Roth v. United States

“ 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. ”

“ As all the creditors of Roth had the right to become parties to the proceeding in the insolvent court, no matter where they resided, it is manifest the Circuit Court of the United States could take no jurisdiction of the parties, nor execute the insolvent law, had an application been made to that court for such purpose. It is therefore a peculiar law, as respects the court of the United States; is strictly municipal in its character: and as it could only be executed by the state courts, no action under it, by these courts, could affect the process by which Roth was imprisoned. ”

“ 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 . ”

“ 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. ”

“ 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 [p486] 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. ”

“ Whatever the scope of the 'right to receive' referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here-dealings that Roth held unprotected by the First Amendment.
The right Stanley asserted was 'the right to read or observe what he pleases-the right to satisfy his intellectual and emotional needs in the privacy of his own home.' 394 U.S., at 565, 89 S.Ct., at 1248. The Court's response was that 'a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. ”

“ It follows, that a state law, regulating the practice of state courts, and addressed to its judges and magistrates; but which can only be executed by them, or with their aid, is a peculiar municipal regulation; not adopted by the acts of Congress, nor applicable to the courts of the United States.
The case of Duncan must be tested by these rules. Roth applied to a judge of the Common Pleas, and gave a bond, to appear at that court, at its next term, and take the benefit of the insolvent laws. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 [p490] trier of facts, he was judging each item as a whole as it would affect the normal person, [27] and, in Roth, the trial judge instructed the jury as follows:
. . . ”

“ The former contained an item of 'legal expenses $16,600,' while the latter recited 'legal fees $1,600.' Roth, in explanation, testified that 'sometime during the operation of the partnership a check for $15,000 was drawn to Howard Lawn,' and that a question had arisen about how to enter it on the books. After discussing the matter with Giglio, Roth charged it to legal expense. Months later Lawn asked Roth how the item was carried on Tavern's books and Roth told him that it was carried as a legal expense. ”

“ For purposes of the present case we conclude that the following seven factors are relevant * * *.”) . The seven factors must be balanced against one another to determine reasonableness. See Roth v Garcia Marquez, 942 F2d 617, 623, 625 (9th Cir 1991) . In this case, each factor suggests that jurisdiction is unreasonable.
1
The extent of defendants’ “purposeful interjection” into California was not substantial, comprising only the single takedown notice sent to YouTube. ”

“ The petition for writ of certiorari is granted and the judgment of the United States Court of Appeals for the Seventh Circuit is reversed. Roth v. U.S. (Alberts v. California) , 354 U.S. 476, 77 S.Ct. ”

“ 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. ”

“ 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, 42.
↑ . 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. ”

“ This curious result is reached through the elaboration of a theory of obscenity entirely unrelated to the language, purposes, or history of the federal statute now being applied, and certainly different from the test used by the trial court to convict the defendants. While the precise holding of the Court is obscure, I take it that the objective test of Roth, which ultimately focuses on the material in question, is to be supplemented by another test that goes to the question whether the mailer's aim is to 'pander' to or 'titillate' those to whom he mails questionable matter. ”

“ So far as 'judicial superintendence' [13] and de novo review are concerned, the trial judge, after viewing the film and hearing argument, stated merely: 'Oh, I realize you gentlemen might be right. There are two or three features in this picture that look to me would be unsuitable to young people. * * * So I enjoin the exhibitor * * * from exhibiting it.' [14] Nor did the Court of Civil Appeals provide much enlightenment or a narrowing definition of the ordinance. United Artists argued that the obscenity standards similar to those set forth in Roth v. ”

“ Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test. ”

“ The objection that the writ of error should have been directed to the supreme court, and not to the superior court, is answered by McDonald v. Massachusetts, 180 U.S. 311, 45 L. ed. 542, 21 Sup. Ct. Rep. 389.
The constitutional questions raised by plaintiffs in error are (1) that they have been deprived of their property without due process of law; (2) that if the judgment be allowed to stand it will impair the obligation of contracts, contrary to the Constitution of the United States ”

“ We perceive no threat to First Amendment guarantees in thus holding that in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Roth test. [15] No weight is ascribed to the fact that petitioners have profited from the sale of publications which we have assumed but do not hold cannot themselves be adjudged obscene in the abstract ”

“ Finally, having decided that discipline in the federal prisons will not be so seriously impaired that all recovery should be denied for negligently inflicted injuries, we should not at the same time make recovery depend upon a State's decision to the contrary. [27]
The Federal Tort Claims Act provides much-needed relief to those suffering injury from the negligence of government employees. We should not, at the same time that state courts are striving to mitigate the hardships caused by sovereign immunity, [28] narrow the remedies provided by Congress. ”

“ To construe the one clause as limiting rather than supplementing the other would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to both the states and the national government powers which were common attributes of sovereignty before the adoption of the Constitution. The result would be to deny to both the power to define and punish crimes of less gravity than felonies committed on vessels of the United States while on the high seas, and crimes of every grade committed on them while in foreign territorial waters. ”

“ States are free to adopt other definitions of obscenity only to the extent that those adopted stay within the bounds set by the constitutional criteria of the Roth definition, which restrict the regulation of the publication and sale of the books to that traditionally and universally tolerated in our society. ”

“ In the second place, I believe the Bill of Rights' safeguard against double jeopardy was intended to establish a broad national policy against federal courts trying or punishing a man a second time after acquittal or conviction in any court. It is just as much an affront to human dignity and just as dangerous to human freedom for a man to be punished twice for the same offense, once by a State and once by the United States, as it would be for one of these two Governments to throw him in prison twice for the offense. ”

“ In marked contrast, the concept of "punitive damages" is deeply rooted in the common law.
An examination of the nature of the exceptions in § 2680 further demonstrates that those limitations serve a qualitatively different purpose than § 2674's bar on "punitive damages." The § 2680 exceptions are designed to protect certain important governmental functions and prerogatives from disruption. They mark "the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." ”