Roth v. United States; Alberts v. California

Brief Fact Summary. This case defines obscenity while sustaining the validity of federal and state obscenity laws.

Synopsis of Rule of Law. Obscene material is material which deals with sex in a manner appealing to prurient interest. It is not protected by the First Amendment of the United States Constitution (Constitution).

Facts. The Defendant, Mr. Roth (Defendant #1) was convicted of mailing obscene advertising and an obscene book in violation of a federal statute barring the mailing of “obscenity.” The Defendant, Mr. Alberts (Defendant #2) was convicted under a California law for “lewdly keeping for sale obscene and indecent books” and “publishing an obscene advertisement of them.”

Issue. Whether obscenity is utterance within the area of protected speech and press?

Held. No. Judgment of the lower court affirmed. In light of history, it is apparent that the phrasing of the First Amendment of the Constitution was not intended to protect every utterance. Implicit in the history of the First Amendment of the Constitution is the rejection of obscenity as utterly without redeeming social importance. Sex and obscenity are not synonymous. Obscenity is not within the area of protected speech and press. The test for obscene material is whether the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. This test provides safeguards adequate to withstand the constitutional infirmity. Obscenity is not within the area of protected speech and press. Therefore obscenity is unprotected speech.

Dissent. Purity of publication should not be the basis of that publication’s legality.
Concurrence. The government can punish obscene conduct. That is all the Court needs to decide.
Even assuming that pornography cannot be deemed to cause criminal conduct, the State can reasonably draw the inference that over a long period the indiscriminate dissemination of materials, the essential character of which is to degrade sex, will have an eroding effect on moral standards.

Discussion. This case defines the test for obscenity which is whether the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. The Court holds that obscenity is not protected speech.