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. 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. 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. 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. 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. 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. 484-485 . [p*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. 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. 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. 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. 488-489 . (d)
In these cases, both trial courts sufficiently followed the proper standard
and used the proper definition of obscenity. Pp. 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. 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. 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 [p*478] does not unconstitutionally
encroach upon the powers reserved to the States by the Ninth and Tenth Amendments.
Pp. 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. 493-494 . 237 F.2d 796, affirmed. 138 Cal.App.2d Supp. 909, 292 P.2d 90,
affirmed.
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