Roth v. United States: Obscenity and the First Amendment

In Roth v. United States, 354 U.S. 476 (1957), the Supreme Court ruled that obscene material is not protected by the First Amendment and can be criminalized by federal and state governments.¹ Writing for a 6–3 majority, Justice William Brennan replaced a Victorian-era obscenity standard with a new constitutional test and drew, for the first time, a line between protected sexual expression and material the government could punish. The core holding has never been overturned, though the specific test has since been rewritten.

What the Court Held

The majority concluded that obscenity is “not within the area of constitutionally protected speech or press.”² Brennan reasoned that the First Amendment protects all ideas with “even the slightest redeeming social importance,” including unorthodox and offensive ones, but obscenity is “utterly without redeeming social importance” and therefore falls outside that protection.¹

The Court was careful to separate sex from obscenity. Sex, Brennan wrote, is a legitimate subject for art, literature, and science, and depictions in those contexts carry full First Amendment protection. Only material whose sole appeal is to prurient interest, with no broader value, counts as obscenity.³ On that basis, the Court upheld both convictions before it.

The Roth Test

Brennan set out a new inquiry to replace the standard American courts had been using. Under Roth, the question is whether the average person, applying contemporary community standards, would find that the dominant theme of the material, taken as a whole, appeals to prurient interest.³

Each piece of that formulation did specific work. The “average person” replaced the most vulnerable reader as the benchmark. “Contemporary community standards” tied the analysis to present-day values rather than a fixed moral code. And “taken as a whole” meant prosecutors could no longer isolate a few graphic passages and ignore the rest of a book.

Brennan defined obscene material as content that deals with sex “in a manner appealing to prurient interest,” which he described as having “a tendency to excite lustful thoughts.” The opinion also endorsed the American Law Institute’s Model Penal Code definition of prurient interest as “a shameful or morbid interest in nudity, sex, or excretion.”³

Why the Old Hicklin Standard Was Rejected

Before Roth, American courts generally applied a test from the 1868 English case Regina v. Hicklin. Under Hicklin, material could be declared obscene if isolated passages had a tendency to corrupt the most susceptible readers, usually meaning children or people with the least tolerance for sexual content. A single provocative chapter could condemn an entire novel.¹

Serious literary works were regularly banned as a result. Months before Roth, Justice Frankfurter had written in Butler v. Michigan that using the Hicklin approach to protect children was like “burn[ing] the house to roast the pig,” because it reduced the adult reading public to what was fit for minors.⁴ Roth finished the job Butler had started.

The Two Cases Behind the Ruling

The decision resolved two separate prosecutions the Court had consolidated. Samuel Roth was a New York publisher and bookseller convicted under 18 U.S.C. § 1461, the federal statute rooted in the Comstock Act of 1873, for mailing obscene circulars and an obscene book.⁵ David Alberts ran a similar mail-order business in California and was convicted under California Penal Code § 311 for keeping obscene material for sale and advertising it. Neither statute defined obscenity, which is why the constitutional question reached the Court.¹

The Dissents

Justices Douglas and Black rejected the majority’s premise entirely. Douglas wrote that the new test made “the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader,” punishing people for thoughts provoked rather than conduct committed. He warned that giving judges and juries the power to decide what appeals to “prurient interest” handed the government a roving censorship authority.³ For both dissenters, the First Amendment left no room for an obscenity exception.

Justice Harlan split the difference. He voted to uphold Alberts’ state conviction but to reverse Roth’s federal one, on federalism grounds. States, in his view, have broad police power over local morals, but Congress has no independent authority in that area and can regulate only incidentally through its postal power. A federal ban imposes a single standard on the entire country, while state-level regulation preserves diversity. Harlan also disagreed with the “utterly without redeeming social importance” threshold, writing that he could not accept “that any book which tends to stir sexual impulses and lead to sexually impure thoughts necessarily is ‘utterly without redeeming social importance.'”¹

What Replaced the Roth Test

The Roth framework gave courts a starting point, but applying it proved chaotic. The Supreme Court spent the next decade taking obscenity cases one at a time with inconsistent results.

In 1966, the Court refined Roth in Memoirs v. Massachusetts, a case over the 18th-century novel Fanny Hill. A plurality added that material had to be “utterly without redeeming social value” to be obscene, and it put the burden of proving that negative on the prosecution. Even a modest claim to literary or historical value became enough to save a work from suppression.⁶

The Court overhauled the standard again in Miller v. California in 1973. Miller kept Roth’s average-person, community-standards, and whole-work requirements, but restructured them into a three-part test that governs today. Under Miller, material is obscene only if:

the average person, applying contemporary community standards, would find that the work as a whole appeals to prurient interest;
the work depicts sexual conduct, specifically defined by state law, in a patently offensive way; and
the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller dropped the “utterly without redeeming social value” language, which had made obscenity prosecutions nearly impossible, and replaced it with the more workable question of whether the material lacks “serious” value. It also required state law to specifically define which sexual conduct is prohibited, giving defendants clearer notice.⁷

Why Roth Still Matters

Roth no longer supplies the operative test for identifying obscene material. But its central holding, that the First Amendment does not protect obscenity, has never been overturned. Every obscenity prosecution since 1957 rests on the constitutional line Brennan drew, even as the test for locating that line has been rebuilt around it.

1
Justia U.S. Supreme Court Center. Roth v. United States, 354 U.S. 476 (1957)
2
Oyez. Roth v. United States
3
Supreme Court of the United States. Roth v. United States, 354 U.S. 476 (1957)
4
Justia U.S. Supreme Court Center. Butler v. Michigan, 352 U.S. 380 (1957)
5
Office of the Law Revision Counsel. 18 U.S. Code 1461 – Mailing Obscene or Crime-Inciting Matter
6
Justia U.S. Supreme Court Center. Memoirs v. Massachusetts, 383 U.S. 413 (1966)
7
Justia U.S. Supreme Court Center. Miller v. California, 413 U.S. 15 (1973)