Roth v. U.S Primary Source eText

Primary Source

J. Lee Rankin was the Solicitor General who represented the U.S. in Roth v. U.S. AP/WIDE WORLD PHOTOS. REPRODUCED BY PERMISSION J. Lee Rankin was the Solicitor General who represented the U.S. in Roth v. U.S. AP/WIDE WORLD PHOTOS. REPRODUCED BY PERMISSION Published by Gale Cengage AP/WIDE WORLD PHOTOS. REPRODUCED BY PERMISSION

Supreme Court decision

By: William J. Brennan Jr., William O. Douglas

Date: June 24, 1957

Source: Brennan, Jr., William J. and William O. Douglas. Roth v. United States 354 U.S. 476 (1957). Available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&v... ; website home page: http://www.findlaw.com (accessed March 5, 2003).

About the Authors: William J. Brennan Jr. (1906–1997) graduated from Harvard Law School and practiced labor law before service in World War II (1939–1945), where he became a colonel. He was appointed to New Jersey's highest court in 1952 and to the Supreme Court in 1957. Brennan was a strong defender of civil rights, equal representation, prisoners' rights, and free speech and was an opponent of the death penalty. William O. Douglas (1898–1980) chaired the Securities and Exchange Commission in 1939, when he became, at forty, one of the youngest men ever appointed to the Supreme Court. He served over thirty-six years, the longest of any justice, retiring in 1975. Many thought Douglas would be pro-business, but he devoted himself to the defense of the Bill of Rights and freedom of speech.

Introduction

In the early history of the United States, legislation against and control of obscene materials was always undertaken at the local and state level. The federal government first became involved in policing obscenity with the 1873 Comstock Act, which prohibited "obscene" materials from being transmitted via interstate mail. The Comstock Act was enforced against the distributors of birth control information, as well as a number of different books and magazines. In 1925, the Supreme Court stated, in passing, that the First Amendment freedoms of speech and press applied against the states because of the Fourteenth Amendment, which states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The question then became whether or not obscenity was protected by the First Amendment. In 1942, in Chaplinsky v. New Hampshire, the court held that obscenity was not protected under the First Amendment. The important remaining question was: what is obscenity?

Samuel Roth was convicted in 1956 of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. He appealed to the Supreme Court, claiming that the federal statute under which he had been convicted, which was based on the original Comstock Act, was unconstitutional. The two central issues before the Court in this case were (1) whether obscenity was protected by the First Amendment; and, (2) what constituted obscenity.

Significance

Roth v. U.S. represented the first time the Supreme Court had the opportunity to define obscenity. The Court defined it as material lacking "redeeming social importance," which, when considered as a whole, using "contemporary social standards," appeals to a "prurient interest." (Prurient is probably best defined as appealing to deviant sexual interest). This definition was used by the Court until 1962, when the Court under Chief Justice Earl Warren struck down a conviction for obscenity, adding the requirement that obscene materials had to be typified by "patent offensiveness and indecency." Two years later the Court commented that obscene materials had to be "'utterly' without social importance." The Supreme Court under Chief Justice Earl Warren reversed several other convictions for obscenity as well. The difficulty of determining obscenity was noted by Justice Byron White, who said that he could not define obscenity, but "I know it when I see it." That obviously does not create an easy definition.

The Court under Chief Justice Warren Burger, which followed the Warren Court, in Miller v. California (1973) upheld a conviction for obscenity and issued a new, looser standard for obscenity. Obscene materials had to, under local community standards, invite a "prurient interest," not have "serious artistic, political or scientific value," and depict sexual items in a "patently offensive way." Courts since have generally upheld the Miller standard but have not universally upheld the convictions. A twenty-first century complication with the issue of obscenity and pornography is the Internet, where what may be obscene in the recipient's community may not be obscene in the sender's community. This makes the idea of judging obscenity by "local community standards" highly problematic. The Supreme Court struck down, in Reno v. ACLU (1997), an attempt to regulate the Internet, holding that the Communications Decency Act was overly broad, overly vague, and did not meet the Miller standards for obscenity.

