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Obscenity Rules

Roth v. United States and the Long Struggle over Sexual Expression

By Whitney Strub

Publication Year: 2013

For some, he was “America’s leading smut king,” hauled into court repeatedly over thirty years for peddling obscene publications through the mail. But when Samuel Roth appealed a 1956 conviction, he forced the Supreme Court to finally come to grips with a problem that had plagued both American society and constitutional law for longer than he had been in business. For while the facts of Roth v. United States were unexceptional, its constitutional issues would define the relationship of obscenity to the First Amendment.

Published by: University Press of Kansas

Cover

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p. 1-1

Title Page, About the Series, Other Works in the Series, Copyright

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pp. 2-5

Contents

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pp. 6-7

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Editors’ Preface

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pp. vii-viii

Whitney Strub?s essay on the Roth obscenity case is remarkable inmany ways, first and foremost for turning what was, in his own words,a poorly executed Supreme Court attempt to define obscenity into asuperb survey of obscenity law. In short, Strub succeeds where JusticeWilliam Brennan and his brethren failed. But that is only part of this...

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Acknowledgments

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pp. ix-xii

Bruggeman over a beer at a bar trivia game, so in turn my thanksbegin with them too. From there, Michael Briggs was a receptive,responsive editor, and shepherded this project from proposal to finalmanuscript with grace and skill. For that matter, everyone at the Uni-versity Press of Kansas has been a delight to work with, and I truly...

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Introduction

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pp. 1-4

Before there was Jenna Jameson, before there was Larry Flynt, beforethere was Hugh Hefner, there was Samuel Roth. Unlike those lumi-naries of smut, he never became a household name. Without his shady,half-underworld publishing career and the legal case it engendered,however, the erotic media landscape might look very different.?The...

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Chapter 1. Toward Obscenity: Legal Evolution from Colonies to Comstock

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pp. 5-26

When Justice William Brennan, writing for the majority in Roth v.United States, excluded obscenity from the protections afforded by theFirst Amendment, he strove to ground that outcome in the broadercurrents of American history. Brennan argued that the Court in 1957was simply making manifest a status already implicit in the legal...

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Chapter 2. Modernizing Free Speech: Politics, Sex, and the First Amendment in the Early Twentieth Century

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pp. 27-48

In retrospect, one defense against obscenity charges remained con-spicuously absent from the courtroom as the new century began. Theconspicuousness was only retrospective, however; in the legal atmos-phere of 1900, few in the mainstream would have assigned the FirstAmendment any position of centrality in the debates over obscenity....

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Chapter 3. Samuel Roth, From Art to Smut

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pp. 49-70

Of the few things Samuel Roth is remembered for, none are flatter-some historical reality: that of the lowly immigrant achieving middle-class comforts through hardscrabble labor and ingeniousness; that ofthe white ethnic outsider seeking elusive inclusion in the Americanbody politic; and that of a developing mass culture with eyes toward...

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Chapter 4. The Absent Supreme Court: Obscenity Doctrine in the 1940s

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pp. 71-104

The three years, ending in 1939, that Samuel Roth spent in federalprison took their toll. Though he gradually eased into his sentence,he was forced to experience his children?s growth from adolescenceto early adulthood primarily through the letters he sent and received(as always, Pauline soldiered on in running the family business affairs)....

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Chapter 5. Cold War, Hot Lust: Sexual Politics in the 1950s

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pp. 105-137

When Roth lobbed his appeal at the Supreme Court, it failed to det-onate, and obscenity law retained its foggy mist. More literally effec-tive in generating explosions that year was the Soviet Union, whoseatomic testing paid off a few months after Roth?s loss. Numerous fac-tors generated what history came to know as the Cold War, but Soviet...

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Chapter 6. Anatomy of a Case

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pp. 138-160

In mid-1956, Roth v. U.S. (as it was retitled now that Samuel Roth wasthe appellant) had yet to take on major significance as a case. Roth wasa longtime offender, as Judge Cashin noted in sentencing him, and thiswas simply one more episode in a history dating back three decades. It might easily have remained that way, sliding into the middle of a...

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Chapter 7. Writing Roth: The Court Opines

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pp. 161-182

As the first substantive Supreme Court obscenity decision of thetwentieth century, Roth v. United States faced high expectations, notto mention inescapably intense scrutiny from all angles. Because thechief justice was on the side of the majority, he held the job of assign-ing the opinion (had he not been, the task would fall on the senior...

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Chapter 8. The Two Roths: Liberalization, Regulation, and the Apparent Paradox of Obscenity in the 1960s

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pp. 183-200

Sending Samuel Roth to prison for five years was a rather inauspiciousway to commence the project of obscenity liberalization. Yet this isprecisely what Roth spearheaded; an opinion that fell well into the con-servative range within the spectrum of doctrinal possibilities beforethe Court in 1957 quickly revealed itself as an instrument of opening...

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Chapter 9. From Porno Chic to New Critiques: Conservatives, Feminists, and Backlash to Obscenity

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pp. 201-222

The tenth anniversary of Roth v. United States went uncelebrated. One ofthe appellants from the original conjoined cases, David Alberts, hadlong since shifted into real estate. Samuel Roth, finally released fromprison just as the 1960s dawned, returned to his old ways, but thanks tothe case that bore his name he could freely sell the works of the Mar-...

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Epilogue: After Obscenity?

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pp. 223-230

Eight decades after Random House challenged obscenity law by pub-lishing James Joyce?s Ulysses, its Vintage imprint brought anotherauthor across the Atlantic to America. E. L. James carried less criti-cal weight than Joyce, coming not out of the literary avant-garde butrather the Internet world, where her Fifty Shades of Grey trilogy (as of...

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Major Cases Cited

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pp. 231-232

Adams Newark Theater Co. v. Newark, 120 A.2d 496 (1956); reversed, 126 A.2dAmerican Booksellers Association v. Hudnut, 598 F. Supp. 1316 (1984)Kingsley International Pictures v. Regents, 151 N.E.2d 197 (1958)Roth v. U.S., 237 F.2d 796 (1956), affirmed, 354 U.S. 476 (1957)Sunshine Book Company v. Summerfield, 128 F. Supp. 564 (1955), reversed, 355...

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Chronology

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pp. 233-236

Early 1840s Prosecutions of flash-press publications in New York CityNovember 1919 In Abrams v. U.S., Holmes gives new weight to ?clear and1928 Arrested for selling works including Lady Chatterley?s Lover,May 1955 Samuel Roth called before Kefauver Committee, is vilifiedFebruary 1956 Roth convicted by federal jury on four obscenity counts...

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Bibliographical Essay

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pp. 237-248

Note from the Series Editors: The following bibliographical essay contains the majorprimary and secondary sources the author consulted for this volume. We have asked allauthors in the series to omit formal citations in order to make our volumes more read-able, inexpensive, and appealing for students and general readers. In adopting thisformat, Landmark Law Cases and American Society follows the precedent of a num-...

Index

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pp. 249-268

Back Cover

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p. 282-282


E-ISBN-13: 9780700619757
Print-ISBN-13: 9780700619375

Page Count: 278
Publication Year: 2013

Research Areas

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Subject Headings

  • Roth, Samuel, 1893-1974 -- Trials, litigation, etc.
  • United States -- Trials, litigation, etc.
  • Trials (Obscenity) -- United States.
  • United States. Supreme Court.
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