: Abusing the First Amendment." Cardozo Law Review 10 (February).

Tuchman, Claudia. 1994. "Does Privacy Have Four Walls? Salvaging Stanley v. Georgia." Columbia Law Review 94 (November).


Freedom of Speech; Freedom of the Press; Obscenity; Pornography.