Obscenity Not Protected by the First Amendment: “Roth v. United States”
In the first major Supreme Court decision on obscenity, the Court in Roth v. United States held on this day that obscenity was not protected by the First Amendment.
The case involved Samuel Roth, a famous “literary outlaw” who had a long career publishing erotica and was arrested on several occasions. In this case, the Supreme Court upheld his conviction, and he was sentenced to five years in prison.
With respect to whether allegedly “obscene” material was protected by the the First Amendment, however, the Roth case was only the beginning. Justice William Brennan’s definition of obscenity opened the door to major challenges on several issues.
Over the next 15 years, the Supreme Court wrestled with how to apply the “Roth standard” to particular cases, and, with only some exceptions, steadily increased the boundaries of freedom of expression for sexually related material. Justice Brennan held that only material that was “utterly without redeeming social importance” could be held to be obscene.
But as later events soon proved, material on issues of abortion and same-sex sexual activity, while considered obscene by moralists, had important implications for social policy. Additional problems existed with Brennan’s formulation that material whose “dominant theme taken as a whole appeals to the prurient interest” [of the] “average person, applying contemporary community standards” could be ruled as obscene. But what about material where explicit sexuality was not the “dominant theme?” Should the judgment of the “average person” govern all publications. And as history clearly shows, “contemporary community standards” continue to evolve, especially in times of rapid social change, as in the 1960s in the U.S.
A number of First Amendment attorneys saw the weaknesses in Brennan’s definition and began a series of challenges that by the end of the 1960s effectively dismantled the Roth decision and opened a new era of First Amendment freedoms in the U.S. In the 1967 Supreme Court decision Redrup v. New York each of the nine justice wrote a separate definition of obscenity and the court overturned a series of convictions in an unsigned per curiam decision. In effect, the court gave up on trying to define obscenity.
Within a few years after the Roth decision famous novels that had long been unavailable legally in the United States, including Lady Chatterley’s Lover (July 21, 1959) and Tropic of Cancer (August 11, 1961; June 22, 1964) were declared not obscene.
The most important post-Roth decision is Miller v. California, decided on June 21, 1973, which established the “Miller Test.”
The Court: “. . . obscenity is not expression protected by the First Amendment.”
Learn more about the case: Whitney Strub, Obscenity Rules: Roth v. United States and the Long Struggle Over Sexual Expression (2013)
Read about the notorious publisher: Jay A. Gertzman, Samuel Roth: Infamous Modernist (2015)
Learn about Samuel Roth and his career: http://www.librarything.com/profile/SamuelRoth
Read about the history of sex and the U.S. Constitution: Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (2017)