Alberts v. California, 354 U.S. 476 (1957), the companion case to Roth v. United States, marks the first time the Supreme Court specifically ruled that the Constitution does not protect obscene materials.

David S. Alberts ran a mail-order business out of Los Angeles when he was found guilty of violating the California Penal Code, which declared that any person who willfully and lewdly distributes or advertises any obscene or indecent writing, paper, book, or picture was guilty of a misdemeanor. In the opinion for the 7-2 Court, Justice William J. Brennan Jr. noted that the central question presented by the case was whether obscenity is utterance within the area of protected speech and press. Although Brennan found that the First Amendment protects all ideas having the slightest social importance, even if disturbing to the prevailing climate of opinion, not all words or works are protected. Rather, implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.

Brennan's test for determining obscenity

Because the rejection of obscenity had found support throughout U.S. history and in contemporary laws, states could make laws regulating obscene materials. A line of demarcation existed, however, between materials of a sexual nature, which were protected, and obscene materials, which were not protected, because obscene materials dealt with sex in a manner that appealed to a prurient interest or excited a person in a lustful way. Brennan clarified that the lower courts should no longer rely on the test stemming from the British case of Regina v. Hicklin (1868). Instead, the appropriate test in obscenity cases should be “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” According to Brennan, using the average person as the standard would ensure that obscenity not be determined by the most susceptible persons in society. Noting the difficulty of developing a precise definition of obscenity, Brennan added that the Court had consistently held that lack of precision was not itself offensive to the requirements of due process. Instead, statutes, as did California’s, must use language that sufficiently provides definite warning as to the proscribed conduct when measured by common understanding and practices.

Chief Justice Earl Warren concurred but considered Brennan’s test to be too broad. Legal history, he said, demonstrated that the power of government can be invoked under obscenity laws against great art or literature, scientific treatises, or works exciting social controversy. Justice John Marshall Harlan II also concurred but explained that he thought the decision painted with such a broad brush that he feared states would not be as capable of enforcing their obscenity statutes.

Justice William O. Douglas dissented, joined by Justice Hugo L. Black. Both believed all government censorship unacceptable under the First Amendment.

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