Two museum goers contemplate photos by artist Jeff Koons at the Tate Modern
Roth vs. US is the 1957 Supreme Court case that dealt with the prosecution of Samuel Roth, who was convicted of sending obscene material through the mail, and to the best of my knowledge (legal scholars please chime in!) is the court’s first attempt to define this curious subject of speech that stands alone in not having protection under the First Amendment. Excepted from the court’s decission:
3. Obscenity is not within the area of constitutionally protected freedom of speech or press – either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. Pp. 481-485.
(a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 482-483.
(b) The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. P. 484.
(c) 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. Pp. 484-485. [354 U.S. 476, 477]
4. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges’ instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct. Beauharnais v. Illinois, 343 U.S. 250 . Pp. 485-490.
(a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest – i. e., material having a tendency to excite lustful thoughts. P. 487.
(b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. Pp. 487-488.
(c) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. Pp. 488-489.
(d) In these cases, both trial courts sufficiently followed the proper standard and used the proper definition of obscenity.
Again the distinction hinges on whether or not the material in question “excites lustful thoughts”, but Roth opens the to the possibility that sexual explicit books, art, movies might not be obscene if they don’t appeal to prurient interest.
But the passage I especially want to call from the chuck above out it section 3)c:
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.
The way I read it is “exciting lustful thoughts” equals obscenity, but obscenity never has redeeming social importance, ego “exciting lustful thoughts” never has redeeming social importance.
And although Roth is no longer the law of the land (Miller v California superseded Roth in 1972) the decision’s linguistic legacy still permeates our attitudes about sex and cinema. Whether at a cocktail party or on an academic panel, discussion of the question of what is Art and what is Pornography is never complete until someone utters the phrase “socially redeeming value” or its dark handmaiden “artistic merit.”
In the next post we’ll have a look at Jacobellis vs Ohio, which gave us the granddaddy of all misunderstood, misconstrued and misused Supreme Court quotes of all time: “I know it when I see it.”