Roth v. United States

• Author: Jeffrey Lehman, Shirelle Phelps

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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

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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...