Roth v. United States
Roth v. United States was a pivotal Supreme Court case that addressed the limits of free speech concerning obscenity. The case involved Sam Roth, a New York publisher convicted for mailing obscene materials, alongside David Alberts, who faced similar charges under California law. On April 22, 1957, the Court upheld their convictions, establishing that obscenity is not protected under the First Amendment. Justice William J. Brennan, Jr. articulated that material deemed "obscene" lacks redeeming social value and defined obscenity as content that appeals to prurient interests when judged by contemporary community standards. While the majority opinion set a framework for evaluating obscenity, dissenting Justices like William O. Douglas advocated for full protection of such materials under free speech. The ruling significantly impacted the regulation of sexually explicit publications, allowing magazines like Playboy to flourish while challenging traditional notions of obscenity. Over time, societal attitudes towards sexually explicit content transformed, leading to a landscape where the availability of such material became ubiquitous, complicating effective legal regulation.
Roth v. United States
Identification U.S. Supreme Court case that established a constitutional test for obscenity statutes
Date Decided on June 24, 1957
Roth v. United States effectively ended legal regulation of obscene material in the country and set a precedent that opened the door for future publication, manufacture, and sale of erotic literature, videotapes, and Internet pornography.
Roth v. United States involved the conviction of Sam Roth, a New York publisher, for mailing obscene advertising and an obscene book in violation of the postal statutes. A companion case, Alberts v. California, centered on David Alberts’s conviction for violating a California law by “lewdly keeping for sale obscene and indecent books.” Both cases were argued on April 22, 1957. The Supreme Court, in an opinion by Justice William J. Brennan, Jr., upheld the convictions of Roth and Alberts. Justices William O. Douglas and Hugo Black dissented.
The first issue the Court had to decide in the case was whether “obscene” material was protected by freedom of speech under the First Amendment. Justice Brennan’s opinion reviewed the historical meaning of the First Amendment and pointed out that obscenity had always been rejected in the Court’s opinions as being “utterly without redeeming social importance.” Therefore, the Court held “that obscenity is not within the area of constitutionally protected speech or press.” “Obscenity” still had to be defined, however, and Brennan went on to argue that not all material that deals with sex is obscene. According to the opinion, “[o]bscene material is material which deals with sex in a manner appealing to prurient interest.” In rejecting the notion that the prurient interest of the most susceptible members of the community must govern, the Court established a more stringent test: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”
The dissenting opinion by Justice Douglas argued for full First Amendment protection of obscene material; Douglas thought it improper to allow criminal convictions to rest on “the purity of thought which a book or tract instills in the mind of the reader.”
Legal Consequences of Roth
The Court’s position in Roth—that obscenity is unprotected constitutionally because it is without redeeming social value—quickly became a legal test. The converse of the proposition was that material that does have redeeming social value was therefore not obscene. Publishers of erotically oriented material were quickly able to take advantage of the Court’s decision. For example, Playboy magazine’s formula—serious journalism paired with nude photographs of attractive young women—protected it from obscenity prosecution. Playboy later had its imitators. Penthouse, Gallery, and Hustler all mimicked the Playboy formula but with increasingly explicit sexual content. Later, a coffee-table book, The Joy of Sex (1972), contained very explicit drawings of couples engaged in sexual relations but was marketed as a kind of instruction manual, making it similarly immune to prosecution. All of these publications strove for a mass market in legitimate commercial channels, quite unlike prior distribution of pornographic material, which tended to be clandestine.
The “contemporary community standards” phrase from Roth also became problematic. As the Court’s case law developed during the 1950’s and 1960’s, there was less and less agreement on the Court as to what “community standard” was and how it was to be ascertained. The Court’s obscenity decisions became an unsatisfactory patchwork of changing rules and formulations. Some of the justices announced that they were deciding obscenity cases on an ad hoc basis rather than in accordance with a clearly expressed principle or legal test. Simultaneously, community standards were also rapidly changing.
Impact
Roth v. United States signaled the end of effective legal regulation of obscene material in the United States. By the late 1950’s, the legal standing of any given publication had become obscure, and it became very difficult to prosecute the publishers and distributors of erotically oriented material. As time went by the public began to accept and ultimately to expect increasingly explicit and exciting representations of sexual acts and behavior. The development of the movie rating system was only one sign of the change. The case’s real manifestations were in the marketplace—publications such as Playboy and Penthouse developed huge circulation figures. These figures continued to rise until the widespread distribution of videocassette players coupled with the availability of “XXX” videos became a more compelling means of distributing erotically stimulating materials. The ready availability of pornography on cable television and on the Internet into the twenty-first century enlarged the business still more and made effective regulation much less likely.
Bibliography
Elias, Elias, et al., eds. Porn 101: Eroticism, Pornography, and the First Amendment. Amherst, N.Y.: Prometheus Books, 1999. Discusses the trade in erotic literature and films as well as the impact of Supreme Court rules on the pornography business.
Gurstein, Rochelle. Repeal of Reticence: America’s Cultural and Legal Struggles over Free Speech, Obscenity, Sexual Liberation, and Modern Art. New York: Farrar, Strauss, and Giroux, 1998. Covers landmark cases regarding obscenity, among others.
Hixson, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale: Southern Illinois University Press, 1996. Chronological review of the approaches taken by the Supreme Court, focusing on the opinions of individual justices.