Under the common law rule that prevailed before Roth, articulated most famously in the 1868 English caseRegina v. Hicklin, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. Thus, works by Balzac, Flaubert, James Joyce and D. H. Lawrence were banned based on isolated passages and the effect they might have on children. Samuel Roth, who ran a literary business in New York City, was convicted under a federal statute criminalizing the sending of "obscene, lewd, lascivious or filthy" materials through the mail for advertising and selling a publication called American Aphrodite containing literary erotica and nude photography. David Alberts, who ran a mail-order business from Los Angeles, was convicted under a California statute for publishing pictures of "nude and scantily-clad women." The Court granted certiorari and affirmed both convictions.
Ruling
Roth came down as a 6–3 decision, with the opinion of the Court authored by William J. Brennan, Jr.. The Court repudiated the Hicklin test and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" of the "average person, applying contemporary community standards." Only material meeting this test could be banned as "obscene." However, Brennan reaffirmed that obscenity was not protected by the First Amendment and thus upheld the convictions of Roth and Alberts for publishing and sending obscene material through the mail. Congress could ban material, "utterly without redeeming social importance," or in other words, "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." Chief Justice Earl Warren worried that "broad language used here may eventually be applied to the arts and sciences and freedom of communication generally," but, agreeing that obscenity is not constitutionally protected, concurred only in the judgment. Justices Hugo Black and William O. Douglas, First Amendment "literalists," dissented in Roth, arguing vigorously that the First Amendment protected obscene material. Justice John Marshall Harlan II dissented in Roth, involving a federal statute, but concurred in Alberts, involving a state law, on the grounds that while states had broad power to prosecute obscenity, the federal government did not.
Legacy
In Memoirs v. Massachusetts, a plurality of the Court further redefined the Roth test by holding unprotected only that which is "patently offensive" and "utterly without redeeming social value," but no opinion in that case could command a majority of the Court either, and the state of the law in the obscenity field remained confused. Pornography and sexually oriented publications proliferated as a result of the Warren Court's holdings, the "Sexual Revolution" of the 1960s flowered, and pressure increasingly came on the Court to allow leeway for state and local governments to crack down on obscenity. During his ill-fated bid to become Chief Justice, Justice Abe Fortas was attacked vigorously in Congress by conservatives such as Strom Thurmond for siding with the Warren Court majority in liberalizing protection for pornography. In his 1968 presidential campaign, Richard Nixon campaigned against the Warren Court, pledging to appoint "strict constructionists" to the Supreme Court. In Miller v. California, a five-person majority agreed for the first time since Roth as to a test for determining constitutionally unprotected obscenity, thereby superseding the Roth test. By the time Miller was considered in 1973, Justice Brennan had abandoned the Roth test and argued that "no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression."
