354 U.S. 476 (1957), 582, Roth v. United States
|Docket Nº:||No. 582|
|Citation:||354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498|
|Party Name:||Roth v. United States|
|Case Date:||June 24, 1957|
|Court:||United States Supreme Court|
Argued April 22, 1957
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
1. In the Roth case, 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," and Roth's conviction thereunder for mailing an obscene book and obscene circulars and advertising, are sustained. Pp. 479-494.
2. In the Albert case, the constitutionality of § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale, or to advertise, material that is "obscene or indecent," and Alberts' conviction thereunder for lewdly keeping for sale obscene and indecent books and for writing, composing, and publishing an obscene advertisement of them, are sustained. Pp. 479-494.
3. 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. Pp. 481-485.
(a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 482-483.
(b) The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. P. 484.
(c) 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. Pp. 484-485.
4. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges' instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct. Beauharnais v. Illinois, 343 U.S. 250. Pp. 485-490.
(a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest -- i.e., material having a tendency to excite lustful thoughts. P. 487.
(b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. Pp. 487-488.
(c) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. Pp. 488-489.
(d) In these cases, both trial courts sufficiently followed the proper standard and used the proper definition of obscenity. Pp. 489-490.
5. When applied according to the proper standard for judging obscenity, 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," does not (1) violate the freedom of speech or press guaranteed by the First Amendment, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 491-492.
6. When applied according to the proper standard for judging obscenity, § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale or to advertise material that is "obscene or indecent," does not (1) violate the freedom of speech or press guaranteed by the Fourteenth Amendment against encroachment by the States, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 491-492.
7. The federal obscenity statute, 18 U.S.C. § 1461, punishing the use of the mails for obscene material, is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7, and it
does not unconstitutionally encroach upon the powers reserved to the States by the Ninth and Tenth Amendments. Pp. 492-493.
8. The California obscenity statute here involved is not repugnant to Art. I, § 8, cl. 7, since it does not impose a burden upon, or interfere with, the federal postal functions -- even when applied to a mail-order business. Pp. 493-494.
237 F.2d 796, affirmed.
138 Cal.App.2d Supp. 909, 292 P.2d 90, affirmed.
BRENNAN, J., lead opinion
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the federal obscenity statute1 violates the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code2 invade the freedoms of speech and press as they may be incorporated in
the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.
Other constitutional questions are: whether these statutes violate due process,3 because too vague to support conviction for crime; whether power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth), and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, § 8, cl. 7, to establish post offices and post roads, preempted the regulation of the subject matter (raised in Alberts).
Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals for the Second Circuit.4 We granted certiorari.5
Alberts conducted a mail-order business from Los Angeles. He was convicted by the Judge of the Municipal Court [77 S.Ct. 1307] of the Beverly Hills Judicial District (having waived a jury trial) under a misdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent books, and with writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code. The conviction was affirmed by the Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles.6 We noted probable jurisdiction.7
The dispositive question is whether obscenity is utterance within the area of protected speech and press.8 Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Ex parte Jackson, 96 U.S. 727, 736-737; United States v. Chase, 135 U.S. 255, 261; Robertson v. Baldwin, 165 U.S. 275, 281; Public Clearing House v. Coyne, 194 U.S. 497, 508; Hoke v. United States, 227 U.S. 308, 322; Near v. Minnesota, 283 U.S. 697, 716; Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572; Hannegan v. Esquire Inc., 327 U.S. 146, 158; Winters v. New York, 333 U.S. 507, 510; Beauharnais v. Illinois, 343 U.S. 250, 266.9
The guaranties of freedom of expression10 in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel,11 and all of those States made [77 S.Ct. 1308] either blasphemy or profanity, or both, statutory crimes.12 As early as
1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass.Bay Colony Charters & Laws 399 (1814). Thus, profanity and obscenity were related offenses.
In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U.S. 250, 266. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press.13
The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the...
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