50 Years After 'Roth'

Alex Henderson
2007 marks the 50th anniversary of one of the most consequential rulings in U.S. history: the Supreme Court's 1957 decision in the case Roth vs. U.S.

A major turning point for American obscenity law, the Roth ruling (a 6-3 decision) made it more difficult for prosecutors to get obscenity convictions — and it is safe to say that without the Roth decision, the U.S. probably would not have become the world's biggest erotica-producing country.

Samuel Roth, a New York City-based publisher/writer battled American obscenity laws starting in the late 1920s (when he was jailed for obscenity for publishing an unauthorized version of James Joyce's "Ulysses." Roth also faced intellectual property concerns (Joyce obtained an injunction against Roth forbidding unauthorized use of his work), but obscenity law was his biggest challenge. After serving time in prison from 1936-1939 for obscenity, Roth was arrested again in 1955 for sending obscene material through the mail. Roth's case went to the U.S. Supreme Court in 1957, which was also the year the High Court reviewed another major obscenity case: Alberts vs. California, the companion case of Roth vs. U.S.

The Los Angeles-based David Alberts, who operated a mail-order business and published pictures of nude and scantily clad women, was convicted of obscenity under California law. When Alberts appealed that conviction and his case went to the U.S. Supreme Court, he was represented by the groundbreaking 1st Amendment attorney Stanley Fleishman (whose firm, which is now Weston, Garrou, DeWitt & Walters, went on to represent numerous clients in the adult entertainment industry). Fleishman did not represent Samuel Roth or argue Roth, but legal scholars have often pointed out that Fleishman's work in the Alberts case greatly influenced the outcome of Roth — an outcome that, although not ideal, was definitely a major step forward for adult entertainment.

Profound Role
"Stanley Fleishman's role in the Roth decision was profound," veteran 1st Amendment attorney Clyde DeWitt, who is part of Weston Garrou, said. "Stanley briefed and argued Alberts vs. California, which, of course, was 50 percent of Roth. Stanley was a pioneer."

In both Alberts vs. California and Roth, the U.S. Supreme Court examined the constitutionality of obscenity prosecution; Fleishman saw Alberts' conviction as an unconstitutional violation of the 1st Amendment. There was both good and bad news for adult entertainment in the Roth and Alberts rulings. The bad news was that in both cases, the Supreme Court under the late Chief Justice Earl Warren ruled that obscenity was not constitutionally protected speech. The convictions of Alberts and Roth were upheld by the Warren Court, and Roth went back to prison for several years. But the good news was that with the Roth decision, the Warren Court established a new definition of obscenity that wasn't nearly as prosecutor-friendly as the old 19th century Hicklin test that Roth vs. U.S. officially did away with.

In 1957, the Warren Court ruled that material was obscene if its "dominant theme, taken as a whole, appeals to the prurient interest" according to the "average person, applying contemporary community standards," and the "dominant theme, taken as a whole" part of the Roth test was a crucial departure from the Hicklin test that had been established with the Regina vs. Hicklin ruling of 1868.

Regina vs. Hicklin was actually a British case, but it influenced American obscenity law for 89 years. In Regina vs. Hicklin, the British courts defined obscenity as material that tends to "deprave or corrupt" the most susceptible members of society.

Under the Hicklin test, even a small, isolated, mildly erotic part of an artistic work could make the entire work obscene — and in the U.S., an outspoken supporter of that test was moral crusader/activist Anthony Comstock, who called for much tougher obscenity prosecution when he persuaded Congress to pass the so-called Comstock Law (which led to at least 3,000 arrests) in 1873. Thanks to Comstock, the Hicklin test was used to ban everything from pamphlets promoting birth control to Geoffrey Chaucer's "The Canterbury Tales."

A long list of attorneys, judges and 1st Amendment activists spoke out against the Hicklin standard and "Comstockery" (Irish playwright George Bernard Shaw's term for zealous censorship based on alleged obscenity or immorality) in the late 19th century and during the first half of the 20th century, but it wasn't until the Roth decision that the U.S.'s highest judicial entity officially abolished the Hicklin standard in the U.S. once and for all. And for prosecutors in obscenity cases, having to evaluate an entire book, magazine or film under the Roth test was much more challenging than evaluating an isolated passage under the Hicklin test.

"The whole Regina vs. Hicklin concept rested on a premise that has turned out to be flawed," L.A.-based 1st Amendment attorney Allan B. Gelbard said. "There is no proof that exposure to adult materials harms anybody in any way, and even if there are some people who might be harmed by it, that doesn't mean you make it illegal for everybody else.

"You can't make all of society safe for the sandbox. If something is inappropriate for a 6- year-old child, that doesn't mean that you can prevent a 30-year-old adult from having it. You can't prevent a 30-year-old adult from having something because it might fall into the hands of a child. If we based everything that adults can have access to on what is appropriate for a 6-year-old, adults would never have a gun or a car."

