Summary of Roth v. United States and Alberts v. California
354 U.S. 476, 77 S.Ct. 1304 (1957)

Facts: Samuel Roth was charged with violating a federal statute making it a crime to send pornographic or obscene materials through the mail. He had gotten in trouble and been convicted for advertising and selling a magazine called American Aphrodite, which contained literary erotica and nude pictures, but ended up being acquitted on the charge that the photographs were obscene. David Alberts was indicted and convicted under California's obscenity law for publishing pictures of nude and scantily-clad women. His works had no claim to literary aspirations. On appeal of their convictions to the Supreme Court, Justice Brennan, who had just arrived there nine months previously, consolidated their cases in the Warren Court's landmark ruling and opinion.

Questions: Is obscenity utterance/included within the area of protected speech and press? Are these actions excludable from the full protection of guaranties because they encroach upon the limited area of more important interests? When and where is the line between sex and obscenity drawn? How far and on what terms should the state and federal government have power to punish individuals for disseminating books, magazines, or other materials considered to be undesirable because of their nature of supposed deleterious effect upon human conduct?

Ruling: The court ruled 6-3 in Roth and 7-2 in Alberts.

Opinion of the Court (Brennan): Roth had already been convicted on 4 counts of a 26-count indictment charging him with mailing obscene circulars advertising, and an obscene book, in violation of the federal obscenity statute. “The federal obscenity statute does not itself contain as express definition of obscenity. However, in the landmark case of Miller V. California, 413 U.S. 15 (1973), the Supreme Court established a test/definition of obscenity that is now implicitly incorporated into the federal statute: (a) whether “the average person, applying contemporary community standards” would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state or federal law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.-

Alberts was convicted under a misdemeanor complaint that 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. Both of these convictions were confirmed.

Sex and obscenity are not synonymous and it is the court's duty to set landmarks in order to control obscenity while still keeping in mind the guaranties of the first amendment.

Concurring Opinion (Warren): The line between pornographic and sexual is hard to distinguish; it is not a precise science. Present laws depend mainly on the reaction of the recipients of this sexually oriented information or whatever it may be. However, one has to keep something in mind, the conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character.

Concurring in part and dissenting in part opinion (Harlan): Concurring in the case of Alberts v People of California, this distribution of obscene materials in this case is not protected by rights guarantied in the first amendment because they served to deprave and corrupts the reader. Dissenting in the case of Roth v. United States, the domain of sexual morality is pre-eminently a matter of state concern and this court should not interfere with state legislation calculated to protect that morality.

Dissenting opinion (Douglas and Black): The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position.