The petitioner challenged the constitutionality of a criminal obscenity statute alleging that it violates the First Amendment.
All ideas having redeeming social importance have the full protection of the guaranties of the Constitution but obscenity is not within the area of constitutionally protected speech or press.
In Roth, the 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 the press.” In Alberts, the constitutional question is 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.
Does the federal obscenity statute violate the provision of the First Amendment that “Congress shall make no law abridging the freedom of speech or the press?”
No, obscenity is not within the area of constitutionally protected speech or press. All ideas having even the slightest redeeming social importance such as unorthodox ideas, controversial ideas, and even hateful ideas have the full protection of the guaranties. However, implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.
The defendants in both cases were engaged in the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers. They were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. The State and Federal Governments can constitutionally punish such conduct.
It is argued that obscenity statutes offend the constitutional guaranties because they punish incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. However, sex and obscenity are not the same. Obscene material is material that deals with sex in a manner appealing to prurient interest. The portrayal of sex is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Moreover, it is argued that statutes do not provide reasonably ascertainable standards of guilt and thus violate the constitutional requirements of due process. The word “obscene” is not sufficiently precise because it does not mean the same thing to all people. However, lack of precision is not itself offensive to the requirements of due process. All that is required is that the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.