ROTH v. UNITED STATES 354 U.S. 476 (1957) ALBERTS v. CALIFORNIA 354 U.S. 476 (1957)

Until Roth and Alberts, argued and decided on the same days, the Supreme Court had assumed that the first amendment did not protect obscenity. Squarely confronted with the issue by appeals from convictions under the federal obscenity statute (in Roth) and a California law outlawing the sale and advertising of obscene books (in Alberts), the Court held that obscenity was not constitutionally protected speech.

Justice william j. brennan, for the majority, relied on historical evidence that the Framers of the First Amendment had not intended to protect all speech, but only speech with some redeeming social value. Thus, the First Amendment protected even hateful ideas that contributed toward the unfettered exchange of information that might result in desired political and social change. Obscenity, however, was utterly without redeeming social importance, and was not constitutionally protected.

Neither statute before the Court defined obscenity; nor did the Court examine the materials to determine whether they were obscene. The Court nevertheless rejected the appellants' due process objections on the grounds that the statutes had given sufficient warning as to the proscribed conduct and the trial courts had applied the proper standard for judging obscenity.

The Court rejected the widely used test based on Queen v. Hicklin (1868) which judged a work's obscenity by the effect of an isolated excerpt upon particularly susceptible persons. The proper standard was "whether to the average person, applying contemporary community standards, the dominant theme taken as a whole appeals to prurient interest," that is, has a tendency to excite lustful thoughts. Because the obscenity of the materials involved in Roth was not at issue, the Court escaped the task of applying its definition. Ironically, the definition of obscenity was to preoccupy the Court for the next sixteen years. The Court, having designated a category of speech that could be criminally proscribed, now confronted the critical task of delineating that category.

Chief Justice earl warren and Justice john marshall harlan, separately concurring, sought to limit the scope of the majority opinion. Warren, concurring in the result, agreed that the defendants' conduct in commercially exploiting material for its appeal to prurient interest was constitutionally punishable. Harlan, concurring in Alberts and dissenting in Roth, believed the Court was required to examine each work individually to determine its obscene character, and argued that the Constitution restricted the federal government in this field more severely than it restricted the states. Justices william o. douglas and hugo l. black, dissenting in both cases, enunciated the positions they were to take in the wave of obscenity cases soon to overwhelm the Court: obscenity, like every other form of speech, is absolutely protected by the First Amendment.

Kim McLane Wardlaw
(1986)