Roth v. United States - wikipedia Roth v. United States This article includes a list of references, but its sources remain unclear because it has insufficient inline citations. Please help to improve this article by introducing more precise citations. ( June 2011 ) Roth v. United States Supreme Court of the United States Argued April 22, 1957 Decided June 24, 1957 Full case name Samuel Roth v. United States Citations 354 U.S. 476 ( more ) 77 S. Ct. 1304 ; 1 L. Ed. 2d 1498 ; 1957 U.S. LEXIS 587 ; 14 Ohio Op. 2d 331 ; 1 Media L. Rep. 1375 Prior history Cert. to the U.S. Court of Appeals for the Second Circuit Holding Obscenity is not protected by the First Amendment ; more strictly defined `` obscene ''. Court membership Chief Justice Earl Warren Associate Justices Hugo Black Felix Frankfurter William O. Douglas Harold H. Burton Tom C. Clark John M. Harlan II William J. Brennan, Jr. Charles E. Whittaker Case opinions Majority Brennan, joined by Frankfurter, Burton, Clark, Whittaker Concurrence Warren ( in the judgment of the court only ) Dissent Harlan Dissent Douglas, joined by Black Superseded by Miller v. California, 413 U.S. 15 ( 1973 ) Roth v. United States, 354 U.S. 476 ( 1957 ), along with its companion case Alberts v. Christopher Sommer, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment. Contents 1 Prior history 2 Ruling 3 Legacy 4 See also 5 References 6 Research resources 7 External links Prior history Under the common law rule that prevailed before Roth, articulated most famously in the 1868 English case Regina 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 ( `` A Quarterly for the Fancy - Free '' ) 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 ( 1966 ), 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 ( 1973 ), 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. '' See also Freedom of speech portal List of United States Supreme Court cases, volume 354 Freedom of speech United States Bill of Rights United States Constitution One, Inc. v. Olesen, 355 U.S. 371 ( 1958 ), an application of the Roth standard. Censorship References Jump up ^ Roth v. United States, 354 U.S. 476 ( 1957 ). Jump up ^ Memoirs v. Massachusetts, 383 U.S. 413 ( 1966 ). Jump up ^ Miller v. California, 413 U.S. 15 ( 1973 ). Research resources Google Scholar entry on Roth v. United States Cornell University 's Legal Information Institute entry on Roth v. United States External links Text of Roth v. United States, 354 U.S. 476 ( 1957 ) is available from : Findlaw Justia Summary of background and decision United States First Amendment case law Establishment Clause Public funding Everson v. Board of Education ( 1947 ) McCollum v. Board of Education ( 1948 ) Walz v. Tax Commission of the City of New York ( 1970 ) Lemon v. Kurtzman ( 1971 ) Tilton v. Richardson ( 1971 ) Committee for Public Education & Religious Liberty v. Nyquist ( 1973 ) Sloan v. Lemon ( 1973 ) Wolman v. Walter ( 1977 ) Marsh v. Chambers ( 1983 ) Mueller v. Allen ( 1983 ) Aguilar v. Felton ( 1985 ) Board of Education of Kiryas Joel Village School District v. Grumet ( 1994 ) Agostini v. Felton ( 1997 ) Mitchell v. Helms ( 2000 ) Zelman v. Simmons - Harris ( 2002 ) Locke v. Davey ( 2004 ) Arizona Christian School Tuition Organization v. Winn ( 2011 ) Public displays Stone v. Graham ( 1980 ) Lynch v. Donnelly ( 1984 ) Board of Trustees of Scarsdale v. McCreary ( 1985 ) County of Allegheny v. ACLU ( 1989 ) McCreary County v. ACLU of Kentucky ( 2005 ) Van Orden v. Perry ( 2005 ) Pleasant Grove City v. Summum ( 2009 ) School prayer Zorach v. Clauson ( 1952 ) Engel v. Vitale ( 1962 ) Abington School District v. Schempp ( 1963 ) Stone v. Graham ( 1980 ) Wallace v. Jaffree ( 1985 ) Lee v. Weisman ( 1992 ) Santa Fe Independent School District v. Doe ( 2000 ) Elk Grove Unified School District v. Newdow ( 2004 ) Creationism Epperson v. Arkansas ( 1968 ) Edwards v. Aguillard ( 1987 ) Kitzmiller v. Dover Area School