U.S. Supreme Court Roth v. United States, 354
U.S. 476 (1957) Roth v. United States No. 582 Argued April 22, 1957 Decided June 24, 1957 354
U.S. 476 ast|>* 354
U.S. 476 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus 1. In the Roth case, the constitutionality of 18 U.S.C.
§ 1461, which makes punishable the mailing of material that is
"obscene, lewd, lascivious, or filthy . . . or other publication of
an indecent character," and Roth's conviction thereunder for
mailing an obscene book and obscene circulars and advertising, are
sustained. Pp. 354 U. S.
479 -494.

															2. In the Albert case, the constitutionality of § 311
of West's California Penal Code Ann., 1955, which, inter
alia, makes it a misdemeanor to keep for sale, or to
advertise, material that is "obscene or indecent," and Alberts'
conviction thereunder for lewdly keeping for sale obscene and
indecent books and for writing, composing, and publishing an
obscene advertisement of them, are sustained. Pp. 354 U. S.
479 -494.

															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. 354 U. S.
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. 354 U. S.
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. 354 U. S.
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. 354 U. S.
484 -485. Page 354 U. S. 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. 354 U. S.
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. 354 U. S.
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. 354 U. S.
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. 354 U. S.
488 -489.

															(d) In these cases, both trial courts sufficiently followed the
proper standard and used the proper definition of obscenity. Pp. 354 U. S.
489 -490.

															5. When applied according to the proper standard for judging
obscenity, 18 U.S.C. § 1461, which makes punishable the mailing of
material that is "obscene, lewd, lascivious, or filthy . . . or
other publication of an indecent character," does not (1) violate
the freedom of speech or press guaranteed by the First Amendment,
or (2) violate the constitutional requirements of due process by
failing to provide reasonably ascertainable standards of guilt. Pp. 354 U. S.
491 -492.

															6. When applied according to the proper standard for judging
obscenity, § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale or to
advertise material that is "obscene or indecent," does not (1)
violate the freedom of speech or press guaranteed by the Fourteenth
Amendment against encroachment by the States, or (2) violate the
constitutional requirements of due process by failing to provide
reasonably ascertainable standards of guilt. Pp. 354 U. S.
491 -492.

															7. The federal obscenity statute, 18 U.S.C. § 1461, punishing
the use of the mails for obscene material, is a proper exercise of
the postal power delegated to Congress by Art. I, § 8, cl. 7, and
it Page 354 U. S. 478 does not unconstitutionally encroach upon the powers reserved to
the States by the Ninth and Tenth Amendments. Pp. 354 U. S.
492 -493.

															8. The California obscenity statute here involved is not
repugnant to Art. I, § 8, cl. 7, since it does not impose a burden
upon, or interfere with, the federal postal functions -- even when
applied to a mail-order business. Pp. 354 U. S.
493 -494.

															237 F.2d 796, affirmed. 138 Cal.
App. 2d Supp. 909 , 292 P.2d 90, affirmed. Page 354 U. S. 479 MR. JUSTICE BRENNAN delivered the opinion of the Court.

															The constitutionality of a criminal obscenity statute is the
question in each of these cases. In Roth, the primary
constitutional question is whether the federal obscenity statute
[ Footnote 1 ] violates the
provision of the First Amendment that "Congress shall make no law .
. . abridging the freedom of speech, or of the press. . . ." In Alberts, the primary constitutional question is whether
the obscenity provisions of the California Penal Code [ Footnote 2 ] invade the freedoms of
speech and press as they may be incorporated in Page 354 U. S. 480 the liberty protected from state action by the Due Process
Clause of the Fourteenth Amendment.

															Other constitutional questions are: whether these statutes
violate due process, [ Footnote
3 ] because too vague to support conviction for crime; whether
power to punish speech and press offensive to decency and morality
is in the States alone, so that the federal obscenity statute
violates the Ninth and Tenth Amendments (raised in Roth ),
and whether Congress, by enacting the federal obscenity statute,
under the power delegated by Art. I, § 8, cl. 7, to establish post
offices and post roads, preempted the regulation of the subject
matter (raised in Alberts ).

															Roth conducted a business in New York in the publication and
sale of books, photographs and magazines. He used circulars and
advertising matter to solicit sales. He was convicted by a jury in
the District Court for the Southern District of New York upon 4
counts of a 26-count indictment charging him with mailing obscene
circulars and advertising, and an obscene book, in violation of the
federal obscenity statute. His conviction was affirmed by the Court
of Appeals for the Second Circuit. [ Footnote 4 ] We granted certiorari. [ Footnote 5 ] Page 354 U. S. 481 Alberts conducted a mail-order business from Los Angeles. He was
convicted by the Judge of the Municipal Court of the Beverly Hills
Judicial District (having waived a jury trial) under a misdemeanor
complaint which charged him with lewdly keeping for sale obscene
and indecent books, and with writing, composing and publishing an
obscene advertisement of them, in violation of the California Penal
Code. The conviction was affirmed by the Appellate Department of
the Superior Court of the State of California in and for the County
of Los Angeles. [ Footnote 6 ] We
noted probable jurisdiction. [ Footnote 7 ]

															The dispositive question is whether obscenity is utterance
within the area of protected speech and press. [ Footnote 8 ] Although this is the first time the
question has been squarely presented to this Court, either under
the First Amendment or under the Fourteenth Amendment, expressions
found in numerous opinions indicate that this Court has always
assumed that obscenity is not protected by the freedoms of speech
and press. Ex parte Jackson, 96 U. S.
727 , 96 U. S.
736 -737; United States v. Chase, 135 U.
S. 255 , 135 U. S. 261 ; Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 ; Public Clearing House v. Coyne, 194 U.
S. 497 , 194 U. S. 508 ; Hoke v. United States, 227 U. S. 308 , 227 U. S. 322 ; Near v. Minnesota, 283 U. S. 697 , 283 U. S. 716 ; Chaplinsky v. New Hampshire, 315 U.
S. 568 , 315 U. S.
571 -572; Hannegan v. Esquire, Inc., 327 U. S. 146 , 327 U. S. 158 ; Winters v. New York, 333 U. S. 507 , 333 U. S. 510 ; Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 266 .
[ Footnote 9 ] Page 354 U. S. 482 The guaranties of freedom of expression [ Footnote 10 ] in effect in 10 of the 14 States
which by 1792 had ratified the Constitution, gave no absolute
protection for every utterance. Thirteen of the 14 States provided
for the prosecution of libel, [ Footnote 11 ] and all of those States made either
blasphemy or profanity, or both, statutory crimes. [ Footnote 12 ] As early as Page 354 U. S. 483 1712, Massachusetts made it criminal to publish "any filthy,
obscene, or profane song, pamphlet, libel or mock sermon" in
imitation or mimicking of religious services. Acts and Laws of the
Province of Mass. Bay, c. CV, § 8 (1712), Mass.Bay Colony Charters
& Laws 399 (1814). Thus, profanity and obscenity were related
offenses.

															In light of this history, it is apparent that the unconditional
phrasing of the First Amendment was not intended to protect every
utterance. This phrasing did not prevent this Court from concluding
that libelous utterances are not within the area of
constitutionally protected speech. Beauharnais v.
Illinois, 343 U. S. 250 , 343 U. S. 266 .
At the time of the adoption of the First Amendment, obscenity law
was not as fully developed as libel law, but there is sufficiently
contemporaneous evidence to show that obscenity, too, was outside
the protection intended for speech and press. [ Footnote 13 ] Page 354 U. S. 484 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. This objective was made
explicit as early as 1774 in a letter of the Continental Congress
to the inhabitants of Quebec:

															"The last right we shall mention regards the freedom of the
press. The importance of this consists, besides the advancement of
truth, science, morality, and arts in general, in its diffusion of
liberal sentiments on the administration of Government, its ready
communication of thoughts between subjects, and its consequential
promotion of union among them, whereby oppressive officers are
shamed or intimidated into more honourable and just modes of
conducting affairs."

