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Roth v. United States
Supreme Court of the United States
Argued April 22, 1957 Decided June 24, 1957
Full case name: Samuel Roth v. United States Citations: 354 U.S. 476; 77 S. Ct. 1304; 1 L. Ed. 2d 1498; 1957 U.S. LEXIS 587; 14 Ohio Op. 2d 331; 1 Media L. Rep. 1375 Prior history: Cert. to the U.S. Court of Appeals for the Second Circuit
Holding
Obscenity is not protected by the First Amendment, but more strictly defines what is considered "obscene".
Court membership
Chief Justice: Earl Warren Associate Justices: Hugo Black, Felix Frankfurter, William O. Douglas, Harold Hitz Burton, Tom C. Clark, John Marshall Harlan II, William J. Brennan, Charles Evans Whittaker
Case opinions
Majority by: Brennan Joined by: Frankfurter, Burton, Clark, Whittaker Concurrence by: Warren (in the judgment of the court only) Dissent by: Harlan Dissent by: Douglas Joined by: Black
Overruled by
Miller v. California, 413 U.S. 15 (1973)

Roth v. United States, 354 U.S. 476 (1957), 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.

Contents 1 Prior history 2 The Case 3 The Demise of Roth 4 Research Resources 5 See also 6 External links

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.

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.

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.

• First Amendment Library entry on Roth v. United States

• List of United States Supreme Court cases
• Freedom of speech
• United States Bill of Rights
• United States Constitution

• Summary of background and decision
• Full text of the decision courtesy of Findlaw.com