Constitutional Law Reporter
Award
Menu
  • Home
  • US Constitution
  • Supreme Court Cases
  • Justices
    • Chief Supreme Court Justices
    • Current Supreme Court Justices
    • Past US Supreme Court Justices
  • American Biographies
    • General
    • Presidents
    • Vice-Presidents
  • Articles
    • Current Cases
    • Historical Cases
    • Impeachment
  • Videos
  • Links
Hot-Topics

March 6, 2023 | U.S. Supreme Court Takes on Big Tech

Roth v US: Obscene Speech Under First Amendment

Historical

In Roth v US, 354 U.S. 476 (1957), the U.S. Supreme Court held that obscene speech was not protected under the U.S. Constitution. The decision also established a test to determine whether speech should be considered obscene.

Facts of Roth v US

The case challenged the constitutionality of 18 U.S.C. § 1461, which makes punishable the mailing of material that is “obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character.” Samuel Roth conducted a book-selling business in New York. He used circulars and advertising matter to solicit sales of books, such as American Aphrodite, which contained literary erotica and nude photography. Roth was convicted by a jury in the District Court for the Southern District of New York on four counts of mailing obscene circulars and advertising obscene books in violation of the federal obscenity statute.

After the Second Circuit Court of Appeals affirmed the conviction, the U.S. Supreme Court granted certiorari. It combined Roth’s case with a similar challenge raised by a California bookseller named David Alberts. He was charged and convicted of selling obscene and indecent books in violation of a California law.

Court’s Decision in Roth v US

By a vote of 6-3, the Court upheld the convictions. It held that obscene speech was not protected under the U.S. Constitution. “Obscenity is not within the area of constitutionally protected freedom of speech or press either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States,” the court held. William J. Brennan authored the majority opinion.

In reaching its decision, the majority highlighted that the First Amendment was not intended to protect every utterance. As Justice Brennan wrote:

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, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.

The Court held that the standard for determining obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeal to prurient interest.” The test was later revised in Miller v. California.

Previous Articles

U.S. Supreme Court Takes on Big Tech
by DONALD SCARINCI on March 6, 2023

The U.S. Supreme Court heard oral arguments in two big cases involving Big Tech this week. The case...

Read More
SCOTUS to Clarify Standard for Determining Whether True Threat Exception Applies
by DONALD SCARINCI on February 27, 2023

The U.S. Supreme Court recently granted certiorari in Counterman v. Colorado, which involves the st...

Read More
SCOTUS to Take on Religious Rights in the Workplace
by DONALD SCARINCI on February 21, 2023

The U.S. Supreme Court has added another high-profile case to its docket, agreeing to address the r...

Read More
All Posts

The Amendments

  • Amendment1
    • Establishment ClauseFree Exercise Clause
    • Freedom of Speech
    • Freedoms of Press
    • Freedom of Assembly, and Petitition
    Read More
  • Amendment2
    • The Right to Bear Arms
    Read More
  • Amendment4
    • Unreasonable Searches and Seizures
    Read More
  • Amendment5
    • Due Process
    • Eminent Domain
    • Rights of Criminal Defendants
    Read More

Preamble to the Bill of Rights

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Read More

More Recent Posts

  • Supreme Court Holds Debts Incurred by Fraud Are Ineligible for Bankruptcy Relief
  • NJ Supreme Court Rules Campus Police Officer Eligible for Arbitration
  • Lorem ipsum
  • Ketanji Brown Jackson to Join SCOTUS as First Black Female Justice

Constitutional Law Reporter Twitter

A Twitter List by S_H_Law

Constitutional Law Reporter RSS

donald scarinci constitutional law attorney

Editor

Donald Scarinci

Managing Partner

Scarinci Hollenbeck

(201) 806-3364

Awards

con law awards

Follow me

© 2018 Scarinci Hollenbeck, LLC. All rights reserved.

Prior results do not guarantee a similar outcome. Attorney Advertising