Slouching Towards Roth: Obscenity and the Supreme Court, 1945–1957

Abstract

Slouching Towards Roth-. Obscenity and the Supreme Court, 1945-1957 WHITNEY STRUB Roth v. United States is generally remembered for breaking six decades of Supreme Court silence on obscenity, and rightly so, since when Roth was announced in 1957 the Courthad last substantively weighed in on the issue in 1896. William J. Brennan’s majority opinion in the case offered a notoriously threadbare account of the history of obscenity, sweeping broadly from the colonial era through the Cold War in a few terse sentences and thus leaving Roth a fairly ahistorical opinion.1 But another history haunts Roth', that of its recent past. Though it is fair to say the Court avoided obscenity for much ofthe 20th century, it is more accurate to say it failed to effectively engage with the topic. In the years leading up to Roth, the Court repeatedly found itselfconfronted with cases invoking obscen­ ity, and it never decisively resolved them. The buildup to Roth has gone somewhat under­ examined by historians; accounts of the Stone, Vinson, and early Warren Courts place little emphasis on obscenity, while historians ofobscenity tend to take small interest in the years between 1945 and 1957. When legal scholars do pursue the doctrine into these forgotten years, it is primarily at the lower court level, where much ofRoth's pre-history indeed took shape.2 The lower court influence can be read in Brennan’s doctrine, which held that obscene materials, defined as “utterly without redeem­ ing social importance,” were excluded from First Amendment protection. His Roth test—“whether, to the average person, apply­ ing contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest”—emanat­ ed out ofthe federal courts; his footnote at the end of those conditions cited fourteen cases, all lower courts.3 Supreme Court doctrinal precedent thus played only a minorrole inRoth. Brennan said little about such recent cases as Doubleday v. New York or Winters v. New York, or Samuel Roth’s own earlier failed bid for Court review, in Roth. But he indirectly reflected their impact: a doctrinal quagmire that preceded the actual doctrine. Roth, therefore, while 122 JOURNAL OF SUPREME COURT HISTORY certainly both an attempt to modernize obscenity doctrine and a reaction to the advances of the lower courts, was also an effort to get the Supreme Court past its own, only semi-visible, roadblocks when it came to the question ofsexual expression and the First Amendment. An examination of that hidden backdrop helps illuminate what Brennan sought to avoid in devising Roth. The “intractable obscenity problem,” as it later became known, was already in place well before observers outside the Court fully recognized it.4 The State of the Doctrine No case better crystallized the tensions within midcentury obscenity doctrine than Hannegan v. Esquire, decided by the Court in 1946. It served as an indecisive bellwether of the Court’s disposition. Countering the war­ time tendencies of soldiers to decorate both their barracks and even their weaponry with images of pin-up girls, Postmaster General Frank C. Walker had revoked the secondclass mailing privileges of men’s magazine Esquire for falling into what he called “that obscure and treacherous borderland zone where the average person hesitates to find them technically obscene, but still may see ample proofthat they are morally improper.” Federal appellate judge Thurman Arnold dismissively overturned Walker’s order, scorning the “utter confusion and lack of intelligible standards” on display.5 By the time the case reached the Supreme Court in 1945, new postmaster Robert Hannegan had inherited it. The Court, meanwhile, inherited its own baggage in Hannegan—that of avoidance. Since the passage of the 1873 Comstock Act that had formally codified the criminalization of obscenity at the federal level, much of the legal argumentation had centered on postal authority (vice crusader Anthony Comstock himself had been appointed a special agent through the Post Office, and used that power vigorously through his death in 1915). Though the Court had endorsed postal authority and methods regarding obscenity in a variety of cases from the 1870s to the 1890s, it had less to say about substantive questions of doctrine.6 In 1896, it formally...