Roth v. US

Why is obscenity not protected speech, according to Justice Brennan? How should a court determine what is obscene? In the view of Justice Harlan, why does the federal government not have the power to ban obscenity but the states do? According to Justice Douglas’s dissent, why must obscenity be protected under freedom of speech?
The First Amendment protects freedom of both speech and religion. Does the Court think differently about religious liberty and free speech? Compare the Court’s reasoning in Roth with its reasoning in Schempp.
Introduction

The First Amendment protects “freedom of speech,” but what is included in that protection? In Chaplinsky v. New Hampshire (1942), the Supreme Court reaffirmed that “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” . . .

In Roth v. US (1957), the Court grappled with what constitutes the “obscene” that is therefore unprotected by the First Amendment. This was an important decision because while it reaffirmed that obscenity is not protected under freedom of speech, it liberalized the judicial test for deciding what is obscene. This decision opened the door for more sexually explicit material to be sold, leading to many Supreme Court cases dealing with pornography over the next thirty years. In Miller v. California  (1973), the Court refined Roth to a three-part test defining obscenity as material that, applying contemporary community standards, appeals to prurient interest, depicts sexual or excretory activities in a patently offensive manner, and is utterly without socially redeeming importance. Along with changing social mores, the difficulty of applying this test—especially in dealing with new technology like the internet—has led to a drastic reduction in the number of obscenity prosecutions across the country. More broadly, the doctrine of Roth has combined with the idea articulated in NY Times  v. Sullivan (1964), that free speech “should be uninhibited, robust, and wide-open,” to lead the Supreme Court to hold that a much wider range of speech is now protected by the First Amendment.

—Jeffrey Sikkenga

Source: 354 U.S. 476; https://www.law.cornell.edu/supremecourt/text/354/476


Justice BRENNAN delivered the opinion of the Court, joined by Justices FRANKFURTER, BURTON, CLARK, and WHITAKER. Chief Justice WARREN concurred in the judgment.

. . . [T]he primary constitutional question is whether the federal obscenity statute violates the provision of the First Amendment that “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .”

Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals for the Second Circuit. We granted certiorari.[1]

[2]The dispositive question is whether obscenity is utterance within the area of protected speech and press. Although this is the first time the question has been squarely presented to this Court, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press.

The guaranties of freedom of expression in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes. . . .

In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press.

The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. . . .

All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire (1942):

. . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.[3] . . .

We hold that obscenity is not within the area of constitutionally protected speech or press.

However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. . . .

The fundamental freedoms of speech and press have contributed greatly to the development and wellbeing of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed, and opened only the slightest crack necessary to prevent encroachment upon more important interests. It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.

The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons (Regina v. Hicklin [1868]) Some American courts adopted this standard, but later decisions have rejected it and substituted this test: whether, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected