While reaffirming that obscene material is not protected by the First Amendment in these two simultaneous rulings, the Supreme Court for the first time defined obscenity narrowly and put strict limits on the kinds of obscenity that may be proscribed by either federal or state laws.

A man named Samuel Roth conducted a New York business that published and sold books, magazines, and photographs. The federal government’s Comstock statute made it a crime to send through the U.S. mail publications that are “obscene, lewd, lascivious, or filthy” or “of an indecent character.” Roth was found guilty in district court for violating four counts of the statute. At the same time, David Alberts was convicted under a California statute that criminalized the advertising of “obscene or indecent” materials. When Roth and Alberts each petitioned the U.S. Supreme Court for review, the Court accepted both cases and consolidated them into one decision. The major issue was whether the state stututes, as interpreted, were consistent with the First Amendment’s freedom of speech and press.

Historically, both the federal and state governments had long criminalized most forms of pornography; time and again the Supreme Court had consistently endorsed such laws as a reasonable means to promote the state’s legitimate interest in “decency.” Between 1842 and 1956, the U.S. CongressCongress, U.S.;antiobscenity legislation had enacted twenty antiobscenity laws, and at least six times the Supreme Court had upheld prosecutions under these laws. Many American courts continued to follow Regina v. Hicklin[c]Regina v. Hicklin (1868), which looked to the effects of isolated passages on the most susceptible persons of society. Under what became known as the Hicklin test, the works of authors such as D. H. LawrenceLawrence, D. H. and James JoyceJoyce, James were often prohibited from public sale. Roth and Alberts, however, had been convicted under a less restrictive standard, promoted by Judge Learned HandHand, Learned and other liberal jurists, which considered the work as a whole and its impact on the average adult. Given the Court’s precedents, the prospects for Roth and Alberts did not appear very promising.

The Court voted six to three to uphold Roth’s federal conviction and seven to two to uphold Alberts’s conviction under California law. Writing for the majority, Justice William J. BrennanBrennan, William J., Jr.;on obscenity[obscenity], Jr., summarized the Anglo-American tradition of proscribing obscenity, and he concluded that obscenity enjoyed no constitutional protection because it had been historically recognized as “utterly without redeeming social importance.” Making a distinction between sex and obscenity, Brennan rejected the Hichlin test as “unconstitutionally restrictive.” As an alternative, he endorsed the alternative test of “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” Curiously, Brennan did not discuss whether there was any distinction between indecent and obscene material–a distinction that would later become important.

Two liberal members of the Court, Justices William O. DouglasDouglas, William O.;on free expression[free expression] and Hugo L. BlackBlack, Hugo L.;on free expression[free expression], dissented and asserted that the First Amendment protected all forms of expression. One member of the Court, John Marshall HarlanHarlan, John Marshall;on obscenity[obscenity], distinguished between federal and state prosecution of obscenity, arguing that due process in the Fourteenth Amendment allowed the states greater discretion than the provision of “no law” in the First Amendment.

The Roth/Alberts decision was a major landmark case for four reasons. First, it established a new precedent of restricting government’s prerogative to criminalize obscene or indecent materials. Secondly, it proposed a narrow definition of obscenity. Thirdly, Roth/Alberts declared that all ideas were protected unless they were “utterly without redeeming social importance.” Finally, it explicitly rejected the Hicklin test, thus making it much more difficult for prosecutors to obtain criminal convictions. In post-Roth cases, the Court would often be divided over whether the First Amendment protects a right to traffic in indecent or obscene materials–even more over how these subjective terms should be defined. The Court’s majority of would eventually agree to accept the compromises found in Miller v. California[c]Miller v. California (1973) and New York v. Ferber[c]New York v. Ferber (1982).


First Amendment

New York v. Ferber

Obscenity and pornography

Speech and press, freedom of

Warren, Earl