Decision's Impact
While civil Libertarians believe that the Roth decision ultimately did more good than harm, hardcore social conservatives flat-out detest the decision. First Amendment attorney Gregory Piccionelli, who has spent much of his career battling modern-day Comstockery, said, "Roe vs. Wade and Roth v. U.S. are the Religious Right's most hated cases."

Former Pennsylvania Sen. Rick Santorum has indicated that he would like to see a return to a Hicklin-like standard, and Eagle Forum founder Phyllis Schlafly has complained that "the flood of pornography started with the Warren Court."

Adult entertainment did, in fact, become increasingly plentiful during what DeWitt and others call the Roth/Memoirs Era — that is, 1957-1973. The Memoirs part is Memoirs vs. Massachusetts, a case the Supreme Court decided in 1966. The Warren Court's Memoirs decision essentially upheld the Roth decision and noted that obscenity was "utterly without redeeming social value." DeWitt pointed out that during the Roth/Memoirs Era, "the country evolved from a very subdued Playboy to 'Deep Throat.'"

The Roth/Memoirs Era ended when, in 1973, the Supreme Court under the late Chief Justice Warren Burger (Earl Warren's replacement) examined the landmark Miller vs. California case. The Burger Court's ruling in Miller vs. California established a new three-prong test for obscenity that maintained some parts of the Roth test but replaced the "utterly without redeeming social value" element with what is known as the "SLAPS test."

According to the Supreme Court's Miller test (which remains 34 years later), a creative work is obscene if it: 1) appeals to a prurient interest when contemporary community standards are applied, 2) is patently offensive, and 3) lacks serious literary, artistic, political or scientific value when taken as a whole (the so-called SLAPS test).

If a prosecutor cannot prove to a jury that erotic material meets all three of those criteria for obscenity, the jury must provide a "not guilty" verdict. In 1973, DeWitt recalled, some adult entrepreneurs feared that the SLAPS part of the Miller test would make it easier for prosecutors to send them to jail. But as it turned out, adult entertainment became more plentiful and more explicit; it was during the 1970s that the adult film market truly exploded.

"[Miller] flat-out said that Congress could regulate morality, and that's just wrong," DeWitt said. "But Miller has not proven to be the train wreck that everyone thought it would be. After all, look where we have all gone since then. Let's face it, you can get every kind of erotic media everywhere now, except retail stores, which are fewer and far between."

DeWitt added that the Roth decision not only had an impact on adult entertainment — it had an impact on mainstream entertainment as well.

Clients "in the Trenches"
"My clients in adult entertainment are in the trenches," DeWitt said, "and it is the battles that they fight that pave the way for the lyrics in rock 'n' roll and rap. I mean, how could anyone even think about prosecuting some store for music with raunchy lyrics when the same store sells DVDs with DP gang-bang scenes?"

Where U.S. obscenity law will go in the future remains to be seen. While 1st Amendment purists hope to see obscenity prosecution abolished altogether in the U.S., Christian Right fundamentalists long for a return to a pre-Roth decision test for obscenity — and if the Supreme Court did replace the Miller test with a Hicklin-like test, it would be disastrous for American adult companies (many of which would no doubt relocate to Continental Europe if they were facing that type of nightmare). But Piccionelli doesn't see the U.S. taking such a giant step backward.

"It is insanity for Rick Santorum to believe that the country would tolerate a return to a 19th century standard for obscenity," Piccionelli said, also noting that vanilla erotica has become harder and harder to prosecute in the Internet era.

Ideally, Piccionelli added, he would like to see the U.S. government quit wasting taxpayers' dollars prosecuting consensual adult erotica and worry about terrorism and child pornography instead. And Gelbard also said that he would like to see obscenity prosecution abolished in the U.S. on constitutional grounds. But until that happens, Gelbard warned, adult-oriented entrepreneurs will need to be on guard.

"The whole concept of obscenity law is flawed," Gelbard said. "The whole idea that some speech is so sexually explicit that it somehow loses its protection as speech is ridiculous. The other areas of speech that are restricted are based on real harm. As everybody has heard, you can't yell fire in a crowded theater, but that isn't because the word fire is offensive; that's because the word fire might cause a stampede and cause people to get killed.

"When the government restricts speech, there is supposed to be a really, really good reason — what we call a compelling interest — and there is supposed to be no greater restriction than necessary to effectuate that. If somebody is offended by sexually explicit speech, that's good and fine; you restrict it by saying that it shall not be forced upon them, but you don't make it illegal ab initio. That's just stupid.

"And the other part of it is that obscenity is the only area of the law where you don't know if you are breaking the law. If you walk into a bank with a gun and say, 'Give me all your money,' there is no question that you are breaking the law by robbing a bank. But if I make an adult movie today and three years from today, some prosecutor decides to prosecute me for obscenity, how was I supposed to know it was illegal when I thought it was perfectly artistic?"

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