Caseflicks

Supreme Court of the United States • 1957

Roth v. United States

354 U.S. 476 | 77 S. Ct. 1304 | 1 L. Ed. 2d 1498 | 1957 U.S. LEXIS 587 | 14 Ohio Op. 2d 331

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Takeaway

In short, this case held that obscenity is categorically unprotected and adopted the average-person, contemporary-community-standards, whole-work, prurient-interest test, while sustaining both federal and state obscenity laws against vagueness and federalism challenges.

Background

Samuel Roth operated a New York business that published and sold books, photographs, and magazines through the mail. A federal jury convicted him on four counts of mailing obscene circulars, advertisements, and a book in violation of 18 U.S.C. § 1461. The Court of Appeals for the Second Circuit affirmed, and the Supreme Court granted certiorari.

The Court decided Roth together with Alberts v. California. Alberts, who operated a Los Angeles mail-order business, was convicted under California law for keeping obscene books for sale and publishing obscene advertisements. The California appellate court affirmed his conviction. The two cases presented overlapping First Amendment, due process, and federalism questions about obscenity regulation.

Issues

Issue #1

Whether obscenity is protected speech or press under the First Amendment, or under the Fourteenth Amendment as applied to the States.

Holding

No. Obscenity is not within the constitutionally protected area of speech or press.

Reasoning

The Court began with the purpose of the speech and press guarantees: securing the free exchange of ideas needed for political and social change. Ideas with even slight redeeming social importance—including unpopular and offensive ideas—receive constitutional protection unless they encroach on more important interests. But the Court concluded that obscenity, unlike the communication of ideas, was historically treated as wholly lacking redeeming social importance.

History supported that conclusion. At the founding, constitutional protections for expression coexisted with laws punishing libel, blasphemy, profanity, and obscene publications. The Court also pointed to the longstanding and widespread legislative judgment against obscenity in federal law, state law, and international agreements. In the Court's view, that history showed that the First Amendment's broad language was not understood to protect every utterance.

Because obscenity falls outside protected expression, the government need not prove that an obscene publication creates a clear and present danger of unlawful conduct. The Court analogized to libel: once a category of expression is outside First Amendment protection, the clear-and-present-danger inquiry does not govern its punishment.

Issue #2

What constitutional standard distinguishes unprotected obscenity from protected material that discusses or depicts sex.

Holding

Material may be deemed obscene only if, viewed as a whole by the average person under contemporary community standards, its dominant theme appeals to prurient interest.

Reasoning

The Court stressed that sex and obscenity are not the same. Sexual themes in art, literature, science, or public discussion are not excluded from constitutional protection merely because they concern sex. A work is obscene only when it treats sex in a manner that appeals to prurient, or lustful and morbid, interest.

The Court rejected the Hicklin test, which allowed a work to be condemned based on isolated passages and their possible effect on especially susceptible persons. That approach was constitutionally too restrictive because it could suppress serious works containing sexual material.

The replacement standard required assessment of the material as a whole, its effect on the average person rather than unusually sensitive readers, and contemporary community standards. The Court concluded that the trial courts had sufficiently applied that standard: Roth's jury was told to consider the publications in their full context and their impact on the community as a whole, while the Alberts trial judge evaluated the materials as a whole and in relation to the normal person.

Issue #3

Whether the federal and California obscenity statutes were unconstitutionally vague in violation of due process.

Holding

No. Applied through the Court's obscenity standard, the statutes gave constitutionally adequate notice of prohibited conduct.

Reasoning

Roth argued that terms such as "obscene," "lewd," "lascivious," "filthy," and "indecent" were too imprecise to define a crime. The Court acknowledged that such terms lack mathematical precision and may generate difficult marginal cases.

Due process, however, does not demand impossible precision. It requires language that gives sufficiently definite warning when measured against common understanding and practice, and that furnishes workable boundaries for judges and juries. The Court held that the statutory terms, applied through the average-person, contemporary-community-standards, whole-work, prurient-interest test, met that requirement.

Issue #4

Whether Congress lacked constitutional authority to prohibit mailing obscene matter because regulation of morality was reserved to the States and the people.