															1 Journals of the Continental Congress 108 (1774).

															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. [ Footnote 14 ] But implicit in the history of the
First Amendment is the rejection of obscenity as utterly without
redeeming social importance. This rejection for Page 354 U. S. 485 that reason is mirrored in the universal judgment that obscenity
should be restrained, reflected in the international agreement of
over 50 nations, [ Footnote
15 ] in the obscenity laws of all of the 48 States, [ Footnote 16 ] and in the 20 obscenity
laws enacted by the Congress from 1842 to 1956. [ Footnote 17 ] This is the same judgment
expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S.
571 -572:

															". . . 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. . . . It has been well observed that
such utterances are no essential part of any exposition of ideas,
and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the
social interest in order and morality. . . ."

															(Emphasis added.) We hold that obscenity is not within the area
of constitutionally protected speech or press.

															It is strenuously urged that these obscenity statutes offend the
constitutional guaranties because they punish Page 354 U. S. 486 incitation to impure sexual thoughts, not shown to be
related to any overt antisocial conduct which is or may be incited
in the persons stimulated to such thoughts. In Roth, the trial Judge instructed the jury:

															"The words 'obscene, lewd and lascivious' as used in the law,
signify that form of immorality which has relation to sexual
impurity and has a tendency to excite lustful thoughts. "

															(Emphasis added.) In Alberts, the trial judge applied
the test laid down in People v. Wepplo, 78 Cal. App.
2d Supp. 959 , 178 P.2d 853, namely, whether the material has "a
substantial tendency to deprave or corrupt its readers by inciting
lascivious thoughts or arousing lustful desires."
(Emphasis added.) It is insisted that the constitutional guaranties
are violated because convictions may be had without proof either
that obscene material will perceptibly create a clear and present
danger of anti-social conduct, [ Footnote 18 ] or will probably induce its recipients to
such conduct. [ Footnote 19 ]
But, in light of our holding that obscenity is not protected
speech, the complete answer to this argument is in the holding of
this Court in Beauharnais v. Illinois, supra, at 343 U. S.
266 :

															"Libelous utterances not being within the area of
constitutionally protected speech, it is unnecessary, either for us
or for the State courts, to consider the issues behind the phrase
'clear and present danger.' Certainly no one would contend that
obscene speech, Page 354 U. S. 487 for example, may be punished only upon a showing of such
circumstances. Libel, as we have seen, is in the same class."

															However, sex and obscenity are not synonymous. Obscene material
is material which deals with sex in a manner appealing to prurient
interest. [ Footnote 20 ] The
portrayal of sex, e.g., in art, literature and scientific
works, [ Footnote 21 ] 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. As
to all such problems, Page 354 U. S. 488 this Court said in Thornhill v. Alabama, 310 U. S.
88 , 310 U. S.
101 -102:

															"The freedom of speech and of the press guaranteed by the
Constitution embraces at the least the liberty to discuss publicly
and truthfully all matters of public concern without
previous restraint or fear of subsequent punishment. The exigencies
of the colonial period and the efforts to secure freedom from
oppressive administration developed a broadened conception of these
liberties as adequate to supply the public need for information
and education with respect to the significant issues of the
times. . . . Freedom of discussion, if it would fulfill its
historic function in this nation, must embrace all issues about
which information is needed or appropriate to enable the members of
society to cope with the exigencies of their period. "

															(Emphasis added.)

															The fundamental freedoms of speech and press have contributed
greatly to the development and wellbeing of our free society and
are indispensable to its continued growth. [ Footnote 22 ] Ceaseless vigilance is the
watchword to prevent their erosion by Congress or by the States.
The door barring federal and state intrusion into this area cannot
be left ajar; it must be kept tightly closed, and opened only the
slightest crack necessary to prevent encroachment upon more
important interests. [ Footnote
23 ] It is therefore 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.

															The early leading standard of obscenity allowed material to be
judged merely by the effect of an isolated Page 354 U. S. 489 excerpt upon particularly susceptible persons. Regina v.
Hicklin, [1868] L.R. 3 Q.B. 360. [ Footnote 24 ] Some American courts adopted this
standard, [ Footnote 25 ] but
later decisions have rejected it and substituted this test:
whether, to the average person, applying contemporary community
standards, the dominant theme of the material, taken as a whole,
appeals to prurient interest. [ Footnote 26 ] The Hicklin test, judging obscenity
by the effect of isolated passages upon the most susceptible
persons, might well encompass material legitimately treating with
sex, and so it must be rejected as unconstitutionally restrictive
of the freedoms of speech and press. On the other hand, the
substituted standard provides safeguards adequate to withstand the
charge of constitutional infirmity.

															Both trial courts below sufficiently followed the proper
standard. Both courts used the proper definition of obscenity. In
addition, in the Alberts case, in ruling on a motion to
dismiss, the trial judge indicated that, as the Page 354 U. S. 490 trier of facts, he was judging each item as a whole as it would
affect the normal person, [ Footnote 27 ] and, in Roth, the trial judge
instructed the jury as follows:

															". . . The test is not whether it would arouse sexual desires or
sexual impure thoughts in those comprising a particular segment of
the community, the young, the immature or the highly prudish or
would leave another segment, the scientific or highly educated or
the so-called worldly wise and sophisticated indifferent and
unmoved. . . ."

															" * * * *" "The test in each case is the effect of the book, picture or
publication considered as a whole not upon any particular class,
but upon all those whom it is likely to reach. In other words, you
determine its impact upon the average person in the community. The
books, pictures and circulars must be judged as a whole, in their
entire context, and you are not to consider detached or separate
portions in reaching a conclusion. You judge the circulars,
pictures and publications which have been put in evidence by
present-day standards of the community. You may ask yourselves does
it offend the common conscience of the community by present-day
standards."

															" * * * *" "In this case, ladies and gentlemen of the jury, you and you
alone are the exclusive judges of what the common conscience of the
community is, and, in determining that conscience, you are to
consider the community as a whole, young and old, educated and
uneducated, the religious and the irreligious -- men, women and
children. " Page 354 U. S. 491 It is argued that the statutes do not provide reasonably
ascertainable standards of guilt, and therefore violates the
constitutional requirements of due process. Winters v. New
York, 333 U. S. 507 . The
federal obscenity statute makes punishable the mailing of material
that is "obscene, lewd, lascivious, or filthy . . . or other
publication of an indecent character." [ Footnote 28 ] The California statute makes punishable, inter alia, the keeping for sale or advertising material
that is "obscene or indecent." The thrust of the argument is that
these words are not sufficiently precise, because they do not mean
the same thing to all people, all the time, everywhere.

															Many decisions have recognized that these terms of obscenity
statutes are not precise. [ Footnote 29 ] This Court, however, has consistently held
that lack of precision is not itself offensive to the requirements
of due process. ". . . [T]he Constitution does not require
impossible standards"; all that is required is that the language
"conveys sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practices. . . ." United States v. Petrillo, 332 U. S.
1 , 332 U. S. 7 -8.
These words, applied according to the proper standard for judging
obscenity, already discussed, give adequate warning of the conduct
proscribed, and mark

															". . . boundaries sufficiently distinct for judges and juries
fairly to administer the law. . . . That there may be marginal
cases in which it is difficult to determine the side of the line
on Page 354 U. S. 492 which a particular fact situation falls is no sufficient reason
to hold the language too ambiguous to define a criminal offense. .
. ." Id. at 332 U. S. 7 . See also United States v. Harriss, 347 U.
S. 612 , 347 U. S. 624 ,
n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337 , 342 U. S. 340 ; United States v. Ragen, 314 U. S. 513 , 314 U. S.
523 -524; United States v. Wurzbach, 280 U. S. 396 ; Hygrade Provision Co. v. Sherman, 266 U.
S. 497 ; Fox v. Washington, 236 U.
S. 273 ; Nash v. United States, 229 U.
S. 373 . [ Footnote
30 ]

															In summary, then, we hold that these statutes, applied according
to the proper standard for judging obscenity, do not offend
constitutional safeguards against convictions based upon protected
material, or fail to give men in acting adequate notice of what is
prohibited.

