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

Chapter 6. Anatomy of a Case

c h a p t e r 6 Anatomy of a Case { 138 } In mid-1956, Roth v. U.S. (as it was retitled now that Samuel Roth was the appellant) had yet to take on major significance as a case. Roth was a longtime offender, as Judge Cashin noted in sentencing him, and this was simply one more episode in a history dating back three decades. It might easily have remained that way, sliding into the middle of a law-review footnote and out of historical memory, had outside circumstances not intervened. On appeal, Roth’s case reached the same court that had ruled against him in 1949, but this time federal appellate judge Jerome Frank wrote an even more impassioned opinion— albeit yet again in perversely concurring form. The Frank concurrence bestowed visibility on Roth v. United States, at the precise moment that the Supreme Court finally acknowledged it could no longer sit out the obscenity debate. While the facts of Roth were fairly unexceptional, its constitutional issues, as a federal case that directly challenged the Comstock Act, gave it an importance the other state-level obscenity cases the Court also took on lacked. It was Roth that would define the relationship of obscenity to the First Amendment. This chapter traces the anatomy of the case as it took shape through Roth’s legal arguments, the appellate court’s response, and the briefs, oral arguments, and internal deliberations of the Supreme Court. Though Samuel Roth’s fate is sealed by this chapter’s end, chapter seven goes on to examine the obscenity doctrine that emanated out of his case. Speaking Frankly Roth’s appeal reached the Second Circuit Appellate Court in June 1956. On appeal, the nature of the case shifted from such trial con- cerns as witness testimony to matters of constitutionality and procedural integrity, but nothing in his legal brief stood out as particularly innovative: Judge Cashin had improperly distinguished “filth” (which aroused “disgust and revulsion”) from obscenity (which hinged on lust and lasciviousness); the government had established no clear and present danger in Roth’s mailings; some of the evidence had been obtained through forgery, ordered by government agents under fake names; the prosecutor’s comments to the jury had been inflammatory; the jurors had shown confusion about the charges; and Roth had not received a fair trial. The government’s brief responded in kind with its own pro forma rebuttal, simply brushing aside many of Roth’s claims, with an accurate claim that mail orders under fake names had long been upheld by the courts. Though the court took three months to hand down its decision, Judge Charles Clark clearly did not spend that time carefully composing the court’s opinion. In leaden, boilerplate prose, Clark affirmed the conviction, declining to “initiate a new and uncharted course” by overturning the federal obscenity statute that Roth considered unconstitutional . The Comstock law, after all, was “long regarded of vital social importance and a public policy of wide general support.” To Roth’s supporting arguments—that the trial judge had included the word “filthy” in his charge to the jury, and that federal agents had committed entrapment by ordering his publications—Clark paid only nominal attention. He considered it a “serious problem” when “real literature is censored,” but since Roth’s wares were “only salable pornography,” no closer review was necessary. After all, Clark noted, the “strongly held views of those with competence in the premises” linked smut to juvenile delinquency. For an “old hand” at sending “such lurid pictures and material,” no cause for judicial sympathy existed. As a weary Clark concluded, “indeed this case and our discussion somewhat duplicate his earlier appearance in Roth v. Goldman .” While the Waggish Tales of the Czechs case of eight years earlier had been civil rather than criminal, Clark was correct in many ways. And with a bland opinion representing a technically unanimous court, Roth’s latest challenge might have ended there, without much substantive ground for a further appeal, save for yet another bizarre concurrence by Jerome Frank. Once again, Frank wrote a lengthy, impas- { Anatomy of a Case } 139 sioned essay that read as a dissent, and a rather polemical one at that, only to wind itself back up into a concurrence. Frank’s actual opinion was short and pointed, beginning with a confrontational questioning of Clark’s reference to juvenile delinquency . Obscenity, Frank reminded...