Holding

No. The federal statute was a valid exercise of Congress's postal power.

Reasoning

Roth's Ninth and Tenth Amendment argument depended on the premise that obscene materials were protected expression that Congress could not regulate. Once the Court held that obscenity was outside First Amendment protection, that premise failed.

Congress's power to establish post offices and post roads includes authority to regulate what may be carried through the mails. The statute's prohibition on knowingly mailing obscene matter was therefore a permissible use of the postal power.

Issue #5

Whether the federal mail-obscenity statute preempted California from punishing the keeping for sale and advertising of obscene material.

Holding

No. The federal statute did not preempt California's statute.

Reasoning

The federal law addressed the actual use of the mails to transmit obscene matter. California's law reached additional conduct, including keeping obscene material for sale and publishing advertisements for it.

The state law neither directly interfered with postal operations nor imposed a direct and immediate burden on federal postal functions. Accordingly, Congress's federal mailing prohibition did not displace California's authority to regulate the separate conduct covered by its statute.

Concurrences

Chief Justice Warren

Reasoning

Chief Justice Warren agreed that the convictions should stand, but would have decided less. He cautioned that broad statements about obscenity could later be extended to art, science, and communication generally. He would limit the decision to the statutes as applied to these defendants and the particular conduct before the Court.

For Warren, the cases involved people engaged in the knowing commercial exploitation of a prurient market, not simply the abstract question whether a book or picture may be condemned. Scienter mattered: the defendants knowingly advertised and distributed materials calculated to appeal to erotic interests. Government could punish that commercial conduct without announcing an expansive rule for all sexual expression.

Warren emphasized the history of mistaken obscenity prosecutions against valuable literature, scientific works, art, and socially controversial writing. Because the line between pornography and protected expression is unstable, he resisted any formulation that might authorize wider censorship than the facts required.

Dissents

Justice Harlan

Reasoning

Justice Harlan concurred in the judgment affirming Alberts's California conviction but dissented from the judgment affirming Roth's federal conviction. He believed the Court treated "obscenity" as a self-defining category and improperly left the constitutional character of a work to a jury's label. In his view, appellate courts must independently examine the particular material and decide whether its suppression satisfies constitutional standards.

Harlan also objected that the Court collapsed materially different standards into one formula. California required a tendency to deprave or corrupt readers, whereas the federal jury instruction allowed conviction for material tending to stir sexual impulses or sexually impure thoughts. The Court's preferred prurient-interest definition did not simply duplicate either of those standards, especially the broader federal formulation.

Harlan would afford States wider latitude under the Fourteenth Amendment to make contested moral judgments about pornography. After independently reviewing the material in Alberts, he could not say that California's suppression of it so impaired the communication of ideas as to violate due process.

But Congress had only an incidental postal interest, not a general substantive power over sexual morality. Harlan feared that federal enforcement would impose a uniform nationwide censorship rule and eliminate the room for different state judgments. Because Roth's federal instruction criminalized books that induced sexual thoughts—a category that could include much serious literature—he would reverse Roth's conviction and dismiss the indictment.

Justice Douglas

Reasoning

Justice Douglas, joined by Justice Black, rejected the premise that government may punish publications because they arouse sexual thoughts, desires, disgust, or offense to community morality. Those standards regulate the reader's thoughts rather than unlawful conduct, and they give judges and juries sweeping power to suppress expression they dislike.

In Douglas's view, the First Amendment requires a meaningful connection between speech and conduct that government may lawfully regulate. He found no adequate evidence that sexual literature materially causes unlawful or antisocial behavior, and he regarded the asserted causal relationship as too uncertain to justify censorship.

Douglas also rejected the Court's classification of obscenity as expression wholly outside First Amendment protection. The Amendment's absolute wording, he argued, prevents courts from balancing literature's value against a judicial conclusion that it has no redeeming social importance. Even low-value or offensive sexual expression remains protected unless it is inseparably connected with illegal action.

A community-conscience or prurient-interest standard, Douglas warned, permits majoritarian censorship and endangers serious literature as well as cheap pornography. He would leave readers free to reject noxious publications and would reverse both convictions.