Roth v. United States, Alberts v. California
Decided on June 24, 1957; 354 US 476


Obscenity and the publication of obscene material are not protected by the First Amendment.

 

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Free speech, obscenity

B. Legal Question Presented:

Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment?

II. CASE SUMMARY:

A. Background:

"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.

On certiorari, the United States Supreme Court affirmed.

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Emanuel Redfield for the Roth case and by A.L. Wirin for the Alberts case; for the American Book Publishers Council, Inc. et al. by Horace S. Manges; for the Greenleaf Publishing Co. et al. by Abe Fortas, William L. McGovern, Abe Krash and Maurice Rosenfield; for the Authors League of America et al. by Irwin Karp and Osmond K. Fraenkel; and for Ernst et al. by Morris L. Ernst, Harriett F. Pilpel and Nancy F. Wechsler.

David von G. Albrecht and O. John Rogge argued the cause for the petitioner. With them on the brief were David P. Siegel, Peter Belsito and Murray A. Gordon.

Roger D. Fisher argued the cause for the United States. With him on the brief were Solicitor General Rankin and Assistant Attorney General Olney.
IV. THE SUPREME COURT'S DECISION:

"Obscenity is not within the area of constitutionally protected freedom of speech or press - either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States.

    (a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.
    (b) 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.
    (c) 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.
Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges' instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct....
    (a) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest."
The United States Supreme Court affirmed the Court of Appeal judgment.
Justice Vote: 3 Pro vs. 6 Con

  • Dougals, W. Pro (Wrote dissenting opinion)
  • Black, H. Pro (Joined dissenting opinion)
  • Harlan, J. Pro (Wrote dissenting opinion)
  • Brennan, W. Con (Wrote majority opinion)
  • Clark, T. Con (Joined majority opinion)
  • Burton, H. Con (Joined majority opinion)
  • Whittaker, C. Con (Joined majority opinion)
  • Frankfurter, F. Con (Joined majority opinion)
  • Warren, E. Con (Wrote concurring opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged reversal of the judgment of the Court of Appeals for the Second Circuit; the Supreme Court affirmed in a 6-3 vote, giving the ACLU an apparent loss.