Roth v. United States (Alberts v. California), 354 U.S. 476; 77 S. Ct. 1304; 1 L. Ed. 2d 1498 (1957)

Facts—Samuel Roth conducted a business in New York in the publication and sale of books, photographs, and magazines. He was indicted and convicted of mailing obscene circulars and advertising and an obscene book in violation of the federal obscenity statute. Combined with this case was Alberts v. California, in which David Alberts had been convicted of publishing obscene matter in violation of the California penal code.

Question—Do these statutes regulating obscenity violate the provisions of the First Amendment?

Decision—No.

Reasons—J. Brennan (6–3 in Roth; 7–2 in Alberts). The guarantees of freedom of expression give no absolute protection for every utterance. The protection was fashioned to assure unfettered interchange of ideas for bringing about political and social changes by the people. All ideas having the slightest redeeming social importance have the full protection of the guarantees unless excludable because they encroach upon the limited area of more important interests. But obscenity is not within the area of constitutionally protected speech or press. The test of obscenity 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 Court held that these statutes, applied according to the proper standard for judging obscenity, did not offend constitutional safeguards against convictions based upon protected material. Both trial courts in these cases had sufficiently followed the proper standard.

J. Douglas’s dissent stated that the law violated the First and Fourteenth Amendments by making “the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader.”