Roth v. United States
From The Art and Popular Culture Encyclopedia
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Roth v. United States, along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment. See also: Samuel Roth.
As Stephen J. Gertz remarked in Sin-A-Rama:
- "Suddenly [after the 1957 Roth case], community standards regarding prurient interest were trumped by any value whatsoever. The publication of almost the entire corpus of explicit erotic literature became a reality. This was an epochal event, heralding nothing less than the democratization of reading in this country, for this kind of literature had prior been almost exclusively available to the wealthy or well-connected only, printed in small editions and generally cost-prohibitive for the average citizen."
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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 "deprave 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 a writ of certiorari 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.
Congress could ban material, "utterly without redeeming social importance," or in other words, "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest."
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.
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.
Research Resources
See also