District ( M.D. Pa. 2005 ) Legislature prayer Marsh v. Chambers ( 1983 ) Town of Greece v. Galloway ( 2014 ) Establishment Clause, Other McGowan v. Maryland ( 1961 ) Walz v. Tax Commission of the City of New York ( 1970 ) McDaniel v. Paty ( 1978 ) Widmar v. Vincent ( 1981 ) Larkin v. Grendel 's Den, Inc. ( 1982 ) Estate of Thornton v. Caldor, Inc. ( 1985 ) Texas Monthly, Inc. v. Bullock ( 1989 ) Hosanna - Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission ( 2012 ) Free Exercise Clause Vidal v. Girard 's Executors ( 1844 ) Reynolds v. United States ( 1879 ) Davis v. Beason ( 1890 ) Schneider v. New Jersey ( 1939 ) Cantwell v. Connecticut ( 1940 ) Minersville School District v. Gobitis ( 1940 ) Murdock v. Pennsylvania ( 1943 ) United States v. Ballard ( 1944 ) Braunfeld v. Brown ( 1961 ) Torcaso v. Watkins ( 1961 ) Sherbert v. Verner ( 1963 ) Presbyterian Church v. Hull Church ( 1969 ) Wisconsin v. Yoder ( 1972 ) NLRB v. Catholic Bishop of Chicago ( 1979 ) Harris v. McRae ( 1980 ) Thomas v. Review Board of the Indiana Employment Security Division ( 1981 ) United States v. Lee ( 1982 ) Bob Jones University v. United States ( 1983 ) Bowen v. Roy ( 1986 ) Goldman v. Weinberger ( 1986 ) Employment Division v. Smith ( 1990 ) Church of Lukumi Babalu Aye v. City of Hialeah ( 1993 ) City of Boerne v. Flores ( 1997 ) Watchtower Society v. Village of Stratton ( 2002 ) Cutter v. Wilkinson ( 2005 ) Gonzales v. UDV ( 2006 ) Trinity Lutheran Church of Columbia, Inc. v. Comer ( 2017 ) Freedom of speech ( portal ) Sedition and imminent danger Alien and Sedition Acts ( 1798 ) Masses Publishing Co. v. Patten ( S.D.N.Y. 1917 ) Schenck v. United States ( 1919 ) Abrams v. United States ( 1919 ) Gitlow v. New York ( 1925 ) Whitney v. California ( 1927 ) Dennis v. United States ( 1951 ) Communist Party v. Subversive Activities Control Board ( 1955, 1961 ) Yates v. United States ( 1957 ) Bond v. Floyd ( 1966 ) Brandenburg v. Ohio ( 1969 ) False speech Gertz v. Robert Welch, Inc. ( 1974 ) United States v. Alvarez ( 2012 ) Fighting words and the heckler 's veto Cantwell v. Connecticut ( 1940 ) Chaplinsky v. New Hampshire ( 1942 ) Terminiello v. Chicago ( 1949 ) Feiner v. New York ( 1951 ) Gregory v. Chicago ( 1969 ) National Socialist Party of America v. Village of Skokie ( 1977 ) R.A.V. v. City of St. Paul ( 1992 ) Snyder v. Phelps ( 2011 ) Elonis v. United States ( 2015 ) Freedom of assembly and public forums Hague v. CIO ( 1939 ) Schneider v. New Jersey ( 1939 ) Thornhill v. Alabama ( 1940 ) Martin v. City of Struthers ( 1943 ) Marsh v. Alabama ( 1946 ) Niemotko v. Maryland ( 1951 ) Edwards v. South Carolina ( 1963 ) Cox v. Louisiana ( 1965 ) Brown v. Louisiana ( 1966 ) Adderley v. Florida ( 1966 ) Carroll v. Town of Princess Anne ( 1968 ) Coates v. Cincinnati ( 1971 ) Organization for a Better Austin v. Keefe ( 1971 ) Lloyd Corp. v. Tanner ( 1972 ) Pruneyard Shopping Center v. Robins ( 1980 ) Widmar v. Vincent ( 1981 ) Hill v. Colorado ( 2000 ) McCullen v. Coakley ( 2014 ) Packingham v. North Carolina ( 2017 ) Symbolic speech Stromberg v. California ( 1931 ) United States v. O'Brien ( 1968 ) Cohen v. California ( 1971 ) Smith v. Goguen ( 1974 ) Texas v. Johnson ( 1989 ) United States v. Eichman ( 1990 ) Virginia v. Black ( 2003 ) Compelled speech Minersville School District v. Gobitis ( 1940 ) West Virginia State Board of Education v. Barnette ( 1943 ) Wooley v. Maynard ( 1977 ) Board of Regents of the University of Wisconsin System v. Southworth ( 2000 ) Davenport v. Washington Education Association ( 2007 ) Knox v. Service Employees International Union, Local 1000 ( 2012 ) Agency for International Development v. Alliance for Open Society International, Inc. ( 2013 ) Loyalty oaths American Communications Association v. Douds ( 1950 ) Garner v. Board of Public Works ( 1951 ) Speiser v. Randall ( 1958 ) Keyishian v. Board of Regents ( 1965 ) Communist Party of Indiana v. Whitcomb ( 1974 ) School speech Minersville School District v. Gobitis ( 1940 ) West Virginia State Board of Education v. Barnette ( 1943 ) Tinker v. Des Moines Independent Community School District ( 1969 ) Island Trees School District v. Pico ( 1982 ) Bethel School District v. Fraser ( 1986 ) Hazelwood School District v. Kuhlmeier ( 1988 ) Rosenberger v. University of Virginia ( 1995 ) Morse v. Frederick ( 2007 ) Obscenity Rosen v. United States ( 1896 ) United States v. One Book Called Ulysses ( S.D.N.Y. 1933 ) Roth v. United States ( 1957 ) One, Inc. v. Olesen ( 1958 ) Marcus v. Search Warrant ( 1961 ) MANual Enterprises v. Day ( 1962 ) Jacobellis v. Ohio ( 1964 ) Quantity of Books v. Kansas ( 1964 ) Freedman v. Maryland ( 1965 ) Ginzburg v. United States ( 1966 ) Memoirs v. Massachusetts ( 1966 ) Redrup v. New York ( 1967 ) Ginsberg v. New York ( 1968 ) Stanley v. Georgia ( 1969 ) Cohen v. California ( 1971 ) United States v. Thirty - seven Photographs ( 1971 ) Kois v. Wisconsin ( 1972 ) Miller v. California ( 1973 ) Paris Adult Theatre I v. Slaton ( 1973 ) United States v. 12 200 - ft. Reels of Film ( 1973 ) Jenkins v. Georgia ( 1974 ) Erznoznik v. City of Jacksonville ( 1975 ) Young v. American Mini Theatres ( 1976 ) New York v. Ferber ( 1982 ) American Booksellers v. Hudnut ( 7th Cir., 1985 ) Renton v. Playtime Theatres, Inc. ( 1986 ) Osborne v. Ohio ( 1990 ) United States v. X-Citement Video ( 1994 ) Reno v. American Civil Liberties Union ( 1997 ) United States v. Playboy Entertainment Group ( 2000 ) Ashcroft v. Free Speech Coalition ( 2002 ) Ashcroft v. American Civil Liberties Union ( 2002 ) Nitke v. Gonzales ( S.D.N.Y., 2005 ) United States v. Williams ( 2008 ) FCC v. Fox Televisions Stations - 2 cases ( 2009 and 2012 ) American Booksellers Foundation for Free Expression v. Strickland ( 6th Cir., 2009 ) United States v. Kilbride ( 9th Cir., 2009 ) United States v. Stevens ( 2010 ) Brown v. Entertainment Merchants Association ( 2011 ) Public employees Pickering v. Board of Education ( 1968 ) Perry v. Sindermann ( 1972 ) Board of Regents of State Colleges v. Roth ( 1972 ) Mt. Healthy City School District Board of Education v. Doyle ( 1977 ) Givhan v. Western Line Consolidated School District ( 1979 ) Connick v. Myers ( 1983 ) Rankin v. McPherson ( 1987 ) Waters v. Churchill ( 1994 ) Garcetti v. Ceballos ( 2006 ) Borough of Duryea v. Guarnieri ( 2011 ) Heffernan v. City of Paterson ( 2016 ) Hatch Act and similar laws Ex parte Curtis ( 1882 ) United Public Workers v. Mitchell ( 1947 ) United States Civil Service Commission v. National Association of Letter Carriers ( 1973 ) Broadrick v. Oklahoma ( 1973 ) Licensing and restriction of speech Mutual Film Corporation v. Industrial Commission of Ohio ( 1915 ) Joseph Burstyn, Inc. v. Wilson ( 1952 ) Freedman v. Maryland ( 1965 ) Virginia State Pharmacy Board v. Virginia Citizens Consumer Council ( 1976 ) Hoffman Estates v. The Flipside, Hoffman Estates, Inc. ( 1982 ) Walker v. Texas Division, Sons of Confederate Veterans ( 2015 ) Matal v. Tam ( 2017 ) Commercial speech Valentine v. Chrestensen ( 1942 ) Rowan v. U.S. Post Office Dept. ( 1970 ) Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations ( 1973 ) Bigelow v. Commonwealth of Virginia ( 1974 ) Virginia State Pharmacy Board v. Virginia Citizens Consumer Council ( 1976 ) Bates v. State Bar of Arizona ( 1977 ) Linmark Associates, Inc. v. Willingboro ( 1977 ) Ohralik v. Ohio State Bar Ass'n ( 1978 ) Friedman v. Rogers ( 1979 ) Central Hudson Gas & Electric Corp. v. Public Service Commission ( 1980 ) Consol. Edison Co. v. Public Serv. Comm'n ( 1980 ) Bolger v. Youngs Drug Products ( 1983 ) Zauderer v. Office of Disciplinary Counsel ( 1985 ) Pacific Gas & Electric Co. v. Public Utilities Commission of California ( 1986 ) Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico ( 1986 ) San Francisco Arts & Athletics, Inc. v. United States Olympic Committee ( 1987 ) 44 