Roth v US: Obscene Speech Under First Amendment

In Roth v US, 354 U.S. 476 (1957), the U.S. Supreme Court held that obscene speech was not protected under the U.S. Constitution. The decision also established a test to determine whether speech should be considered obscene.

Facts of Roth v US

The case challenged the constitutionality of 18 U.S.C. § 1461, which makes punishable the mailing of material that is “obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character.” Samuel Roth conducted a book-selling business in New York. He used circulars and advertising matter to solicit sales of books, such as American Aphrodite, which contained literary erotica and nude photography. Roth was convicted by a jury in the District Court for the Southern District of New York on four counts of mailing obscene circulars and advertising obscene books in violation of the federal obscenity statute.

After the Second Circuit Court of Appeals affirmed the conviction, the U.S. Supreme Court granted certiorari. It combined Roth’s case with a similar challenge raised by a California bookseller named David Alberts. He was charged and convicted of selling obscene and indecent books in violation of a California law.

Court’s Decision in Roth v US

By a vote of 6-3, the Court upheld the convictions. It held that obscene speech was not protected under the U.S. Constitution. “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,” the court held. William J. Brennan authored the majority opinion.

In reaching its decision, the majority highlighted that the First Amendment was not intended to protect every utterance. As Justice Brennan wrote:

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.

The Court held that the standard for determining obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeal to prurient interest.” The test was later revised in Miller v. California.