Free Speech
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Roth v. United States: A New Definition of Obscenity

  • 1957 case Roth v. United States ruled that all speech was guaranteed First Amendment protection unless it was "utterly without redeeming social importance"
  • In Roth, Court defined obscenity as material that "deals with sex in a manner appealing to prurient interest"

The Court's first opportunity came in 1957, when it heard two cases simultaneously. Samuel Roth was convicted under a federal statute that criminalized the publication and mailing of obscene materials; David Alberts was convicted under a California law that prohibited distribution and advertising of obscene materials. Both men argued that they had been convicted under laws that violated the First Amendment.

In its decision, the Court held to a very broad definition of First Amendment protections. "All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties." But obscenity, the Court said, fell outside this broad spectrum of protection as it was "utterly without redeeming social importance." Having reached this conclusion, the Court tried for the first time to define obscenity. It began by insisting that "sex and obscenity are not synonymous." Artistic and scientific treatments of sex were not obscene. But if some material "deals with sex in a manner appealing to prurient interest" then it could be classified as obscene.55

In reaching this conclusion, the Court rejected the frequently used obscenity standard developed by British courts in Regina v. Hicklin. In that case obscenity was judged "by the effect of isolated passages upon the most susceptible persons." Instead, the United States Supreme Court set a very different standard by holding that materials could be labeled obscene if "to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest."56

The distinctions were significant. The Supreme Court substituted the "average person" for the "most susceptible person"—such as a child or a very religious person—and it required that the material be "taken as a whole," that is, judged in its entirety, not on the basis of an isolated passage or picture. Moreover, in subsequent cases, the Court worked to reinforce this relatively liberal approach to obscenity. When lower courts interpreted "community standards" to mean local community standards, resulting in different rules throughout the country, the Court said that its intention had been to apply the standards of the national community.

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