															Roth's argument that the federal obscenity statute
unconstitutionally encroaches upon the powers reserved by the Ninth
and Tenth Amendments to the States and to the people to punish
speech and press where offensive to decency and morality is hinged
upon his contention that obscenity is expression not excepted from
the sweep of the provision of the First Amendment that "Congress
shall make no law . . . abridging the freedom of speech,
or of the press. . . ." (Emphasis added.) That argument falls in
light of our holding that obscenity is not expression protected by
the First Amendment. [ Footnote
31 ] We Page 354 U. S. 493 therefore hold that the federal obscenity statute punishing the
use of the mails for obscene material is a proper exercise of the
postal power delegated to Congress by Art. I, § 8, cl. 7. [ Footnote 32 ] In United Public
Workers v. Mitchell, 330 U. S. 75 , 330 U. S. 95 -96,
this Court said:

															". . . The powers granted by the Constitution to the Federal
Government are subtracted from the totality of sovereignty
originally in the states and the people. Therefore, when objection
is made that the exercise of a federal power infringes upon rights
reserved by the Ninth and Tenth Amendments, the inquiry must be
directed toward the granted power under which the action of the
Union was taken. If granted power is found, necessarily the
objection of invasion of those rights, reserved by the Ninth and
Tenth Amendments, must fail. . . ."

															Alberts argues that, because his was a mail-order business, the
California statute is repugnant to Art. I, § 8, cl. 7, under which
the Congress allegedly preempted the regulatory field by enacting
the federal obscenity statute punishing the mailing or advertising
by mail of obscene material. The federal statute deals only with
actual Page 354 U. S. 494 mailing; it does not eliminate the power of the state to punish
"keeping for sale" or "advertising" obscene material. The state
statute in no way imposes a burden or interferes with the federal
postal functions.

															". . . The decided cases which indicate the limits of state
regulatory power in relation to the federal mail service involve
situations where state regulation involved a direct, physical
interference with federal activities under the postal power or some
direct, immediate burden on the performance of the postal
functions. . . ." Railway Mail Assn. v. Corsi, 326 U. S.
88 , 326 U. S.
96 .

															The judgments are Affirmed. * Together with No. 61, Albert v. California, appeal
from the Superior Court of California, Los Angeles County,
Appellate Department, argued and decided on the same dates.

															[ Footnote 1 ]

															The federal obscenity statute provided, in pertinent part:

															"Every obscene, lewd, lascivious, or filthy book, pamphlet,
picture, paper, letter, writing, print, or other publication of an
indecent character, and --"

															" * * * *" "Every written or printed card, letter, circular, book,
pamphlet, advertisement, or notice of any kind giving information,
directly or indirectly, where, or how, or from whom, or by what
means any of such mentioned matters, articles, or things may be
obtained or made, . . . whether sealed or unsealed . . ."

															" * * * *" "Is declared to be nonmailable matter and shall not be conveyed
in the mails or delivered from any post office or by any letter
carrier."

															"Whoever knowingly deposits for mailing or delivery, anything
declared by this section to be nonmailable, or knowingly takes the
same from the mails for the purpose of circulating or disposing
thereof, or of aiding in the circulation or disposition thereof,
shall be fined not more than $5,000 or imprisoned not more than
five years, or both."

															18 U.S.C. § 1461.

															The 1955 amendment of this statute, 69 Stat. 13, is not
applicable to this case.

															[ Footnote 2 ]

															The California Penal Code provides, in pertinent part:

															"Every person who willfully and lewdly, either:"

															" * * * *" "3. Writes, 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; or,"

															"4. Writes, composes, or publishes any notice or advertisement
of any such writing, paper, book, picture, print or figure; . .
."

															" * * * *" "6. . . . is guilty of a misdemeanor. . . ."

															West's Cal.Penal Code Ann., 1955, § 311.

															[ Footnote 3 ]

															In Roth, reliance is placed on the Due Process Clause
of the Fifth Amendment, and, in Alberts, reliance is
placed upon the Due Process Clause of the Fourteenth Amendment.

															[ Footnote 4 ]

															237 F.2d 796.

															[ Footnote 5 ]

															352 U.S. 964. Petitioner's application for bail was granted by
MR. JUSTICE HARLAN in his capacity as Circuit Justice for the
Second Circuit. 1 L. Ed. 2d 34, 77 Sup.Ct. 17.

															[ Footnote 6 ] 138 Cal.
App. 2d Supp. 909 , 292 P.2d 90. This is the highest state
appellate court available to the appellant. Cal.Const., Art. VI, §
5; see Edwards v. California, 314 U.
S. 160 .

															[ Footnote 7 ]

															352 U.S. 962.

															[ Footnote 8 ]

															No issue is presented in either case concerning the obscenity of
the material involved.

															[ Footnote 9 ] See also the following cases in which convictions under
obscenity statutes have been reviewed: Grimm v. United
States, 156 U. S. 604 ; Rosen v. United States, 161 U. S. 29 ; Swearingen v. United States, 161 U.
S. 446 ; Andrews v. United States, 162 U.
S. 420 ; Price v. United States, 165 U.
S. 311 ; Dunlop v. United States, 165 U.
S. 486 ; Bartell v. United States, 227 U.
S. 427 ; United States v. Limehouse, 285 U. S. 424 .

															[ Footnote 10 ]

															Del.Const., 1792, Art. I, § 5; Ga.Const., 1777, Art. LXI;
Md.Const., 1776, Declaration of Rights, § 38; Mass.Const., 1780,
Declaration of Rights, Art. XVI; N.H.Const., 1784, Art. I, § XXII;
N.C. Const., 1776, Declaration of Rights, Art. XV; Pa.Const., 1776,
Declaration of Rights, Art. XII; S.C.Const., 1778, Art. XLIII;
Vt.Const., 1777, Declaration of Rights, Art. XIV; Va. Bill of
Rights, 776, § 12.

															[ Footnote 11 ]

															Act to Secure the Freedom of the Press (1804), 1
Conn.Pub.Stat.Laws 355 (1808); Del.Const., 1792, Art. I, § 5;
Ga.Penal Code, Eighth Div., §VIII (1817), Digest of the Laws of Ga.
364 (Prince 1822); Act of 1803, c. 54, II Md.Public General Laws
1096 (Poe 1888); Commonwealth v. Kneeland, 37 Mass. 206,
232 (1838); Act for the Punishment of Certain Crimes Not Capital
(1791), N.H.Laws 1792, 253; Act Respecting Libels (1799),
N.J.Rev.Laws 411 (1800); People v. Croswell, 3 Johns.
(N.Y.) 337 (1804); Act of 1803, c. 632, 2 Laws of N.C. 999 (1821);
Pa.Const., 1790, Art. IX, § 7; R.I.Code of Laws (1647), Proceedings
of the First General Assembly and Code of Laws 44-45 (1647);
R.I.Const., 1842, Art. I, § 20; Act of 1804, 1 Laws of Vt. 366
(Tolman 1808); Commonwealth v. Morris, 1 Brock. & Hol.
(Va.) 176 (1811).

															[ Footnote 12 ]

															Act for the Punishment of Divers Capital and Other Felonies,
Acts and Laws of Conn. 66, 67 (1784); Act Against Drunkenness,
Blasphemy, §§ 4, 5 (1737), 1 Laws of Del. 173, 174 (1797); Act to
Regulate Taverns (1786), Digest of the Laws of Ga. 512, 513 (Prince
1822); Act of 1723, c. 16, § 1, Digest of the Laws of Md. 92 (Herty
1799); General Laws and Liberties of Mass. Bay, c. XVIII, § 3
(1646), Mass. Bay Colony Charters & Laws 58 (1814); Act of
1782, c. 8, Rev.Stat. of Mass. 741, § 15 (1836); Act of 1798, c.
33, §§ 1, 3, Rev.Stat. of Mass. 741, § 16 (1836); Act for the
Punishment of Certain Crimes Not Capital (1791), N.H.Laws 1792,
252, 256; Act for the Punishment of Profane Cursing and Swearing
(1791), N.H.Laws 1792, 258; Act for Suppressing Vice and
Immorality, §§ VIII, IX (1798), N.J.Rev.Laws 329, 331 (1800); Act
for Suppressing Immorality, § IV (1788), 2 Laws of N.Y. 257, 258
(Jones & Varick 1777-1789); People v. Ruggles, 8
Johns. (N.Y.) 290 (1811); Act . . . for the More Effectual
Suppression of Vice and Immorality, § III (1741), 1 N.C.Laws 52
(Martin Rev. 1715-1790); Act to Prevent the Grievous Sins of
Cursing and Swearing (1700), II Statutes at Large of Pa. 49
(1700-1712); Act for the Prevention of Vice and Immorality, § II
(1794), 3 Laws of Pa. 177, 178 (1791-1802); Act to Reform the Penal
Laws, §§ 33, 34 (1798), R.I.Laws 1798, 584, 595; Act for the More
Effectual Suppressing of Blasphemy and Prophaneness (1703), Laws of
S.C. 4 (Grimke 1790); Act, for the Punishment of Certain Capital,
and Other High Crimes and Misdemeanors, § 20 (1797), 1 Laws of Vt.
332, 339 (Tolman 1808); Act for the Punishment of Certain Inferior
Crimes and Misdemeanors, § 20 (1797), 1 Laws of Vt. 352, 361
(Tolman 1808); Act for the Effectual Suppression of Vice, § 1
(1792), Acts of General Assembly of Va. 286 (1794).

