In 1953, when Justice William Brennan sat on the New Jersey Supreme Court, he wrote in Adams Theatre Co. v. Keenan (1953), ‘‘The standard ‘lewd and ‘indecent’ is amorphous’’ and warned that ‘‘[t]here is ever present ... the danger that censorship upon that ground is merely the expression of the censor’s own highly subjective view of morality ... or may be a screen for reasons unrelated to moral standards.’’ In this decision, the Court, reasoning that a burlesque show was a form of speech, ruled the City of Newark violated the First Amendment when it refused a license to a theater because city officials thought it would present indecent burlesque shows.
In 1942, fifteen years before Justice William Brennan joined the U.S. Supreme Court, the Court, ruling in Chaplinsky v. New Hampshire (1942), stated,
There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene... (Emphases added)
With these two words, the Court set in motion a train of complex cases centered around ‘‘lewd’’ and ‘‘obscene,’’ for how these words were defined would determine how ‘‘narrowly limited’’ classes of sexually explicit speech would be and their protection, if any, under the First Amendment. Roth v. United States was Brennan’s opportunity to define the terms and to clarify when the ‘‘lewd’’ and the ‘‘obscene’’ might be protected by the First Amendment.
Just months before Roth was announced, however, Justice Felix Frankfurter in Butler v. Michigan (1957) tolled the death knell for the Hicklin rule (Regina v. Hicklin ). Under Michigan’s law, selling a book to the general public containing material ‘‘tending to the corruption of the moral of youth’’ was a misdemeanor. Frankfurter struck down the law for being overly broad; it would ‘‘burn the house to roast the pig.’’ The legislation was not reasonably restricted ‘‘to the evil with which it is said to deal.’’ The effect of the law if left to stand, Frankfurter concluded, would ‘‘reduce the adult population of Michigan to reading only what is fit for children.’’ As the purpose of the Hicklin test was to stop ‘‘those whose minds are open to ... immoral influences’’ from reading allegedly obscene material, Frankfurter’s ruling for a unanimous Court in effect repealed the Hicklin test.
Roth v. United States was argued and decided at the same time as Albert v. California (1957) and Kingsley Books, Inc. v. Brown (1957); the Court’s decisions, in accordance with Chapinsky, restated that pornography was not protected by the First Amendment. This meant, however, that the criterion for identifying obscenity became a critical issue. In Roth, the vote was six to three with Brennan delivering the majority opinion, joined by Burton, Clark, Frankfurter, and Whittaker. Chief Justice Warren voted with the majority but wrote a separate concurring opinion. Black and Douglas dissented with Douglas writing a dissent. Harlan, who also dissented, wrote separately. Brennan’s ‘‘opinion coalition’’ in Roth was a minimum winning coalition of five justices, and Roth was the last time he mustered majorities for his views as the Court grew increasingly fractured and fractious in subsequent obscenity cases.
According to Brennan, Roth squarely presented the Supreme Court for the first time with the ‘‘dispositive question’’ of whether obscenity was ‘‘utterance within the area of protected speech and press.’’ The answer based on earlier court cases, past and current laws, as well as legal tradition, was clearly ‘‘no,’’ for despite its ‘‘unconditional phrasing,’’ Brennan declared, the First Amendment ‘‘was not intended to protect every utterance.’’ Nevertheless, because the First Amendment was designed to foster an ‘‘unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’’ all ideas with ‘‘even the slightest redeeming social importance’’ fell within ‘‘the full protection of the guaranties.’’ Obscene speech or indecent publications ‘‘utterly without redeeming social importance’’ were beyond the pale, however. The issue therefore was finding a line between ‘‘obscene’’ and ‘‘nonobscene’’ utterances that minimized the restrictive impact of suppressing obscenity on the free and full exchange of ideas.
The first step line was to recognize that ‘‘sex and obscenity are not synonymous.’’ The portrayal of sex per se was not sufficient to warrant suppression; rather sexual activities or images had to be depicted ‘‘in a manner appealing to prurient interest’’ in order to cross the line into obscenity. The next step was to accept the view of Augustus and Learned Hand in United States v. One Book Entitled ‘‘Ulysses’’ (1934) that rejected the Hicklin standard’s emphasis on the effects of isolated obscene passages within larger works on susceptible persons. Brennan’s test in Roth thus states that material is obscene according to whether from the perspective of an average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.
Chief Justice Warren’s concurring opinion demurred with respect to the focus of the majority’s decision. Warren felt that the focus on a book or a picture was misplaced; the rightful focus should be on the conduct of the defendant. This shift, Warren wrote, was consistent with the laws at issue in both cases which prohibited individuals from ‘‘purveying textual graphic matter openly advertised to appeal to the erotic interest of their customers.’’ Warren concluded that the state and federal governments could constitutionally prohibit ‘‘the commercial exploitation of the morbid and shameful craving for materials with prurient effect.’’ As it was clear from the record that Roth actively participated in this commerce, Warren felt there was no need for the Court to have gone beyond this aspect of the cases.
One reason for Harlan’s dissent was his critical view of the majority’s definition of obscenity as something ‘‘utterly without redeeming social importance.’’ He felt the standard was too broad and only superficially specific. He complained that the ‘‘Court seems to assume that ‘obscenity’ is a peculiar genus of ‘speech and press,’ which is as distinct, recognizable, and classifiable as poison ivy is among other plants.’’ The judgment as to whether something was obscene, moreover, could not be reduced to a general formula. The constitutional suppression of some ‘‘tangible form of expression,’’ Harlan countered, is an ‘‘individual matter’’ demanding ‘‘particularized judgments.’’ He went to say, ‘‘In short, I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based.’’
For Douglas, the new test inflicted criminal punishments for ‘‘thoughts provoked, not for overt acts nor [for] antisocial conduct.’’ He objected that defining obscene material as that ‘‘which deals with sex in a manner appealing to prurient interest’’ failed to make a nexus with actions a legislature can regulate or prohibit. To compound the problem, the test also turned on whether material offended community standards, Douglas argued, juries could ‘‘censor, suppress, and punish what they don’t like, provided the matter relates to ‘sexual impurity’ or has a tendency ‘to excite lustful thoughts.’ This is community censorship in one of its worst forms. It creates a regime where, in the battle between the literati and the Philistines, the Philistines are certain to win.’’
Roth opened the floodgates to further litigation that with each round raised new questions about the various elements of the test propounded by Brennan. Beginning with Roth, the Supreme Court over the next ten years decided thirteen cases that produced fifty-five separate opinions as the justices struggled to clarify what Roth meant. As the test became more complex, the Court also increasingly struck down convictions in state courts, adding to the controversy surrounding the issue Brennan thought he had laid to rest.
ROY B. FLEMMING
References and Further Reading
Cases and Statutes Cited