Primary Source: Roth v. U.S. [excerpt]

SYNOPSIS: Justice William J. Brennan Jr. first examines obscenity, ruling that it is not protected by the First Amendment. The majority opinion of the Court upholds Roth's conviction, saying that the proper standards were used in determining what constituted obscenity. Justice William O. Douglas dissents, joined by Justice Hugo L. Black, stating that the obscenity test is too broad and that the conviction violates Roth's right to freedom of speech and press.

Mr. Justice Brennan delivered the opinion of the Court.…

The dispositive question is whether obscenity is utterance within the area of protected speech and press. Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press.…

The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.…

All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.…

We hold that obscenity is not within the area of constitutionally protected speech or press.…

Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.

Both trial courts below sufficiently followed the proper standard. Both courts used the proper definition of obscenity.…

The judgments are

Affirmed.…

Mr. Justice Douglas, with whom Mr. Justice Black concurs, dissenting.

When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. I do not think we can approve that standard and be

faithful to the command of the First Amendment, which by its terms is a restraint on Congress and which by the Fourteenth is a restraint on the States.…

The tests by which these convictions were obtained require only the arousing of sexual thoughts. Yet the arousing of sexual thoughts and desires happens every day in normal life in dozens of ways. Nearly 30 years ago a questionnaire sent to college and normal school women graduates asked what things were most stimulating sexually. Of 409 replies, 9 said "music"; 18 said "pictures"; 29 said "dancing"; 40 said "drama"; 95 said "books"; and 218 said "man." …

The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail the First Amendment. As recently stated by two of our outstanding authorities on obscenity, "The danger of influencing a change in the current moral standards of the community, or of shocking or offending readers, or of stimulating sex thoughts or desires apart from objective conduct, can never justify the losses to society that result from interference with literary freedom." …

If we were certain that impurity of sexual thoughts impelled to action, we would be on less dangerous ground in punishing the distributors of this sex literature. But it is by no means clear that obscene literature, as so defined, is a significant factor in influencing substantial deviations from the community standards.…

The absence of dependable information on the effect of obscene literature on human conduct should make us wary. It should put us on the side of protecting society's interest in literature, except and unless it can be said that the particular publication has an impact on action that the government can control.…

I assume there is nothing in the Constitution which forbids Congress from using its power over the mails to proscribe conduct on the grounds of good morals. No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct.…

Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor.…

I reject too the implication that problems of freedom of speech and of the press are to be resolved by weighing against the values of free expression, the judgment of the Court that a particular form of that expression has "no redeeming social importance." The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position.…

I would give the broad sweep of the First Amendment full support. I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics, or any other field.

Further Resources

BOOKS

Eisler, Kim Isaac. A Justice for All: William J. Brennan, Jr., and the Decisions That Transformed America. New York: Simon and Schuster, 1993.

Goldman, Roger L., and David Gallen. Justice William J. Brennan, Jr.: Freedom First. New York: Carroll & Graf Publishers, 1994.

Harrison, Maureen, and Steve Gilbert, eds. Obscenity and Pornography Decisions of the United States Supreme Court. Carlsbad, Calif.: Excellent Books, 2000.

Heins, Marjorie. Not in Front of the Children: "Indecency," Censorship and the Innocence of Youth. New York: Hill and Wang, 2001.

Hopkins, W. Wat. Mr. Justice Brennan and Freedom of Expression. New York: Praeger, 1991.

Mackey, Thomas C. Pornography on Trial: A Handbook with Cases, Laws, and Documents. Santa Barbara, Calif.: ABC-CLIO, 2002.

Zelezny, John D. Communications Law: Liberties, Restraints, and the Modern Media. Belmont, Calif.: Wadsworth/Thomson Learning, 2001, 3rd edition.

WEBSITES

Roth v. United States Certiorari to the United States Court of Appeals for the Second Circuit. Available at http://www.fordhamprep.org/socstud/Cases/roth.htm (accessed March 6, 2003).