															[ Footnote 13 ]

															Act Concerning Crimes and Punishments, § 69 (1821), Stat.Laws of
Conn. 109 (1824); Knowles v. State, 3 Day (Conn.) 103
(1808); Rev.Stat. of 1835, c. 130, § 10, Rev.Stat. of Mass. 740
(1836); Commonwealth v. Holmes, 17 Mass. 335 (1821);
Rev.Stat. of 1842, c. 113, § 2, Rev.Stat. of N.H. 221 (1843); Act
for Suppressing Vice and Immorality, § XII (1798), N.J.Rev.Laws
329, 331 (1800); Commonwealth v. Sharpless, 2 S. & R.
(Pa.) 91 (1815).

															[ Footnote 14 ] E.g., United States v. Harriss, 347 U.
S. 612 ; Breard v. Alexandria, 341 U.
S. 622 ; Teamsters Union v. Hanke, 339 U.
S. 470 ; Kovacs v. Cooper, 336 U. S.
77 ; Prince v. Massachusetts, 321 U.
S. 158 ; Labor Board v. Virginia Elec. & Power
Co., 314 U. S. 469 ; Cox v. New Hampshire, 312 U. S. 569 ; Schenck v. United States, 249 U. S.
47 .

															[ Footnote 15 ]

															Agreement for the Suppression of the Circulation of Obscene
Publications, 37 Stat. 1511; Treaties in Force 209 (U.S. Dept.
State, October 31, 1956).

															[ Footnote 16 ]

															Hearings before Subcommittee to Investigate Juvenile Delinquency
of the Senate Committee on the Judiciary, pursuant to S.Res. 62,
84th Cong., 1st Sess. 49-52 (May 24, 1955).

															Although New Mexico has no general obscenity statute, it does
have a statute giving to municipalities the power "to prohibit the
sale or exhibiting of obscene or immoral publications, prints,
pictures, or illustrations." N.M.Stat.Ann., 1953, §§ 14-21-3,
14-21-12.

															[ Footnote 17 ]

															5 Stat. 548, 566; 11 Stat. 168; 13 Stat. 504, 507; 17 Stat. 302;
17 Stat. 598; 19 Stat. 90; 25 Stat. 187, 188; 25 Stat. 496; 26
Stat. 567, 614-615; 29 Stat. 512; 33 Stat. 705; 35 Stat. 1129,
1138; 41 Stat. 1060; 46 Stat. 688; 48 Stat. 1091, 1100; 62 Stat.
768; 64 Stat. 194; 64 Stat. 451; 69 Stat. 183; 70 Stat. 699.

															[ Footnote 18 ] Schenck v. United States, 249 U. S.
47 . This approach is typified by the opinion of Judge
Bok (written prior to this Court's opinion in Dennis v. United
States, 341 U. S. 494 ) in Commonwealth v. Gordon, 66 Pa. D. & C. 101, aff'd
sub nom. Commonwealth v. Feigenbaum, 166 Pa.Super. 120, 70
A.2d 389.

															[ Footnote 19 ] Dennis v. United States, 341 U.
S. 494 . This approach is typified by the concurring
opinion of Judge Frank in the Roth case, 237 F.2d at 801. See also Lockhart & McClure, Literature, The Law of
Obscenity, and the Constitution, 38 Minn.L.Rev. 295 (1954).

															[ Footnote 20 ] I.e., material having a tendency to excite lustful
thoughts. Webster's New International Dictionary (Unabridged,2d
ed., 1949) defines prurient, in pertinent part, as
follows:

															". . . Itching; longing; uneasy with desire or longing; of
persons, having itching, morbid, or lascivious longings; of desire,
curiosity, or propensity, lewd. . . ." Pruriency is defined, in pertinent part, as
follows:

															". . . Quality of being prurient; lascivious desire or thought.
. . ." See also Mutual Film Corp. v. Industrial Comm'n, 236 U. S. 230 , 236 U. S. 242 ,
where this Court said as to motion pictures:

															". . . They take their attraction from the general interest,
eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. . .
."

															(Emphasis added.)

															We perceive no significant difference between the meaning of
obscenity developed in the case law and the definition of the
A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957), viz.: ". . . A thing is obscene if, considered as a whole, its
predominant appeal is to prurient interest, i.e., a
shameful or morbid interest in nudity, sex, or excretion, and if it
goes substantially beyond customary limits of candor in description
or representation of such matters. . . ." See Comment, id. at 10, and the discussion at
page 29 et seq. [ Footnote 21 ] See, e.g., United States v. Dennett, 39 F.2d 564.

															[ Footnote 22 ]

															Madison's Report on the Virginia Resolutions, 4 Elliot's Debates
571.

															[ Footnote 23 ] See note 14 supra. [ Footnote 24 ] But see the instructions given to the jury by Mr.
Justice Stable in Regina v. Martin Secker Warburg, [1954]
2 All Eng. 683 (C.C.C.).

															[ Footnote 25 ] United States v. Kennerley, 209 F. 119; MacFadden
v. United States, 165 F. 51; United States v.
Bennett, 24 Fed.Cas. 1093; United States v. Clarke, 38 F. 500; Commonwealth v. Buckley, 200 Mass. 346, 86 N.E.
910.

															[ Footnote 26 ] E.g., Walker v. Popence, 80 U.S.App.D.C. 129, 149 F.2d
511; Parmelee v. United States, 72 App.D.C. 203, 113 F.2d
729; United States v. Levine, 83 F.2d 156; United
States v. Dennett, 39 F.2d 564; Khan v. Feist,
Inc., 70 F. Supp.
450 , aff'd, 165 F.2d 188; United States v. One
Book Called "Ulysses," 5 F. Supp.
182 , aff'd, 72 F.2d 705; American Civil Liberties
Union v. Chicago, 3 Ill. 2d
334 , 121 N.E.2d
585 ; Commonwealth v. Isenstadt, 318 Mass. 543, 62
N.E.2d 840; Missouri v. Becker, 364 Mo. 1079, 272 S.W.2d
283 ; Adams Theatre Co. v. Keenan, 12 N.J. 267, 96 A.2d
519 ; Bantam Books, Inc. v. Melko, 25 N.J.Super. 292, 96 A.2d 47 ; Commonwealth v. Gordon, 66 Pa. D. & C.
101, aff'd sub nom. Commonwealth v. Feigenbaum, 166
Pa.Super. 120, 70 A.2d 389; cf. Roth v. Goldman, 172 F.2d
788, 794-795 (concurrence).

															[ Footnote 27 ]

															In Alberts, the contention that the trial judge did not
read the materials in their entirety is not before us because not
fairly comprised within the questions presented. U.S.Sup.Ct.Rules,
15(1)(c)(1).

															[ Footnote 28 ]

															This Court, as early as 1896, said of the federal obscenity
statute:

															". . . Every one who uses the mails of the United States for
carrying papers or publications must take notice of what, in this
enlightened age, is meant by decency, purity, and chastity in
social life, and what must be deemed obscene, lewd, and
lascivious." Rosen v. United States, 161 U. S.
29 , 161 U. S.
42 .

															[ Footnote 29 ] E.g., Roth v. Goldman, 172 F.2d 788, 789; Parmelee
v. United States, 72 App.D.C. 203, 204, 113 F.2d 729, 730; United States v. 4200 Copies International
Journal, 134 F.
Supp. 490 , 493; United States v. One Unbound
Volume, 128 F.
Supp. 280 , 281.

