This post is the first in a series covering the history of pornography law in the United States. I’ll focus first on the landmark Supreme Court cases, and then go into legislation. Most of these, especially the early ones, are no longer viable precedent. I find it helpful to read the rationale behind old law to understand how we got to where we are today – and how we might move into the future. Also it’s just super interesting b/c I’m a huge sex nerd.
Roth v. United States, 1957
Official citation and full opinion text: 354 U.S. 476
“[T]he rejection of obscenity as utterly without redeeming social importance.”Justice Brennan in the majority opinion for Roth
Roth was the very first Supreme Court case to deal directly with the topic of pornography (using the parent category of “obscenity”). Laws against obscenity existed at both the state and federal level, but they all had different definitions.
Roth did two notable things:
- It established that obscene material was not protected under the First Amendment
- It created the first federal definition of obscenity in the US
Also in 1957: Sputnik I was launched, the Little Rock Nine were being denied access to their school by the Arkansas National Guard, and I Love Lucy was in its final season – with Lucy and Ricardo still sleeping in separate beds. The internet did not exist.
The Supreme Court’s Roth ruling is a combination review of two cases: the titular United States v. Samuel Roth, which dealt with federal-level obscenity law, and People v. Alberts, which dealt with state-level obscenity law.
Samuel Roth ran a book business in New York and sent flyers via mail to advertise. Some of these books and advertisements included pornography.
Roth was charged under the the federal postal law (18 U.S.C. § 1461, still active) which prohibits the mailing of “[e]very obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character.”
He was convicted by the district court and sentenced to 5 years in prison and a fine of $5,000, or about $45,000 in 2021 money.
Roth’s lawyer appealed the case on grounds that the federal obscenity law was unconstitutional under the First Amendment, which prevents Congress from enacting laws against free speech.
David Alberts ran a mail-order book business in Los Angeles, and similarly sold books and distributed advertisements which contained pornography.
Alberts was charged with advertising and ‘keeping for sale’ obscene books. The California Penal Code (§ 311, since amended) at the time prohibited anyone who “[w]rites, composes, stereotypes, prints, publishes, sells, distributes, keeps for sale, or exhibits any obscene or indecent writing, paper, or book; or designs, copies, draws, engraves, paints, or otherwise prepares any obscene or indecent picture or print; or molds, cuts, casts, or otherwise makes any obscene or indecent figure[.]” (wow that’s a lot of vowels!)
He was convicted by the district court, but his sentence was not divulged.
Alberts’ lawyer appealed the case on grounds that the state law was unconstitutional under the Fourteenth Amendment, which prevents the States from enacting laws that infringe on citizens’ rights, essentially guaranteeing free speech at a State level.
Both of these appeals were pretty ballsy moves, as lower courts had upheld the constitutionality of obscenity laws many times. I couldn’t find any information on why the Supreme Court decided to accept these cases at this point in time, but they did.
The original convictions of both Roth and Alberts were affirmed by the Supreme Court.
Sadly, little evidence remains about the details of these obscene materials. Neither defendant contested that the materials they had sold were obscene, so it wasn’t discussed as part of the case. This question was brought up at some of the lower courts, but they seem to have ditched this line of argument by the time it got to the Supreme Court.
According to Wikipedia (but not confirmed by any other sources I could find), Roth was convicted for mailing a publication he produced called “American Aphrodite: a Quarterly for the Fancy-Free” which contained nude pictures and written erotica.
The quarterly carried stories with such intriguing titles as “Anybody’s Fanny,” “The Tongue of Spring,” and “The Story of the Stick” which I sincerely hope was a 1950’s double entendre. (sources: 1 2 3)
Alberts’ content contained pictures of “nude and scantily-clad women,” but you’ll have to use your imagination for those as I couldn’t find any details.
Roth took place during the Warren court, in the same era that Brown v. Board of Education occurred (3 years earlier).
The Roth case was affirmed 6-3, with the single most conservative and two most liberal justices dissenting (according to Oyez’s ideology scale).
Justice Brennan (second from the right in photo) authored the majority opinion. This is particularly notable because 16 years later he reverses his opinion. (spoiler alert!)
This was the first time the constitutionality of censoring obscene content had been directly brought up before the Supreme Court, but there were a slew of previous cases that touched on it. In the Roth decision, Justice Brennan says “this Court has always assumed that obscenity is not protected by the freedoms of speech and press.”
This case formalized it beyond a shadow of a doubt. (for now – it gets complicated later on) Their justification is as follows:
“All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”
(emphasis mine, but that’s the bit that gets quoted everywhere anyways)
Having decided it was not constitutionally protected, they then had to give a legally binding definition, basing it off precedent from the lower courts.
