354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957)
Roth conducted a business in New York in the publication and sale of books, photographs and magazines.1 He used circulars and advertising matter to solicit sales and 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.2 His conviction was affirmed by the Court of Appeals for the Second Circuit.3
Alberts conducted a mail-order business from Los Angeles.4 He was convicted by the Judge of the Municipal Court of the Beverly Hills Judicial District, having waived a jury trial, under a misdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent books, and with writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code.5 The conviction was affirmed by the Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles.6
The Supreme Court granted certiorari in the Roth case and noted probable jurisdiction in the Alberts case.
Whether the federal obscenity statute violates the First Amendment provision that Congress shall make no law abridging the freedom of speech or of the press?7
Obscenity is not within the area of constitutionally protected speech or press.8 Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.9 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.10
No. Roth conducted a business in New York in the publication and sale of books, photographs and magazines.11 He used circulars and advertising matter to solicit sales.12 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.13 His conviction was affirmed by the Court of Appeals for the Second Circuit. The Supreme Court granted certiorari in the Roth case.14
The Court held that all ideas having even the slightest redeeming social importance have the full protection of the guaranties unless excludable because they encroach upon the limited area of more important interests.15 But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.16 This rejection 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 1956.17 Applying this rule to the facts of Roth's case, the mailing of obscene circulars and an obscene book constitutes expression outside the protection of the First Amendment, so the federal statute does not violate it.18
The federal obscenity statute does not violate the First Amendment.19
Related opinions on this issue
Justice Harlan dissented in the Roth case.20 He viewed the federal interest in protecting the Nation against pornography as attenuated compared with state interests.21 Congress has no substantive power over sexual morality. Such powers as the Federal Government has in this field are but incidental to its other powers.
Harlan warned that the dangers of federal censorship are far greater than anything the States may do because a nationwide federal ban would destroy the prerogative of the States to differ on their ideas of morality.22 Harlan concluded that the limited federal interest cannot extend to mere thoughts and that the statute as construed reaches beyond hard-core pornography, so he would reverse the conviction.23
Joined by Justice Black
Justice Douglas dissented, joined by Justice Black.24 He argued that the tests by which the convictions were obtained require only the arousing of sexual thoughts.25 He stated that punishment for thoughts provoked, not for overt acts, cannot be squared with First Amendment decisions.26
Douglas stated that any test turning on what offends the community's standards is too loose and destructive of freedom of expression.27 He concluded that the First Amendment puts free speech in the preferred position so that literature should not be suppressed merely because it offends the moral code of the censor.28
Chief Justice Warren concurred in the result.29 He would limit the decision to the facts before the Court and to the validity of the statutes in question as applied. Broad language used here may eventually be applied to the arts and sciences and freedom of communication generally.
Warren noted that there is a social problem presented by obscenity attested by the expression of the legislatures of the forty-eight States as well as the Congress.30 He emphasized that the conduct of the defendant is the central issue, not the obscenity of a book or picture.31 The defendants were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect.32 Warren agreed with the Court's decision in its rejection of the other contentions raised by these defendants.33
Whether the obscenity provisions of the California Penal Code invade the freedoms of speech and press as they may be incorporated in the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment?34
No. Alberts conducted a mail-order business from Los Angeles.37 He was convicted by the Judge of the Municipal Court of the Beverly Hills Judicial District, having waived a jury trial, under a misdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent books, and with writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code. The conviction was affirmed by the Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles. The Supreme Court noted probable jurisdiction in the Alberts case.38
The Court applied the same historical and structural reasoning used for the federal statute, holding that obscenity is not protected speech.39 Applying the rule to Alberts' conduct of keeping obscene books for sale and publishing obscene advertisements, the California statute does not invade protected liberties under the Fourteenth Amendment.40
The obscenity provisions of the California Penal Code do not invade freedoms of speech and press under the Fourteenth Amendment.41
Related opinions on this issue
Justice Harlan concurred in the result in Alberts.42 He emphasized that the function of reviewing state judgments under the Fourteenth Amendment is narrow.43 The Court should inquire only whether state action subverts fundamental liberties implicit in the Due Process Clause that it cannot be sustained as a rational exercise of power.44
Harlan concluded that it is not irrational for California to consider that pornography can induce a type of sexual conduct which a State may deem obnoxious to the moral fabric of society.45 Upon independent perusal of the material he could not say its suppression would so interfere with the communication of ideas in any proper sense that it would offend the Due Process Clause.46
Chief Justice Warren concurred in the result. He agreed that the statutes as applied to the defendants' conduct were constitutional.47 Warren stressed that the personal element in these cases is seen most strongly in the requirement of scienter.48 The defendants were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect.
He would limit the decision to the facts before the Court and to the validity of the statutes in question as applied because broad language may eventually be applied to the arts and sciences and freedom of communication generally.49
Whether these statutes violate due process because they are too vague to support conviction for crime?50
Obscenity statutes do not violate due process when the words convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.51 The statutes must be applied according to the proper standard of whether to the average person applying contemporary community standards the dominant theme of the material taken as a whole appeals to prurient interest.52
No. The federal statute makes punishable the mailing of material that is obscene, lewd, lascivious, or filthy or other publication of an indecent character.53 The California statute makes punishable the keeping for sale or advertising material that is obscene or indecent.54 The Court recognized that these terms are not precise but held that lack of precision is not itself offensive to due process requirements.55 The Constitution does not require impossible standards.56 All that is required is language that conveys sufficiently definite warning when measured by common understanding and practices.57
Both trial courts below sufficiently followed the proper standard of judging the material as a whole upon the average person in the community.58 Applying the rule to the convictions of Roth and Alberts, the statutes as applied give adequate warning and do not violate due process.59
The statutes do not violate due process by being too vague.60
Whether power to punish speech and press offensive to decency and morality is in the States alone so that the federal obscenity statute violates the Ninth and Tenth Amendments?61
The federal obscenity statute is a proper exercise of the postal power delegated to Congress by Article I Section 8 Clause 7.62 When objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments the inquiry must be directed toward the granted power.63 If granted power is found the objection must fail.64
No. Roth argued that the federal obscenity statute unconstitutionally encroaches upon the powers reserved by the Ninth and Tenth Amendments to the States and to the people.65 The Court held that this argument falls in light of the holding that obscenity is not expression protected by the First Amendment.66 The federal statute punishing the use of the mails for obscene material is therefore a proper exercise of the postal power.67 Applying the rule to Roth's mailing of obscene material through the mails, the statute does not violate the Ninth and Tenth Amendments.68
The federal obscenity statute does not violate the Ninth and Tenth Amendments.69
Whether Congress by enacting the federal obscenity statute under the power delegated by Article I Section 8 Clause 7 to establish post offices and post roads preempted the regulation of the subject matter?70
The federal obscenity statute does not preempt state regulation because the federal statute deals only with actual mailing.71 It does not eliminate the power of the state to punish keeping for sale or advertising obscene material.72 The state statute imposes no direct physical interference with federal postal functions.73
No. Alberts argued that because his was a mail-order business the California statute is repugnant to Article I Section 8 Clause 7 under which Congress allegedly preempted the regulatory field.74 The Court held that the federal statute deals only with actual mailing and does not eliminate the power of the state to punish keeping for sale or advertising obscene material.75 The state statute in no way imposes a burden or interferes with the federal postal functions.76 Applying the rule to Alberts' mail-order business conducted from Los Angeles, the California statute is not preempted.77
Congress did not preempt the regulation of the subject matter.78