Facts
- Samuel Roth operated a New York business publishing and selling books, photographs, and magazines and used mailings and circulars to solicit sales.
- Roth was indicted in the Southern District of New York for mailing obscene circulars/advertising and an obscene book under 18 U.S.C. § 1461.
- A jury convicted Roth on four counts; the Second Circuit affirmed.
- The Supreme Court granted certiorari to review the constitutionality of the federal obscenity statute as applied.
- The Court heard Roth with a companion case involving David S. Alberts, convicted under California law for keeping for sale and advertising allegedly obscene books.
Issues
- Whether 18 U.S.C. § 1461’s prohibition on mailing “obscene” matter violates the First Amendment.
- Whether state obscenity regulation violates the Fourteenth Amendment as applied to the States (companion case).
- Whether the statutory obscenity terms are unconstitutionally vague under due process.
- Whether the Constitution requires proof of a “clear and present danger” or likely antisocial conduct before obscenity may be punished.
Decision
- The Court affirmed Roth’s conviction and upheld 18 U.S.C. § 1461 as constitutional.
- The Court held obscenity is not protected speech or press under the First Amendment and is likewise unprotected against state regulation through the Fourteenth Amendment.
- The Court adopted a constitutional definition of obscenity: whether, to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.
- The Court rejected a requirement that the government prove a clear and present danger or probable inducement of antisocial conduct to sustain an obscenity conviction.
- The Court rejected vagueness challenges, concluding the statutory terms, as limited by the Court’s definition and the “taken as a whole” focus, provided fair notice consistent with due process.
- Vote: 6–3 against Roth; Justice Brennan authored the opinion of the Court, with the Chief Justice concurring in the judgment and Justices Black, Douglas, and Harlan dissenting in various respects.
Legal Principles
- Obscenity is categorically excluded from First Amendment protection.
- Obscenity is assessed by the “average person,” using contemporary community standards, focusing on the dominant theme of the work taken as a whole and its appeal to prurient interest.
- Sex-related content is not automatically obscene; obscenity turns on prurient appeal rather than mere sexual subject matter.
- Obscenity prosecutions do not require proof of clear and present danger or demonstrated harmful effects.
- Obscenity statutes are not void for vagueness when judicially limited by workable standards that provide fair warning and guide adjudication.
Conclusion
The Court sustained federal obscenity prosecutions under the First Amendment by treating obscenity as unprotected expression and by establishing a constitutional test centered on the average person, contemporary community standards, and the work’s dominant theme taken as a whole.