Today in 1957: Roth v. U.S. rules obscenity isn’t protected speech

June 24, 2011

Today in Legal HistoryToday in 1957, the Supreme Court held for the first time that obscenity was not speech protected by the First Amendment.

The case, Roth v. United States, consolidated two separate cases involving two men, Samuel Roth and David Alberts, and their individual obscenity convictions for selling and distributing pictures of “nude and scantily-clad women.”

The convictions were upheld, with the court holding 6-3 that obscene material was not protected by the First Amendment.

Finding an exact and concrete definition of obscenity was problematic to the Court in this case, and several future cases.

In Roth, the Court defined obscenity as “appealing to the prurient interest,” “patently offensive,” and being “utterly without redeeming social importance.”

That standard was then applied in another obscenity case heard by the Court: Memoirs v. Massachusetts.

In Memoirs, the Court ruled that a book about the “adventures of a young girl who becomes a prostitute in London” was not obscenity.

Applying the factors from Roth, the Court determined the book indeed appealed to the prurient interest and was patently offensive, but it was not without redeeming social importance.

The case didn’t get the Court any closer to firmly defining obscenity, since there was no clear majority opinion, and the plurality that emerged only reaffirmed Roth’s definition.

By this point, obscenity had become a major political issue.

The ambiguity of the Court’s “obscenity” definition had the unintended effect of loosening obscenity regulations, since just about anything sexual was open to prohibition prior to Roth.

For example, in direct response to many Warren Court opinions, including those on obscenity, Richard Nixon pledged to appoint “strict constructionists” to the Supreme Court  during his 1968 presidential campaign.

Supreme Court BuildingIronically, two justices – William O. Douglas and Hugo Black – dissented in Roth because their First Amendment “literalist” views insisted that obscenity was protected speech under the First Amendment.

In any case, the outcry against obscenity gained a victory in the next decision, Miller v. California, a case which provided the obscenity test used by courts today (the Miller test).

The test consists of three parts, which are recognizable as the reshaped Roth factors.

The first and second are largely the same, except for the added requirement that the standards are locally-based, rather than nationally-based.

The third factor changed obscenity as “utterly without redeeming social importance,” to lacking “serious literary, artistic, political or scientific value.”

The “community standards” aspect of the decision is of particular importance, because it, in effect, left interpretation of a constitutional right up to local opinion (i.e. what is protected speech in one location may not be in another).

However, the decision is anything but static.

Since communities continue to change and evolve over time, so too do community standards (and constitutional protections along with them).

Thus, in trying to correct ambiguities of the Roth decision, the Miller decision directs that the interpretation of constitutional phrases and rights changes with society over time.

So what may not be constitutionally protected today, may be protected tomorrow, without any changes in law whatsoever.

For FindLaw’s comprehensive list of all Supreme Court decisions on obscenity, click here.