Roth v. The United States, 354 U.S. 476 (1957) No. 582 Ar !

ed" A#ri$ 22, 1957

%e&ided" '!ne 24, 1957 (1). The defendant was Samuel Roth, of New York City. The Justices who were involved were Justice William J. Brennan, Justice arshall

!arlan, Justice William ". #ou$las, Justice !u$o %. Black, and Chief Justice &arl Warren. The lawyers for the defendant were #avid von '. (l)recht and ". John Ro$$e. The lawyer re*resentin$ the +nited States was Ro$er #. ,isher -./. Samuel Roth owned and o*erated a New York City )ook store. !is method of marketin$ involved mailin$ out su$$estive or *orno$ra*hic advertisement materials to *otential demo$ra*hics. !e was convicted on that $rounds that ,ederal %aw *rohi)its the mailin$ of 0every o)scene, lewd, lascivious, or filthy )ook, *am*hlet, *icture, *a*er, letter, writin$, *rint, or other *u)lication of an indecent character.1 -2/ The first Court that heard this case was in the #istrict Court for the Southern #istrict of New York. Roth was found $uilty u*on four accounts of a 345count indictment for mailin$ o)scene materials -3/. Roth o*ted to a**eal on the $rounds that his conviction was unconstitutional. !is claim was that *orno$ra*hic or se6ually oriented materials were *rotected )y the sco*e of ,reedom of S*eech covered within the ,irst (mendment -2/.

Sa(!e$ Roth, A##e$$ant No. 387, %o&)et 24*3*. United States +o!rt o, A##ea$s 2nd +ir&!it Ar !ed" '!ne 6, 1956 %e&ided" Se#te(-er 18, 1956 The +o!rt o, A##ea$s r!$ed to rant Roth a .rit o, +ertiorari. Roth held his $round that his advertisements were covered under ,reedom of S*eech Ri$hts. !is main ar$ument was the use of the word 0filthy.1 Roth claimed that filthy 0*lainly covered se6ual matters8 and the court had no occasion to consider whether filthy mattered of a different character to fall within *rohi)ition.1 !is stance was that it was not for the courts to *rohi)it such material. !owever, the 9ud$e:s o**osition was that 0filthy1 is very clear in its conce*t, and that it did fall into the 9udiciary sco*e of $overnance. !e stated, 0;,ilthy: is as clear and easily understanda)le )y the 9ury as the terms ;o)scene: and ;lewd: already committed to its care.1 (lso, the 9ud$e claimed that neither the defendant, nor the attorney $ave contention to this claim. !e further stated, 0Since no re<uest for se*arate verdicts or for withdrawal of this issue from the 9ury was made, the conviction must stand as su**orted )y the clear evidence of o)scenity.1 Never5the5less, Roth was $ranted his a**eal on January 7=, 7>.2 -?/. "n June 3=, 7>.2, in the case of Roth v. The United States No. .@3, The Su*reme Court ruled that o)scene material is not covered within the sco*e of the ,irst (mendment. The Su*reme Court vote was 4 5?8 denyin$ the claim of ,irst (mendment *rotection -./.

The case was heard simultaneously to the case of Alberts v. California ?.= +.S. =24 No. 47 -7>.2/. That case involved the California law *rohi)itin$ the sale and advertisin$ of o)scene )ooks, which was ruled denial of ,irst (mendment *rotection, as well -4/. ,or the ma9ority, Justice Brennan held that historical evidence showed that the ,oundin$ ,athers created the ,irst (mendment only to *rotect the domains of *olitical, social and reli$ious s*eech. This was )ased on that fact that the ori$inal states *assed laws that restricted o*en o)scenity. !is *osition claimed that *rior cases $enerally ruled o)scenity was not free s*eech, since it does not consist of any value within the free market *lace of ideas -4/. !e stated, 0The *rotection $iven s*eech and *ress was fashioned to assure the unfettered interchan$e of ideas for )rin$in$ a)out *olitical and social chan$es desired )y the Aeo*le.1 -7/ Justice Brennan went on to im*ly that se6 and o)scenity are not one5and5the5same. !e claimed that ideas *ertainin$ to se6 do have ,irst (mendment *rotection. !e e6*lained that the difference is that the s*eech is considered o)scene if it is conveyed in an attention5 $ra))in$ vul$ar manner8 in which case it falls into the sco*e that is not covered )y the ,irst (mendment *rotection -2/. !e stated, 0")scene material is material which deals with se6 in a manner a**ealin$ to *rurient interest5 i.e., material havin$ tendency to e6cite lustful thou$hts.1 -7/ (lso, the Court re9ected the a**ellant:s due *rocess o)9ections, since they )elieved that the trial courts *ro*erly 9ud$ed the standard for o)scenity. (fter all, the issue was not for the Court to set the $uidelines for o)scenity -4/. Justice Brennan stated, 0Bn these cases, )oth trial courts sufficiently followed the *ro*er standard and used the *ro*er definition of o)scenity.1 -7/
?