															[ Footnote 30 ]

															It is argued that, because juries may reach different
conclusions as to the same material, the statutes must be held to
be insufficiently precise to satisfy due process requirements. But
it is common experience that different juries may reach different
results under any criminal statute. That is one of the consequences
we accept under our jury system. Cf. Dunlop v. United
States, 165 U. S. 486 , 165 U. S.
499 -500.

															[ Footnote 31 ]

															For the same reason, we reject, in this case, the argument that
there is greater latitude for state action under the word "liberty"
under the Fourteenth Amendment than is allowed to Congress by the
language of the First Amendment.

															[ Footnote 32 ]

															In Public Clearing House v. Coyne, 194 U.
S. 497 , 194 U. S.
506 -508, this Court said:

															"The constitutional principles underlying the administration of
the Post Office Department were discussed in the opinion of the
court in Ex parte Jackson, 96 U. S.
727 , in which we held that the power vested in Congress
to establish post offices and post roads embraced the regulation of
the entire postal system of the country; that Congress might
designate what might be carried in the mails and what excluded. . .
. It may . . . refuse to include in its mails such printed matter
or merchandise as may seem objectionable to it upon the ground of
public policy. . . . For more than thirty years, not only has the
transmission of obscene matter been prohibited, but it has been
made a crime, punishable by fine or imprisonment, for a person to
deposit such matter in the mails. The constitutionality of this law
we believe has never been attacked. . . ."

															MR. CHIEF JUSTICE WARREN, concurring in the result.

															I agree with the result reached by the Court in these cases,
but, because we are operating in a field of expression and because
broad language used here may eventually be applied to the arts and
sciences and freedom of communication generally, I would limit our
decision to the facts before us and to the validity of the statutes
in question as applied.

															Appellant Alberts was charged with willfully, unlawfully and
lewdly disseminating obscene matter. Obscenity has been construed
by the California courts to mean having a substantial tendency to
corrupt by arousing lustful desires. People v.
Wepplo, 78 Cal. App.
2d Supp. 959 , 178 P.2d 853. Petitioner Roth was indicted for
unlawfully, willfully and knowingly mailing obscene material that
was calculated to corrupt and debauch the minds and morals of those
to whom it was sent. Each was accorded all the protections of a
criminal trial. Among other things, they contend that the statutes
under which they were convicted violate the constitutional
guarantees of freedom of speech, press and communication. Page 354 U. S. 495 That there is a social problem presented by obscenity is
attested by the expression of the legislatures of the forty-eight
States, as well as the Congress. To recognize the existence of a
problem, however, does not require that we sustain any and all
measures adopted to meet that problem. The history of the
application of laws designed to suppress the obscene demonstrates
convincingly that the power of government can be invoked under them
against great art or literature, scientific treatises, or works
exciting social controversy. Mistakes of the past prove that there
is a strong countervailing interest to be considered in the
freedoms guaranteed by the First and Fourteenth Amendments.

															The line dividing the salacious or pornographic from literature
or science is not straight and unwavering. Present laws depend
largely upon the effect that the materials may have upon those who
receive them. It is manifest that the same object may have a
different impact, varying according to the part of the community it
reached. But there is more to these cases. It 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. The nature
of the materials is, of course, relevant as an attribute of the
defendant's conduct, but the materials are thus placed in context
from which they draw color and character. A wholly different result
might be reached in a different setting.

															The personal element in these cases is seen most strongly in the
requirement of scienter. Under the California law, the
prohibited activity must be done "willfully and lewdly." The
federal statute limits the crime to acts done "knowingly." In his
charge to the jury, the district judge stated that the matter must
be "calculated" to corrupt or debauch. The defendants in both these
cases were engaged in the business of purveying textual or Page 354 U. S. 496 graphic matter openly advertised to appeal to the erotic
interest of their customers. They 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. That
is all that these cases present to us, and that is all we need to
decide.

															I agree with the Court's decision in its rejection of the other
contentions raised by these defendants.

															MR. JUSTICE HARLAN, concurring in the result in No. 61, and
dissenting in No. 582.

															I regret not to be able to join the Court's opinion. I cannot do
so, because I find lurking beneath its disarming generalizations a
number of problems which not only leave me with serious misgivings
as to the future effect of today's decisions, but which also, in my
view, call for different results in these two cases. I My basic difficulties with the Court's opinion are threefold.
First, the opinion paints with such a broad brush that I fear it
may result in a loosening of the tight reins which state and
federal courts should hold upon the enforcement of obscenity
statutes. Second, the Court fails to discriminate between the
different factors which, in my opinion, are involved in the
constitutional adjudication of state and federal obscenity cases.
Third, relevant distinctions between the two obscenity statutes
here involved, and the Court's own definition of "obscenity," are
ignored.

															In final analysis, the problem presented by these cases is how
far, and on what terms, the state and federal governments have
power to punish individuals for disseminating books considered to
be undesirable because of their Page 354 U. S. 497 nature or supposed deleterious effect upon human conduct.
Proceeding from the premise that "no issue is presented in either
case, concerning the obscenity of the material involved," the Court
finds the "dispositive question" to be "whether obscenity is
utterance within the area of protected speech and press," and then
holds that "obscenity" is not so protected, because it is "utterly
without redeeming social importance." This sweeping formula appears
to me to beg the very question before us. 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. On this basis, the constitutional question before us simply becomes, as the
Court says, whether "obscenity," as an abstraction, is protected by
the First and Fourteenth Amendments, and the question whether a particular book may be suppressed becomes a mere matter of
classification, of "fact," to be entrusted to a factfinder and
insulated from independent constitutional judgment. But surely the
problem cannot be solved in such a generalized fashion. Every
communication has an individuality and "value" of its own. The
suppression of a particular writing or other tangible form of
expression is, therefore, an individual matter, and in the
nature of things every such suppression raises an individual
constitutional problem, in which a reviewing court must determine
for itself whether the attacked expression is suppressable
within constitutional standards. Since those standards do not
readily lend themselves to generalized definitions, the
constitutional problem, in the last analysis, becomes one of
particularized judgments which appellate courts must make for
themselves.

															I do not think that reviewing courts can escape this
responsibility by saying that the trier of the facts, be it a jury
or a judge, has labeled the questioned matter as "obscene," for, if
"obscenity" is to be suppressed, the Page 354 U. S. 498 question whether a particular work is of that character involves
not really an issue of fact, but a question of constitutional judgment of the most sensitive and delicate kind. Many
juries might find that Joyce's "Ulysses" or Bocaccio's "Decameron"
was obscene, and yet the conviction of a defendant for selling
either book would raise, for me, the gravest constitutional
problems, for no such verdict could convince me, without more, that
these books are "utterly without redeeming social importance." 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. I am very much afraid that the broad
manner in which the Court has decided these cases will tend to
obscure the peculiar responsibilities resting on state and federal
courts in this field, and encourage them to rely on easy labeling
and jury verdicts as a substitute for facing up to the tough
individual problems of constitutional judgment involved in every
obscenity case.

															My second reason for dissatisfaction with the Court's opinion is
that the broad strides with which the Court has proceeded has led
it to brush aside with perfunctory ease the vital constitutional
considerations which, in my opinion, differentiate these two cases.
It does not seem to matter to the Court that, in one case, we
balance the power of a State in this field against the restrictions
of the Fourteenth Amendment, and, in the other, the power of the
Federal Government against the limitations of the First Amendment.
I deal with this subject more particularly later.

