Roth v. United States

RESPONDENT: United States
LOCATION: Roth's mail-order book business

DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 354 US 476 (1957)
ARGUED: Apr 22, 1957
DECIDED: Jun 24, 1957

Facts of the case

Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products.


Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment?

Media for Roth v. United States

Audio Transcription for Oral Argument - April 22, 1957 in Roth v. United States

Earl Warren:

Number 582, Samuel Roth, Petitioner versus United States of America.

Mr. Rogge, you may --

David von G. Albrecht:

My name is Albrecht Your Honor

Earl Warren:

Mr. Albrecht, you may proceed.

I -- I beg your pardon.

David von G. Albrecht:

The complement in any events, I would like to reserve 10 minutes of my time for conclusion for my able associate, Mr. Rogge for rebuttal.

You Honors, I rise now to the defense of Samuel Roth, an unconventional publisher who publishes what people reject today and perhaps accept tomorrow.

The Government -- the Government here concedes that the petitioner's publications are as they say borderline entertainment area and do not contain commercial black market pornography, which is said by them to be the principal objective of the enforcers of the Act 1461 which we shall refer to instead of to its general title.

But that, Your Honors, is little service to my petitioner who is under the harsh sentence of five years in jail and a $5000 fine.

And I contend that it is of no aid to the Court who is confronted -- which is confronted with a statute about obscenity if we discuss pornography.

Your Honors, this prosecution arose in the Southern District of New York.

Does that mean that you say a federal statute that reached only pornography would be all right?

David von G. Albrecht:

Your -- Your Honors, a federal statute could be made I believe so narrow in construction that it might be all right, but our contention in this case is that under the First Amendment as in conjunction with the Ninth and Tenth Amendment, the Congress has no power at all to do anything in relation to speech as speech itself that that power resides exclusively with the State and with the local government.

Once Congress attempts to interfere with it, it goes beyond the sacred area which is prohibited to Congress by the First Amendment and which is reserved to the States by the Ninth and Tenth Amendments.

That includes pornography, whatever that means?

David von G. Albrecht:

Your Honor, I am not here to defend the question of pornography because I don't really know what pornography here is.

But I understand that the Government here has put in sealed exhibits which we don't know anything about, which we have never seen, which are here for your honest exclusive.

Or is it to curve it down to size what's in my troubles.

Let's suppose they have taken a dirty picture.

Now, do you say it's beyond the purview of Congress to say, "We will not allow that stuff to be shipped through the mails?"

David von G. Albrecht:

Yes, sir.

Do you say that's beyond the purview of Congress --

David von G. Albrecht:

Yes, sir.

-- beyond the power of Congress?

David von G. Albrecht:

Yes, sir.

That -- my contention is that you cannot do anything like that because that is essentially a State function.

It belongs to the local community.

We were not suppose to go to the extreme of doing anything as far as speech is concerned where only speech itself is concerned.

Harold Burton:

Do you mean that the Federal Government can put no limitation of what would be sent by mail?

David von G. Albrecht:

That is my contention, Your Honor, that the Federal Government under the Ninth and Tenth Amendments has absolutely no right to do that and the Government says, "Well, we were -- we are going to have 48 different and distinct rules and regulations here.