Chief Justice Warren concurred with the ma9ority rulin$, however he felt it was necessary to limit the sco*e of the court:s o*inion. !e stated, 0We are o*eratin$ in a field of e6*ression and )ecause )road lan$ua$e used here may eventually )e a**lied to the art and sciences and freedom of communication8 $enerally, B would limit our decision.1 -7/ Bn retros*ect, while Justice !arlan had concurred with the (l)erts case decision, he dissented with the Roth case decision. !is *osition was that the elastic clause should retract itself in this matter, renderin$ more 9udicial involvement to the states: res*onsi)ility. (lso, he )elieved that each o)scenity work should )e determined se*arately -4/. !is statement was, 0Such *owers as the ,ederal 'overnment has in this field are )ut incidental to its other *owers, here the *ostal *ower, and one not of the same nature as those *osed )y the states which )ear direct res*onsi)ility for the *rotection of the local moral fa)ric.1 -7/ Conclusively, )oth Justice #ou$las and Justice Black dissented in )oth cases. They )elieved that o)scenity did fall into the sco*e of ,reedom of S*eech. They held that the 9ud$ment was )ased u*on reactive thou$hts to the messa$e received )y the readers. They ar$ued that se6ual thou$hts are a *art of human nature and that one shouldn:t )e *unished for tri$$erin$ thou$hts, as if they were *hysical actions. (lso, they contended that the rulin$ could e6*and to other *otentially unnecessary rulin$s that would violate the ,irst (mendment -2/. Their statement was 0By these standards *unishment is inflicted for thou$hts *rovoked, not for overt acts, nor for antisocial conduct. This test cannot )e s<uared with our decisions under the ,irst (mendment.1 -7/ Roth v. The United States was the catalyst for settin$ the definition of o)scenity in local standards. (fter the case:s rulin$, o)scenity cases would $o on to na$ the Court for another fourteen years. (lthou$h the ,irst (mendment had the initial intent of *rotectin$
=

*olitical and reli$ious s*eech, it has since )een e6tended to *rotectin$ the s*eech in which some would deem as morally wron$. This case would )ecome the )asis for another landmark caseC Miller v California -7>2?/. This $ave more *ower to the states concernin$ cases of o)scenity. The rulin$ added that materials 0which *ortray se6ual conduct in a *atently offensive way, and which, taken as a whole, do not have scientific value.1 -=/ This case determined the casin$ and restrictions of *orno$ra*hic materials in )ook stores or convenient stores. (nother case that would add to o)scenity standards and violations was the FCC v. Pacifica Foundation -7>2@/, which involved the Aacifica radio station *layin$ the 'eor$e Carlin monolo$ue Seven Dirty Words You Can t Say !n Radio. The Su*reme Court ruled that the ,CC can sus*end radio licenses to stations that use o)scene words since radio is the least *rotected )y the ,irst (mendment due to its o*en accessi)ility. Bt held that a nuisance which is deemed as 0o)scene, indecent, or *rofane1 may 0)e merely a ri$ht thin$ in the wron$ *lace.1 -=/ Bndecency and o)scenity rules were restricted even ti$hter after the accident involvin$ the e6*osure of Janet Jackson:s )reast durin$ the 3DD= Su*er Bowl !alftime Show. (fter that incident, Con$ress voted to increase violation fines )y ten times the *revious amount -=/. The ne6t landmark Su*reme Court rulin$ is any station:s or *u)lication:s $uess.

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7.htt*CEEcaselaw.l*.findlaw.comEc$i5)inE$etcase.*lFcourtGusHinvolG=24 3.htt*CEElawschool.courtroomview.comEactIcasesE>2225roth5v5united5states
?.htt*CEEo*en9urist.or$E3?2Ef3dE2>4Eunited5states5v5roth

=.Strau)haar, Jose*h, Ro)ert %aRose, %ucinda #aven*ort.

edia NowC +nderstandin$

edia, Culture, and Technolo$y 4th ed. BostonC Wadsworth, 3DD> *$C ==@, ==>, =.D ..htt*CEEwww.firstamdenmentcenter.or$Efacli)raryEcase.as*6FcaseGRothIvIus . 4.htt*CEEwww.novel$uide.comEaEdiscoverEeamcID.EeamcID.ID33D?.html 2.htt*CEEwww.<uim)ee.comEinde6.*h*E<uim)eEcaseIdetailERothJ3DJ3Dv. J3DJ3DJ3D+nitedJ3DStatesE2D2D>@