															Thirdly, the Court has not been bothered by the fact that the
two cases involve different statutes. In California, the book must
have a "tendency to deprave or corrupt its readers"; under the
federal statute, it must tend "to stir sexual impulses and lead to
sexually impure Page 354 U. S. 499 thoughts." [ Footnote 2/1 ] The
two statutes do not seem to me to present the same problems. Yet
the Court compounds confusion when it superimposes on these two
statutory definitions a third, drawn from the American Law
Institute's Model Penal Code, Tentative Draft No. 6: "A thing is
obscene if, considered as a whole, its predominant appeal is to
prurient interest." The bland assurance that this definition is the
same as the ones with which we deal flies in the face of the
authors' express rejection of the "deprave and corrupt" and "sexual
thoughts" tests:

															"Obscenity [in the Tentative Draft] is defined in terms of
material which appeals predominantly to prurient interest in sexual
matters and which goes beyond customary freedom of expression in
these matters. We reject the prevailing test of tendency to arouse
lustful thoughts or desires because it is Page 354 U. S. 500 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. We likewise reject the common definition of
obscene as that which 'tends to corrupt or debase.' If this means
anything different from tendency to arouse lustful thought and
desire, it suggests that change of character or actual misbehavior
follows from contact with obscenity. Evidence of such consequences
is lacking. . . . On the other hand, 'appeal to prurient interest'
refers to qualities of the material itself: the capacity to attract
individuals eager for a forbidden look. . . . [ Footnote 2/2 ]"

															As this passage makes clear, there is a significant distinction
between the definitions used in the prosecutions before us and the
American Law Institute formula. If, therefore, the latter is the
correct standard, as my Brother BRENNAN elsewhere intimates,
[ Footnote 2/3 ] then these
convictions should surely be reversed. Instead, the Court merely
assimilates the various tests into one indiscriminate
potpourri.

															I now pass to the consideration of the two cases before us. II I concur in the judgment of the Court in No. 61, Alberts v.
California. The question in this case is whether the defendant was deprived
of liberty without due process of law when he was convicted for
selling certain materials found by the judge to be obscene because
they would have a "tendency Page 354 U. S. 501 to deprave or corrupt its readers by exciting lascivious
thoughts or arousing lustful desire."

															In judging the constitutionality of this conviction, we should
remember that our function in reviewing state judgments under the
Fourteenth Amendment is a narrow one. We do not decide whether the
policy of the State is wise, or whether it is based on assumptions
scientifically substantiated. We can inquire only whether the state
action so subverts the fundamental liberties implicit in the Due
Process Clause that it cannot be sustained as a rational exercise
of power. See Jackson, J., dissenting in Beauharnais
v. Illinois, 343 U. S. 250 , 343 U. S. 287 .
The States' power to make printed words criminal is, of course,
confined by the Fourteenth Amendment, but only insofar as such
power is inconsistent with our concepts of "ordered liberty." Palko v. Connecticut, 302 U. S. 319 , 302 U. S.
324 -325.

															What, then, is the purpose of this California statute? Clearly
the state legislature has made the judgment that printed words can
"deprave or corrupt" the reader -- that words can incite to
antisocial or immoral action. The assumption seems to be that the
distribution of certain types of literature will induce criminal or
immoral sexual conduct. It is well known, of course, that the
validity of this assumption is a matter of dispute among critics,
sociologists, psychiatrists, and penologists. There 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. Others disagree. Clearly it is
not our function to decide this question. That function belongs to
the state legislature. Nothing in the Constitution requires
California to accept as truth the most advanced and sophisticated
psychiatric opinion. It seems to me clear that it is not
irrational, in our present state of knowledge, to consider that
pornography can induce a type of sexual conduct which a State may
deem obnoxious to the Page 354 U. S. 502 moral fabric of society. In fact, the very division of opinion
on the subject counsels us to respect the choice made by the
State.

															Furthermore, even assuming that pornography cannot be deemed
ever to cause, in an immediate sense, criminal sexual conduct,
other interests within the proper cognizance of the States may be
protected by the prohibition placed on such materials. The State
can reasonably draw the inference that, over a long period of time,
the indiscriminate dissemination of materials the essential
character of which is to degrade sex will have an eroding effect on
moral standards. And the State has a legitimate interest in
protecting the privacy of the home against invasion of unsolicited
obscenity.

															Above all stands the realization that we deal here with an area
where knowledge is small, data are insufficient, and experts are
divided. Since the domain of sexual morality is preeminently a
matter of state concern, this Court should be slow to interfere
with state legislation calculated to protect that morality. It
seems to me that nothing in the broad and flexible command of the
Due Process Clause forbids California to prosecute one who sells
books whose dominant tendency might be to "deprave or corrupt" a
reader. I agree with the Court, of course, that the books must be
judged as a whole, and in relation to the normal adult reader.

															What has been said, however, does not dispose of the case. It
still remains for us to decide whether the state court's
determination that this material should be suppressed is consistent
with the Fourteenth Amendment, and that, of course, presents a
federal question as to which we, and not the state court, have the
ultimate responsibility. And so, in the final analysis, I concur in
the judgment because, upon an independent perusal of the material
involved, and in light of the considerations discussed Page 354 U. S. 503 above, I cannot say that its suppression would so interfere with
the communication of "ideas" in any proper sense of that term that
it would offend the Due Process Clause. I therefore agree with the
Court that appellant's conviction must be affirmed. III I dissent in No. 582, Roth v. United States. We are faced here with the question whether the federal
obscenity statute, as construed and applied in this case, violates
the First Amendment to the Constitution. To me, this question is of
quite a different order than one where we are dealing with state
legislation under the Fourteenth Amendment. I do not think it
follows that state and federal powers in this area are the same,
and that, just because the State may suppress a particular
utterance, it is automatically permissible for the Federal
Government to do the same. I agree with Mr. Justice Jackson that
the historical evidence does not bear out the claim that the
Fourteenth Amendment "incorporates" the First in any literal sense. See Beauharnais v. Illinois, supra. But laying aside any
consequences which might flow from that conclusion, cf. Mr. Justice Holmes in Gitlow v. New York, 268 U.
S. 652 , 268 U. S. 672 ,
[ Footnote 2/4 ] I prefer to rest my
views about this case on broader and less abstract grounds.

															The Constitution differentiates between those areas of human
conduct subject to the regulation of the States and those subject
to the powers of the Federal Government. The substantive powers of
the two governments, in many Page 354 U. S. 504 instances, are distinct. And in every case where we are called
upon to balance the interest in free expression against other
interests, it seems to me important that we should keep in the
forefront the question of whether those other interests are state
or federal. Since, under our constitutional scheme, the two are not
necessarily equivalent, the balancing process must needs often
produce different results. Whether a particular limitation on
speech or press is to be upheld because it subserves a paramount
governmental interest must, to a large extent, I think, depend on
whether that government has, under the Constitution, a direct
substantive interest, that is, the power to act, in the particular
area involved.

															The Federal Government has, for example, power to restrict
seditious speech directed against it, because that Government
certainly has the substantive authority to protect itself against
revolution. Cf. Pennsylvania v. Nelson, 350 U.
S. 497 . But, in dealing with obscenity, we are faced
with the converse situation, for the interests which obscenity
statutes purportedly protect are primarily entrusted to the care
not of the Federal Government, but of the States. Congress has no
substantive power over sexual morality. Such powers as the Federal
Government has in this field are but incidental to its other
powers, here, the postal power, and are not of the same nature as
those possessed by the States, which bear direct responsibility for
the protection of the local moral fabric. [ Footnote 2/5 ] Page 354 U. S. 505 What Mr. Justice Jackson said in Beauharnais, supra, 343 U.S. at 343 U. S.
294 -295, about criminal libel is equally true of
obscenity:

															"The inappropriateness of a single standard for restricting
State and Nation is indicated by the disparity between their
functions and duties in relation to those freedoms. Criminality of
defamation is predicated upon power either to protect the private
right to enjoy integrity of reputation or the public right to
tranquillity. Neither of these are objects of federal cognizance
except when necessary to the accomplishment of some delegated
power. . . . When the Federal Government puts liberty of press in
one scale, it has a very limited duty to personal reputation or
local tranquillity to weigh against it in the other. But state
action affecting speech or press can and should be weighed against
and reconciled with these conflicting social interests."

															Not only is the federal interest in protecting the Nation
against pornography attenuated, but the dangers of federal
censorship in this field are far greater than anything the States
may do. It has often been said that one of the great strengths of
our federal system is that we have, in the forty-eight States,
forty-eight experimental social laboratories.

															"State statutory law reflects predominantly this capacity of a
legislature to introduce novel techniques of social control. The
federal system has the immense advantage of providing forty-eight
separate centers for such experimentation. [ Footnote 2/6 ]"

															Different States will have different attitudes toward the same
work of literature. The same book which is freely read in one State
might be Page 354 U. S. 506 classed as obscene in another. [ Footnote 2/7 ] And it seems to me that no overwhelming
danger to our freedom to experiment and to gratify our tastes in
literature is likely to result from the suppression of a borderline
book in one of the States so long as there is no uniform nationwide
suppression of the book, and so long as other States are free to
experiment with the same or bolder books.

