Roth vs. United States A.
Roth
354 US 476
1957
Facts:
A. Mr. Roth
1. Mr. Roth operated a business in New York, dealing in books
and magazines of explicate sexual nature.
2. He advertised his business through sending mailed circulars.
3. He was convicted in the Southern District Court of New York
for four counts of using mails in sending obscene
advertisement, circulars, and obscene books.
4. He appealed to the 2nd Court of Appeals, which upheld the
conviction.
B. Mr. Alberts
1. Mr. Alberts was engaged at mail order business of books and
magazines of explicate sexual nature.
2. He was convicted under the California Penal Code for
misdemeanor.
3. He appealed to the Appellate Department of the Superior Court
of the State of Californina.
Petitioners’ Arguments:
The statutes do not provide reasonably ascertainable standards of
guilt, and therefore violates the constitutional requirements of due process...
The federal obscenity statute makes punishable the mailing of material that
is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent
character." The California statute makes punishable...the keeping for sale or
advertising material that is "obscene or indecent." The thrust of the argument
is that these words are not sufficiently precise, because they do not mean
the same thing to all people, all the time, everywhere.
Issue:
Whether obscenity is utterance within the area of protected speech and
press
Whether the federal obscenity statute violates the
provision of the First Amendment that "Congress shall make no law
abridging the freedom of speech, or of the press
B. Alberts
Whether the obscenity provisions of the California Penal
Code 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
Ruling:
The early leading standard of obscenity allowed material to be
judged merely by the effect of an isolated excerpt upon particularly
susceptible persons... Some American courts adopted this standard, but
later decisions have rejected it and substituted this test: whether, to the
average person, applying contemporary community standards, the dominant
theme of the material, taken as a whole, appeals to prurient interest. The
Hicklin test, judging obscenity by the effect of isolated passages upon the
most susceptible persons, might well encompass material legitimately
treating with sex, and so it must be rejected as unconstitutionally restrictive
of the freedoms of speech and press. On the other hand, the substituted
standard provides safeguards adequate to withstand the charge of
constitutional infirmity.
Both trial courts below sufficiently followed the proper standard.
Both courts used the proper definition of obscenity. In addition, in the Alberts
case, in ruling on a motion to dismiss, the trial judge indicated that, as the
trier of facts, he was judging each item as a whole as it would affect the
normal person, and, in Roth, the trial judge instructed the jury as follows:
“. . . The test is not whether it would arouse sexual desires or
sexual impure thoughts in those comprising a particular segment of the
community, the young, the immature or the highly prudish or would leave
another segment, the scientific or highly educated or the so called worldly
wise and sophisticated indifferent and unmoved...
 “The test in each case is the effect of the book, picture or
publication considered as a whole not upon any particular class, but upon
all those whom it is likely to reach. In other words, you determine its
impact upon the average person in the community. The books, pictures
and circulars must be judged as a whole, in their entire context, and you
are not to consider detached or separate portions in reaching a
conclusion. You judge the circulars, pictures and publications which have
been put in evidence by present-day standards of the community. You
may ask yourselves does it offend the common conscience of the
community by present-day standards... “In this case, ladies and
gentlemen of the jury, you and you alone are the exclusive judges of what
the common conscience of the community is, and, in determining that
conscience, you are to consider the community as a whole, young and
old, educated and uneducated, the religious and the irreligious -- men,
women and children.”