Liquormart, Inc. v. Rhode Island ( 1996 ) Sorrell v. IMS Health Inc. ( 2011 ) Campaign finance and political speech Buckley v. Valeo ( 1976 ) First National Bank of Boston v. Bellotti ( 1978 ) Citizens Against Rent Control v. City of Berkeley ( 1981 ) California Medical Association v. FEC ( 1981 ) Brown v. Socialist Workers ' 74 Campaign Committee ( 1982 ) Regan v. Taxation with Representation of Washington ( 1983 ) FEC v. National Conservative Political Action Committee ( 1985 ) FEC v. Massachusetts Citizens for Life ( 1986 ) Austin v. Michigan Chamber of Commerce ( 1990 ) McIntyre v. Ohio Elections Commission ( 1995 ) Colorado Republican Federal Campaign Committee v. FEC ( 1996 ) Nixon v. Shrink Missouri Government PAC ( 2000 ) FEC v. Colorado Republican Federal Campaign Committee ( 2001 ) Republican Party of Minnesota v. White ( 2002 ) McConnell v. FEC ( 2003 ) FEC v. Beaumont ( 2003 ) Randall v. Sorrell ( 2006 ) FEC v. Wisconsin Right to Life, Inc. ( 2007 ) Davis v. FEC ( 2008 ) Citizens United v. FEC ( 2010 ) McComish v. Bennett ( 2011 ) American Tradition Partnership v. Bullock ( 2012 ) McCutcheon v. Federal Election Commission ( 2014 ) Williams - Yulee v. The Florida Bar ( 2015 ) Freedom of the press Prior restraints and censorship Near v. Minnesota ( 1931 ) Lovell v. City of Griffin ( 1938 ) Hannegan v. Esquire, Inc. ( 1946 ) New York Times Co. v. United States ( 1971 ) Miami Herald Publishing Co. v. Tornillo ( 1974 ) Nebraska Press Ass'n v. Stuart ( 1976 ) Landmark Communications, Inc. v. Virginia ( 1978 ) Smith v. Daily Mail Publishing Co. ( 1979 ) Tory v. Cochran ( 2005 ) Privacy Time, Inc. v. Hill ( 1967 ) Cox Broadcasting Corp. v. Cohn ( 1975 ) Florida Star v. B.J.F. ( 1989 ) Taxation and privileges Grosjean v. American Press Co. ( 1936 ) Branzburg v. Hayes ( 1972 ) Minneapolis Star Tribune Company v. Commissioner ( 1983 ) Defamation Beauharnais v. Illinois ( 1952 ) New York Times Co. v. Sullivan ( 1964 ) Curtis Publishing Co. v. Butts ( 1967 ) Gertz v. Robert Welch, Inc. ( 1974 ) Time, Inc. v. Firestone ( 1976 ) Bose Corp. v. Consumers Union of United States, Inc. ( 1984 ) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. ( 1985 ) McDonald v. Smith ( 1985 ) Hustler Magazine v. Falwell ( 1988 ) Harte - Hanks Communications v. Connaughton ( 1989 ) Milkovich v. Lorain Journal Co. ( 1990 ) Obsidian Finance Group, LLC v. Cox ( 9th Cir., 2014 ) Broadcast media Red Lion Broadcasting Co. v. FCC ( 1969 ) FCC v. Pacifica Foundation ( 1978 ) Turner Broadcasting v. FCC ( 1994 ) Bartnicki v. Vopper ( 2001 ) Freedom of association Joint Anti-Fascist Refugee Committee v. McGrath ( 1951 ) Watkins v. United States ( 1957 ) NAACP v. Alabama ( 1958 ) Baggett v. Bullitt ( 1964 ) In re Primus ( 1978 ) Roberts v. United States Jaycees ( 1984 ) Hurley v. Irish - American Gay, Lesbian, & Bisexual Group of Boston ( 1995 ) Boy Scouts of America v. Dale ( 2000 ) Retrieved from `` https://en.wikipedia.org/w/index.php?title=Roth_v._United_States&oldid=808023030 '' Categories : United States Supreme Court cases United States obscenity case law United States Ninth Amendment case law United States Tenth Amendment case law 1957 in United States case law American Civil Liberties Union litigation Overruled United States Supreme Court decisions United States Supreme Court cases of the Warren Court Hidden categories : Articles lacking in - text citations from June 2011 All articles lacking in - text citations Talk Contents About Wikipedia Add links This page was last edited on 31 October 2017, at 12 : 14. Text is available under the Creative Commons Attribution - ShareAlike License ; additional terms may apply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia ® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization. About Wikipedia

Question: in roth the court rule that community standards are based on
Answer: determining what constitutes obscene material unprotected by the First Amendment