Roth v. United
States is a landmark case that changed the way courts rule on obscenity cases.
It was used as precedence in other cases to follow. Four of the court rulings
that Roth v. United States was cited in are Memoirs v. Massachusetts, Miller v.
California, Ginzburg v. United States, and New York v. Ferber. Next, the role
of obscenity will be discussed in the recent cases stated above.

Roth v. United
States is a landmark case that changed the constitutional test for determining
what is defined as obscene material that is protected or unprotected by the
First Amendment. Roth, the defendant was operating a book-selling business in
New York. He was mailing out pamphlets that had obscene material on them. He
was violating the federal obscenity statute 18 U.S.C. Section 1461 that
prohibited the mailing of “every obscene, lewd, lascivious, or filthy book,
pamphlet, picture, paper, letter, writing, print, or other publication of an
indecent character.” Roth appealed his conviction on the grounds that statute
18 U.S.C. Section 1461 violated the First Amendment. The U.S. Supreme Court
granted certiorari. The issue that needed to be determined during this case was
whether the statute was a violation of the First Amendment due to a violation
of freedom of expression.

In a 6-to-3
decision made by the court, it was determined that this statute does not
violate the First Amendment. The obscenity that Roth presented was not within
the area protected by free speech or press. The First Amendment was not meant
to protect all expression. If material is “utterly without redeeming social
importance,” it cannot be protected.  Ideas about sex are typically protected by the
First Amendment because sex is not obscene, but if it is liked by prurient
interest, it is not protected. The court decided to make a new test for
obscenity based on this case. The Roth test must show that material is an
unhealthy image of sex, must be offensive by community standards, and must have
utterly not redeeming quality for social purpose (Roth v. United States). The
ruling for this case paved the way for the all similar cases including Memoirs
v. Massachusetts, which used the Roth test to determine the case ruling.

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In Memoirs v.
Massachusetts, a man named John Cleland wrote a book called Memoirs of a Woman of Pleasure (Fanny Hill).
It was originally published in 1750, and it was about the sexual exploits of a
15-year-old girl who worked in prostitution in England. When it was picking up
attention in the United States, Massachusetts Attorney General decided to bring
a civil equity suit against the book to have it declared obscene, and have all
publication of the book stopped in the state of Massachusetts. The court ruled
that the book was obscene, and was not protected against the First Amendment,
and the Massachusetts Supreme Court agreed.

The case was
appealed to the United States Supreme Court, where they reversed the ruling of
the Massachusetts Supreme Court by using the Roth test determined in the
landmark case Roth v. United States. The material must have “the dominant theme
of the material taken as a whole appeals to a prurient interest in sex; , the
material is patently offensive because it affronts contemporary community
standards relating to the description or representation of sexual matters, and
the material is utterly without redeeming social value. Justice Brennan, the
man that presided over this case held that the book was not obscene because it
did have some social value, so it is protected by the First Amendment. It was demanded
highly by colleges, universities, and libraries around the U.S. when it was
arriving, so it has value in the literary world. The Roth test was able to be
applied in Memoirs v. Massachusetts, but it overruled seven years later when
Miller v. California, another crucial obscenity case was filed.

In 1973, a
man named Miller was selling obscene books and was advertising them by using a
mass-mailing campaign. The brochures depicted sexual acts to unwilling
recipient, and people began to complain. Under a California criminal statute
Miller was convicted of the distribution of obscene materials by the state

question that had to be asked during the case was is the distribution of
obscene materials by mass-mail protected by the First Amendment.  The court held that the distribution of
obscene materials is not protected by the First Amendment. The Court used the
Roth test so they had to test “whether the average person, applying contemporary
community standards would find that the work taken as a whole, appeals to the
prurient interest.” (Roth v. United States). The court decided that the
material must at least have literary, artistic, political, or scientific value
to have protection using the First Amendment. The brochures that Miller was
selling did not have any societal value, so it is not protected. Miller v.
California brought on a new test to prove obscenity. The works must show not
only “whether ‘the average person, applying contemporary community
standards’ would find that the work, taken as a whole, appeals to the prurient
interest, but whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law, and
whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value (Miller v. California).”

Ginzburg v. United
States a man named Ralph Ginzburg was charged with violating a federal
obscenity statute. Ginzburg was charged with advertising erotic materials
through the mail. The advertisements informed people of where and how
individuals can purchase obscene publications. Since the material he was
sending out was not obscene on its own he appealed the conviction on the
grounds that it is unconstitutional. The Third Circuit Court of Appels ruled in
favor of the lower court’s finding, The Supreme Court then decided to grand
Ginzberg certiorari, and reviewed his case.

The Supreme Court
had to decide if even though the advertisements were not explicit on their own
they could be banned because they attempted to exploit prurient interests of
the average person. The court decided that yes, they can be banned. Since the
advertisements were mailed to the public it violates the federal obscenity
statute if they advertise the obscene materials. There may not have been
obscene materials on the advertisements they were considered by the court as
“against a background of commercial exploitation of erotica solely for the sake
of their prurient appeal (Ginzburg v. United States).” The ad was implying
sexually explicit and obscene materials, and trying to awake appeal to some, so
it can be found as obscene. Roth v. United States was applied to this case
because in the case it also ruled that “obscene material may include
consideration of manner in which material is presented and disseminated (Roth
v. United States).” The Roth test was able to be used because of the subject of
pandering, or the advertising of obscene materials to try to get individuals
interested in material that is for sale.

In New York v.
Ferber, the defendant, Ferber, owned an adult bookstore in New York. Ferber was
arrested for selling two films that portrayed boy who were minors masturbating
to an undercover police officer. He was convicted of violating a criminal
stature that prohibits people form knowingly promoting sexual performances by
children under the age of 16 by distributing material shown in performances
(New York v. Ferber).” The appellate court agreed with the conviction, but the
New York Court of Appeals reversed the conviction. They declared that it was a
violation of Ferber’s First Amendment rights. The case eventually was granted
certiorari by the United States Supreme Court.

The court had to
decide whether that the New York criminal statute of prohibiting someone from
knowingly selling material that promotes sexual performances by under age
children violates the First Amendment. The Supreme Court held that it was not a
violation of the First Amendment to be convicted of the criminal statue. New
York is only one of 47 other states that have laws making the production of
child pornography illegal without actually requiring it to be legally obscene. These
states have this law because they have a large interest in keeping minors safe
physically and mentally. States are allowed to have stricter regulation about
child pornography because they have the need to keep children safe gets
priority over keeping the First Amendment in this case. The standards the
Miller test have for determining was is obscene does not properly regulate the
problem of child pornography.

Roth v. United
States was applied because it states that “obscenity is not within the area of
constitutionally protected speech and press.” Many members of the court feel
that the government has a legitimate interest in prohibiting the distribution
of obscene materials when the dissemination can be a danger to unwilling
recipients or minors.

The case of Roth
v. United States is continuously being cited in cases that involve obscenity.
The initial Roth test set the tone for a change in the way the United States
courts determine if cases that are obscene are protected by the First Amendment
or not.  Memoirs v. Massachusetts was
used to determine if material that has some social value can be protected by
the First Amendment, and in the case of this book, it was. Miller v. California
helped adjust the way the courts determine obscene material by adding stricter
rules to how we define obscene. Ginzburg v. United States validated the Roth
test by determining that pandering through mail can be found as obscene
material.  The final case New York v.
Ferber was another case that proved the importance of the landmark case Roth v.
United States, but Miller v. California as well. Although some words are free
speech, does not mean they are protected speech, and that was shown through
these cases.


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