															Quite a different situation is presented, however, where the
Federal Government imposes the ban. The danger is perhaps not great
if the people of one State, through their legislature, decide that
"Lady Chatterley's Lover" goes so far beyond the acceptable
standards of candor that it will be deemed offensive and
non-sellable, for the State next door is still free to make its own
choice. At least we do not have one uniform standard. But the
dangers to free thought and expression are truly great if the
Federal Government imposes a blanket ban over the Nation on such a
book. The prerogative of the States to differ on their ideas of
morality will be destroyed, the ability of States to experiment
will be stunted. The fact that the people of one State cannot read
some of the works of D. H.Lawrence seems to me, if not wise or
desirable, at least acceptable. But that no person in the United
States should be allowed to do so seems to me to be intolerable,
and violative of both the letter and spirit of the First
Amendment.

															I judge this case, then, in view of what I think is the
attenuated federal interest in this field, in view of the very real
danger of a deadening uniformity which can result from nationwide
federal censorship, and in view of the Page 354 U. S. 507 fact that the constitutionality of this conviction must be
weighed against the First, and not the Fourteenth, Amendment. So
viewed, I do not think that this conviction can be upheld. The
petitioner was convicted under a statute which, under the judge's
charge, [ Footnote 2/8 ] makes it
criminal to sell books which "tend to stir sexual impulses and lead
to sexually impure thoughts." I cannot agree that any book which
tends to stir sexual impulses and lead to sexually impure thoughts
necessarily is "utterly without redeeming social importance." Not
only did this charge fail to measure up to the standards which I
understand the Court to approve, but, as far as I can see, much of
the great literature of the world could lead to conviction under
such a view of the statute. Moreover, in no event do I think that
the limited federal interest in this area can extend to mere
"thoughts." The Federal Government has no business, whether under
the postal or commerce power, to bar the sale of books because they
might lead to any kind of "thoughts." [ Footnote 2/9 ]

															It is no answer to say, as the Court does, that obscenity is not
protected speech. The point is that this statute, as here
construed, defines obscenity so widely that it encompasses matters
which might very well be protected speech. I do not think that the
federal statute can be constitutionally construed to reach other
than what the Government has termed as "hard-core" pornography. Nor
do I think the statute can fairly be read as directed Page 354 U. S. 508 only at persons who are engaged in the business of
catering to the prurient minded, even though their wares fall short
of hard-core pornography. Such a statute would raise constitutional
questions of a different order. That being so, and since, in my
opinion, the material here involved cannot be said to be hard-core
pornography, I would reverse this case with instructions to dismiss
the indictment.

															[ Footnote 2/1 ]

															In Alberts v. California, the state definition of
"obscenity" is, of course, binding on us. The definition there used
derives from People v. Wepplo, 78 Cal. App.
2d Supp. 959 , 178 P.2d 853, the question being whether the
material has "a substantive tendency to deprave or corrupt its
readers by exciting lascivious thoughts or arousing lustful
desire."

															In Roth v. United States, our grant of certiorari was
limited to the question of the constitutionality of the statute,
and did not encompass the correctness of the definition of
"obscenity" adopted by the trial judge as a matter of statutory
construction. We must therefore assume that the trial judge
correctly defined that term, and deal with the constitutionality of
the statute as construed and applied in this case.

															The two definitions do not seem to me synonymous. Under the
federal definition, it is enough if the jury finds that the book as
a whole leads to certain thoughts. In California, the further
inference must be drawn that such thoughts will have a substantive
"tendency to deprave or corrupt" -- i.e., that the
thoughts induced by the material will affect character and action. See American Law Institute, Model Penal Code, Tentative
Draft No. 6, § 207.10(2), Comments, p. 10.

															[ Footnote 2/2 ] Ibid. [ Footnote 2/3 ] See dissenting opinion of MR. JUSTICE BRENNAN in Kingsley Books, Inc. v. Brown, No. 107, ante, p. 354 U. S.
447 .

															[ Footnote 2/4 ]

															"The general principle of free speech, it seems to me, must be
taken to be included in the Fourteenth Amendment, in view of the
scope that has been given to the word 'liberty' as there used,
although perhaps it may be accepted with a somewhat larger latitude
of interpretation than is allowed to Congress by the sweeping
language that governs or ought to govern the laws of the United
States."

															[ Footnote 2/5 ]

															The hoary dogma of Ex parte Jackson, 96 U. S.
727 , and Public Clearing House v. Coyne, 194 U. S. 497 ,
that the use of the mails is a privilege on which the Government
may impose such conditions as it chooses, has long since
evaporated. See Brandeis, J., dissenting, in Milwaukee
Social Democratic Publishing Co. v. Burleson, 255 U.
S. 407 , 255 U. S.
430 -433; Holmes, J., dissenting, in Leach v.
Carlile, 258 U. S. 138 , 258 U. S. 140 ; Cates v. Haderline, 342 U.S. 804, reversing 189
F.2d 369; Door v. Donaldson, 90 U.S.App.D.C. 188, 195 F.2d
764.

															[ Footnote 2/6 ]

															Hart, The Relations Between State and Federal Law, 54 Col.L.Rev.
489, 493.

															[ Footnote 2/7 ]

															To give only a few examples: Edmund Wilson's "Memoirs of Hecate
County" was found obscene in New York, see Doubleday & Co.
v. New York, 335 U.S. 848; a bookseller indicted for selling
the same book was acquitted in California. "God's Little Acre" was
held to be obscene in Massachusetts, not obscene in New York and
Pennsylvania.

															[ Footnote 2/8 ]

															While the correctness of the judge's charge is not before us,
the question is necessarily subsumed in the broader question
involving the constitutionality of the statute as applied in this
case.

															[ Footnote 2/9 ] See American Law Institute, Model Penal Code, Tentative
Draft No. 6, § 207.10, Comments, p. 20:

															"As an independent goal of penal legislation, repression of
sexual thoughts and desires is hard to support. Thoughts and
desires not manifested in overt antisocial behavior are generally
regarded as the exclusive concern of the individual and his
spiritual advisors."

															MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.

															When we sustain these convictions, we make the legality of a
publication turn on the purity of thought which a book or tract
instills in the mind of the reader. I do not think we can approve
that standard and be faithful to the command of the First
Amendment, which, by its terms, is a restraint on Congress and
which by the Fourteenth is a restraint on the States.

															In the Roth case, the trial judge charged the jury that
the statutory words "obscene, lewd and lascivious" describe "that
form of immorality which has relation to sexual impurity and has a
tendency to excite lustful thoughts." He stated that the term
"filthy" in the statute pertains "to that sort of treatment of
sexual matters in such a vulgar and indecent way, so that it tends
to arouse a feeling of disgust and revulsion." He went on to say
that the material "must be calculated to corrupt and debauch the
minds and morals" of "the average person in the community," not
those of any particular class.

															"You judge the circulars, pictures and publications which have
been put in evidence by present-day standards of the community. You
may ask yourselves does it offend the common conscience of the
community by present-day standards."

															The trial judge who, sitting without a jury, heard the Alberts case, and the appellate court that sustained
the Page 354 U. S. 509 judgment of conviction, took California's definition of
"obscenity" from People v. Wepplo, 78 Cal. App.
2d Supp. 959 , 961, 178 P.2d 853, 855. That case held that a
book is obscene "if it has a substantial tendency to deprave or
corrupt its readers by inciting lascivious thoughts or arousing
lustful desire."

															By these standards, punishment is inflicted for thoughts
provoked, not for overt acts nor antisocial conduct. This test
cannot be squared with our decisions under the First Amendment.
Even the ill-starred Dennis case conceded that speech, to
be punishable, must have some relation to action which could be
penalized by government. Dennis v. United States, 341 U. S. 494 , 341 U. S.
502 -511. Cf. Chafee, The Blessings of Liberty
(1956), p. 69. This issue cannot be avoided by saying that
obscenity is not protected by the First Amendment. The question
remains, what is the constitutional test of obscenity?

