Roth v. United States Alberts v. State of California

Citation354 U.S. 476,77 S.Ct. 1304,1 L.Ed.2d 1498
Decision Date24 June 1957
Docket NumberNos. 582,61,s. 582
PartiesSamuel ROTH, Petitioner, v. UNITED STATES of America. David S. ALBERTS, Appellant, v. STATE OF CALIFORNIA
CourtUnited States Supreme Court

No. 61:

[Syllabus from pages 476-478 intentionally omitted] Mr. Stanley Fleishman, Hollywood, Cal., for appellant Alberts.

Mr. Fred N. Whichello, Los Angeles, Cal., and Clarence A. Linn, Asst. Atty. Gen. of California, San Francisco, Cal., for appellee State of California.

No. 582:

Mr. David von G. Albrecht, New York City, and O. John Rogge, Washington, D.C., for petitioner Roth.

Mr. Roger D. Fisher, Washington, D.C., for the United States.

[Amicus Curiae Information from page 478 intentionally omitted] 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, pre-empted 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 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, 24 L.Ed. 877; United States v. Chase, 135 U.S. 255, 261, 10 S.Ct. 756, 758, 34 L.Ed. 117; Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 328, 41 L.Ed. 715; Public Clearing House v. Coyne, 194 U.S. 497, 508, 24 S.Ct. 789, 793, 48 L.Ed. 1092; Hoke v. United States, 227 U.S. 308, 322, 33 S.Ct. 281, 283, 57 L.Ed. 523; Near v. State of Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 768—769, 86 L.Ed. 1031; Hannegan v. Esquire, Inc., 327 U.S. 146, 158, 66 S.Ct. 456, 462, 90 L.Ed. 586; Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840; Beauharnais v. People of State of Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919.9 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 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. People of State of Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919. 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 inhabitants of Quebec:

'The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.' 1 Journals of the Continental Congress 108 (1774).

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.14 But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations,15 in the obscenity laws of all of the 48 States,16 and in the 20 obscenity laws enacted by the Congress from 1842 to 1956.17 This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 769, 86 L.Ed. 1031:

'* * * There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene * * *. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality * * *.' (Emphasis added.)

We hold that obscenity is not within the area of constitutionally protected speech or press.

It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. In Roth, the trial judge instructed the jury: 'The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.' (Emphasis added.) In Alberts, the trial judge applied the test laid down in People v. Wepplo, 78 Cal.App.2d Supp. 959, 178 P.2d 853, 855, namely, whether the material has 'a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires.' (Emphasis added.) It is insisted that the constitutional guaranties are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of antisocial conduct,18 or will probably induce its recipients to such conduct.19 But, in light of our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. People of State of Illinois, supra, 343 U.S. at page 266, 72 S.Ct. at page 735:

'Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' Certainly no one would contend that obscene speech for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.'

However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest.20 The portrayal of sex, e.g., in art, literature and scientific works,21 is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to...

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