The “Roth test,” as it is known, was this:
“[W]hether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.”
“Appealing to prurient interest” basically means ‘it turns people on,’ though I’m rather fond of “exciting lascivious thoughts or arousing lustful desire,” from the California definition.
‘But different people get turned on by different things!’ I can hear you protesting. True! And in later cases, the definition of “prurient interest” will be heavily debated, but in 1957 that one sentence was all we got to classify something as obscene. The majority opinion acknowledged this was imprecise, but said that was fine as long as it “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”
I would argue the Roth test did not do this, and Justice Harlan agrees – his dissenting opinion described this test as mixing the other standards into an “indiscriminate potpourri,” which is some high class shade.
Chief Justice Warren, though concurring, points out the difficulties of this test: “The line dividing the salacious or pornographic from literature or science is not straight and unwavering.”
This leads us to what I consider the first “educational exemption,” which will become so relevant to social media policies of today.
From the majority opinion: “However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” (emphasis mine)
Content being about sex isn’t enough to make something obscene – sex in art, literature, and science are all constitutionally protected. It’s only if it appeals to prurient interest that it can be legally censored. This paves the way for the great “is it art or is it porn” debate, but we’ll get to that in later cases.
In Roth, there are two big arguments that come up in the dissenting opinions:
- Federal overreach
“I judge this case […] in view of the very real danger of a deadening uniformity which can result from nationwide federal censorship.”Justice Harlan’s dissent
This is something we will see again and again in obscenity cases (and, indeed, in many Supreme Court cases in general). A decision by the Supreme Court applies to the entire country, overriding any state laws, as we saw happen recently with gay marriage. This is a pretty big stick to wield, and the Court doesn’t do it lightly.
This is the nature of Justice Harlan’s mixed opinion – he agreed with Alberts’ conviction because it was under state law, but disagreed with Roth’s because it was under a federal law. “Congress has no substantive power over sexual morality,” he says, but the states “bear direct responsibility for the protection of the local moral fabric.”
Harlan argues that one state could ban a book for obscenity while the state next to it might allow it, and that was “if not wise or desirable, at least acceptable” – but the nationwide banning of a book was not. He describes the forty-eight states (this was before Alaska and Hawaii joined) as “forty-eight experimental social laboratories.”
Interestingly, he does approve of a federal restriction on “hard-core pornography,” but he neglects to define what that means.
The majority opinion waves away the ‘states’ rights’ argument and says it’s fine for Congress to have a federal obscenity law because they just decided that obscenity is not constitutionally protected.
“By these standards, punishment is inflicted for thoughts provoked, not for overt acts nor antisocial conduct.”Justice Douglas’ dissent
The Roth test defines obscenity as that which appeals to prurient interest: that which arouses lustful thoughts. This raises the excellent question: is arousing lustful thoughts a crime?
As Justice Douglas points out, “the arousing of sexual thoughts and desires happens every day in normal life in dozens of ways.” Justice Harlan’s dissent adds that “[t]here is a large school of thought, particularly in the scientific community, which denies any causal connection between the reading of pornography and immorality, crime, or delinquency.”
So if obscenity isn’t the only thing that causes lustful thoughts, and there’s no clear link between lustful thoughts and actual crime, how can obscenity be a crime?
Harlan’s dissent agrees with Douglas: “The Federal Government has no business […] to bar the sale of books because they might lead to any kind of ‘thoughts.’”
Chief Justice Warren, concurring with the majority, argues that “[i]t is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture.” Roth and Alberts “were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct.” (emphasis mine)
This line, from the Chief Justice of the Supreme Court, today reads like a scare tactic in a religious anti-masturbation leaflet. It says the desire to view materials for the purpose of being sexually aroused is morbid and shameful, and facilitation of such is a punishable offense.
It is literal sex-shaming enshrined in law.
Douglas claps back at this: “We reject the prevailing test of tendency to arouse lustful thoughts or desires because it is unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehavior, raises the most acute constitutional as well as practical difficulties.” (emphasis mine) He calls the Roth test “community censorship in one of its worst forms.”
The general majority opinion acknowledges this argument, but defends its stance with precedent from libel law where speech doesn’t have to be proven to have caused harm before it can be illegal.
All of these questions – the nature of obscenity, state vs federal authority, and what exactly constitutes a crime – will come up again and again over the years, as the number of Supreme Court cases around obscenity and pornography start to accelerate.
As you might imagine, things get particularly interesting once the internet comes around, so stay tuned!
Next up: Memoirs v. Massachusetts, in which the Court attempts to decide if the infamous “Fanny Hill” is porn or literature – or something else even more complicated. (spoiler alert: it’s the latter)