															The tests by which these convictions were obtained require only
the arousing of sexual thoughts. Yet the arousing of sexual
thoughts and desires happens every day in normal life in dozens of
ways. Nearly 30 years ago, a questionnaire sent to college and
normal school women graduates asked what things were most
stimulating sexually. Of 409 replies, 9 said "music"; 18 said
"pictures"; 29 said "dancing"; 40 said "drama"; 95 said "books",
and 218 said "man." Alpert, Judicial Censorship of Obscene
Literature, 52 Harv.L.Rev. 40, 73.

															The test of obscenity the Court endorses today gives the censor
free range over a vast domain. To allow the State to step in and
punish mere speech or publication that the judge or the jury thinks
has an undesirable impact on thoughts, but that is not shown to be
a part of unlawful action, is drastically to curtail the First
Amendment. As recently stated by two of our outstanding authorities
on obscenity,

															"The danger of influencing a change in the current moral
standards of the community, or of shocking Page 354 U. S. 510 or offending readers, or of stimulating sex thoughts or desires
apart from objective conduct, can never justify the losses to
society that result from interference with literary freedom."

															Lockhart & McClure, Literature, The Law of Obscenity, and
the Constitution, 38 Minn.L.Rev. 295, 387.

															If we were certain that impurity of sexual thoughts impelled to
action, we would be on less dangerous ground in punishing the
distributors of this sex literature. But it is by no means clear
that obscene literature, as so defined, is a significant factor in
influencing substantial deviations from the community
standards.

															"There are a number of reasons for real and substantial doubts
as to the soundness of that hypothesis. (1) Scientific studies of
juvenile delinquency demonstrate that those who get into trouble,
and are the greatest concern of the advocates of censorship, are
far less inclined to read than those who do not become delinquent.
The delinquents are generally the adventurous type, who have little
use for reading and other non-active entertainment. Thus, even
assuming that reading sometimes has an adverse effect upon moral
conduct, the effect is not likely to be substantial, for those who
are susceptible seldom read. (2) Sheldon and Eleanor Glueck, who
are among the country's leading authorities on the treatment and
causes of juvenile delinquency, have recently published the results
of a ten-year study of its causes. They exhaustively studied
approximately 90 factors and influences that might lead to or
explain juvenile delinquency, but the Gluecks gave no consideration
to the type of reading material, if any, read by the delinquents.
This is, of course, consistent with their finding that delinquents
read very little. When those who know so much about the problem of
delinquency among youth -- the very Page 354 U. S. 511 group about whom the advocates of censorship are most concerned
-- conclude that what delinquents read has so little effect upon
their conduct that it is not worth investigating in an exhaustive
study of causes, there is good reason for serious doubt concerning
the basic hypothesis on which obscenity censorship is defended. (3)
The many other influences in society that stimulate sexual desire
are so much more frequent in their influence, and so much more
potent in their effect, that the influence of reading is likely, at
most, to be relatively insignificant in the composite of forces
that lead an individual into conduct deviating from the community
sex standards. The Kinsey studies show the minor degree to which
literature serves as a potent sexual stimulant. And the studies
demonstrating that sex knowledge seldom results from reading
indicates [ sic ] the relative unimportance of literature in
sex thoughts, as compared with other factors in society."

															Lockhart & McClure, op. cit. supra, pp.
385-386.

															The absence of dependable information on the effect of obscene
literature on human conduct should make us wary. It should put us
on the side of protecting society's interest in literature, except
and unless it can be said that the particular publication has an
impact on action that the government can control.

															As noted, the trial judge in the Roth case charged the
jury in the alternative that the federal obscenity statute outlaws
literature dealing with sex which offends "the common conscience of
the community." That standard is, in my view, more inimical still
to freedom of expression.

															The standard of what offends "the common conscience of the
community" conflicts, in my judgment, with the command of the First
Amendment that "Congress shall make no law . . . abridging the
freedom of speech, or Page 354 U. S. 512 of the press." Certainly that standard would not be an
acceptable one if religion, economics, politics or philosophy were
involved. How does it become a constitutional standard when
literature treating with sex is concerned?

															Any test that turns on what is offensive to the community's
standards is too loose, too capricious, too destructive of freedom
of expression to be squared with the First Amendment. Under that
test, juries can 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. If experience in this field teaches anything, it is
that "censorship of obscenity has almost always been both
irrational and indiscriminate." Lockhart & McClure, op.
cit. supra at 371. The test adopted here accentuates that
trend.

															I assume there is nothing in the Constitution which forbids
Congress from using its power over the mails to proscribe conduct on the grounds of good morals. No one would
suggest that the First Amendment permits nudity in public places,
adultery, and other phases of sexual misconduct.

															I can understand (and at times even sympathize) with programs of
civic groups and church groups to protect and defend the existing
moral standards of the community. I can understand the motives of
the Anthony Comstocks who would impose Victorian standards on the
community. When speech alone is involved, I do not think that
government, consistently with the First Amendment, can become the
sponsor of any of these movements. I do not think that government,
consistently with the First Amendment, can throw its weight behind
one school or another. Government should be Page 354 U. S. 513 concerned with anti=social conduct, not with utterances. Thus,
if the First Amendment guarantee of freedom of speech and press is
to mean anything in this field, it must allow protests even against
the moral code that the standard of the day sets for the community.
In other words, literature should not be suppressed merely because
it offends the moral code of the censor.

															The legality of a publication in this country should never be
allowed to turn either on the purity of thought which it instills
in the mind of the reader or on the degree to which it offends the
community conscience. By either test, the role of the censor is
exalted, and society's values in literary freedom are
sacrificed.

															The Court today suggests a third standard. It defines obscene
material as that "which deals with sex in a manner appealing to
prurient interest."* Like the standards applied by the trial judges
below, that standard does not require any nexus between the
literature which is prohibited and action which the legislature can
regulate or prohibit. Under the First Amendment, that standard is
no more valid than those which the courts below adopted.

															I do not think that the problem can be resolved by the Court's
statement that "obscenity is not expression protected Page 354 U. S. 514 by the First Amendment." With the exception of Beauharnais
v. Illinois, 343 U. S. 250 ,
none of our cases has resolved problems of free speech and free
press by placing any form of expression beyond the pale of the
absolute prohibition of the First Amendment. Unlike the law of
libel, wrongfully relied on in Beauharnais, there is no
special historical evidence that literature dealing with sex was
intended to be treated in a special manner by those who drafted the
First Amendment. In fact, the first reported court decision in this
country involving obscene literature was in 1821. Lockhart &
McClure, op. cit. supra at 324, n. 200. I reject too the
implication that problems of freedom of speech and of the press are
to be resolved by weighing against the values of free expression
the judgment of the Court that a particular form of that expression
has "no redeeming social importance." The First Amendment, its
prohibition in terms absolute, was designed to preclude courts as
well as legislatures from weighing the values of speech against
silence. The First Amendment puts free speech in the preferred
position.

															Freedom of expression can be suppressed if, and to the extent
that, it is so closely brigaded with illegal action as to be an
inseparable part of it. Giboney v. Empire Storage Co., 336 U. S. 490 , 336 U. S. 498 ; Labor Board v. Virginia Power Co., 314 U.
S. 469 , 314 U. S.
477 -478. As a people, we cannot afford to relax that
standard. For the test that suppresses a cheap tract today can
suppress a literary gem tomorrow. All it need do is to incite a
lascivious thought or arouse a lustful desire. The list of books
that judges or juries can place in that category is endless.

															I would give the broad sweep of the First Amendment full
support. I have the same confidence in the ability of our people to
reject noxious literature as I have in their capacity to sort out
the true from the false in theology, economics, politics, or any
other field.

															* The definition of obscenity which the Court adopts seems in
substance to be that adopted by those who drafted the A.L.I., Model
Penal Code. § 207.10(2) (Tentative Draft No. 6, 1957).

															"Obscenity is defined in terms of material which appeals
predominantly to prurient interest in sexual matters and which goes
beyond customary freedom of expression in these matters. We reject
the prevailing tests 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." Id. at 10.

Summary: In the case of Roth v. United States (1957), the Supreme Court upheld the constitutionality of federal and state laws prohibiting the distribution of obscene materials, defining obscenity as content that appeals to prurient interests and lacks redeeming social value. This decision set a precedent for regulating obscene expression without violating free speech protections.