Roth v. United States

Following is the case brief for Roth v. United States, 354 U.S. 476 (1957)

Case Summary of Roth v. United States:

  • This case consolidates two criminal convictions for obscenity.
  • In the Roth case, a publisher was prosecuted under a federal law, which made it a crime to mail an obscene book.  In the Alberts case, a man was prosecuted under a California state law for selling obscene books.
  • Roth was convicted after a jury trial in District Court, and the conviction was affirmed on appeal.  Alberts was convicted of a misdemeanor, and that conviction was affirmed by a California appellate court.
  • The U.S. Supreme Court affirmed the convictions, holding that obscene speech is not protected by the First Amendment.  It further determined that the standard for obscenity is “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”

Roth v. United States Case Brief

Statement of the Facts:

This case involves two different criminal obscenity convictions:

First, in the Roth case, a New York publisher was convicted by a jury in the Southern District of New York for mailing obscene circulars and advertising, and for mailing an obscene book in violation of a federal obscenity statute.  The obscenity statute in that case used the words “obscene, lewd and lascivious,” which the trial court noted “signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.”

Second, in the Alberts case, Alberts conducted a mail-order business from Los Angeles.  He was convicted for lewdly keeping for sale obscene and indecent books, with obscene advertisements in them.  The California obscenity statute in that case defined obscenity by whether the material had a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires.

Procedural History:

  • In Roth, following Roth’s conviction by jury, the Second Circuit Court of Appeals affirmed the conviction.
  • In Alberts, following his conviction for a misdemeanor, a California appellate court affirmed his conviction.
  • The U.S. Supreme Court granted certiorari in Roth, and noted probable jurisdiction in Alberts, and consolidated the cases.

Issue and Holding:

Does the First Amendment protect obscene speech?  No.


The decisions of the Second Circuit Court of Appeals and the California Appellate Department for Los Angeles County are affirmed.

Rule of Law or Legal Principle Applied:

Obscene material – which is material that, when taken as a whole, appeals to prurient interest to the average person applying contemporary community standards – is not speech that is protected by the First Amendment.


Despite the fact that the First Amendment speaks in absolute terms – “Congress shall make no law . . . abridging freedom of speech” – obscene material has not been considered protected speech since the beginning of this nation, and every State in the country has passed obscenity laws.  Thus, the First Amendment was not intended to protect every utterance.  Accordingly, the Court holds that obscenity is not speech that is protected by the Constitution.

Obscenity has little to no social value.  To distinguish obscenity from protected speech, the standard should be “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”

The obscenity statutes at issue in Roth and Alberts both are similar enough to the standard above to pass constitutional muster.  Also, neither statute is too vague as to violate due process.  Further, the argument by Roth that the federal obscenity statute unconstitutionally encroaches on State power under the Ninth and Tenth Amendments, fails because obscenity is not expression that is protected by the First Amendment.  Thus, the federal statute is a proper exercise of the postal power, where use of the mails for obscene material can be punished.

Concurring and Dissenting Opinions:

Concurring in the Result (Warren):

While the convictions should be affirmed on the facts of these cases, the broad obscenity standard announced by the Court may improperly be used to stifle valuable artistic and scientific communication.  The decision by the Court should be limited to the facts in these specific cases.

Concurring in the Alberts Result, Dissenting in the Roth Result (Harlan):

There are three main problems with the Court’s opinion.  First, the Court’s standard is so broad that it may loosen the notion of obscenity too much, and may prohibit true works of art as if they were obscene material.  Second, there were real factual differences between the two cases here, and the constitutional considerations of each cannot be lumped together as the Court has done.  Third, there are real differences between each of the obscenity statutes at issue and the obscenity standard announced by the Court.

Dissenting Opinion (Douglas):

Each of the statutes in these cases, and the Court’s opinion, prohibit speech that engenders impure thoughts.  That is not enough to put some expression outside the protection of the First Amendment.  The only expression that should not enjoy First Amendment protection is that type of speech that engenders bad, or criminal, action.    


Roth v. United States is a landmark First Amendment case because it was the first time the Court squarely addressed the question of whether obscene expression is protected by the First Amendment, holding that it is not.  The standard provided in Justice Brennan’s majority opinion also became the prevailing obscenity standard until the Court decided Miller v. California, which provided a more concrete analysis.  The real legacy of this case, however, was that courts for years until Miller was decided had to determine whether something was obscene on a case-by-case basis.

Student Resources:

Read the Court’s Full Opinion

Listen to the Oral Argument