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

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

{ 183 } Sending Samuel Roth to prison for five years was a rather inauspicious way to commence the project of obscenity liberalization. Yet this is precisely what Roth spearheaded; an opinion that fell well into the conservative range within the spectrum of doctrinal possibilities before the Court in 1957 quickly revealed itself as an instrument of opening culture to a new rush of films, books, and magazines addressing sexual matters in ever more direct manners. From the start, it seemed Roth had two faces, a conservative one that drew rebukes from the Court’s free-speech wing, and a liberal one that sharply curtailed the deployment of obscenity laws. On the latter front, Roth played a crucial role in setting in motion what general cultural memory recalls as “the sexual revolution.” Historians have called that phrase into question, noting the lengthy trajectory of sexual change generated by capitalism, urbanization, and other forces—as well as the limits of the “revolution.” The sexual contests of the 1960s did amass into a particularly visceral constellation, though, including everything from the birth control pill to the increasing visibility of the gay and lesbian rights movements. Sexuality at least seemed liberated, unbound. Roth undergirded this framework, providing expanding freedoms but also the borders within which those freedoms were contained. More graphic, more explicit depictions of sex and sexuality were allowable under its tenets, but prurience remained unprotected by the First Amendment—and remained a murky concept applied to those forms of sexual expression that fell outside normalcy. Samuel Roth would not be the last person imprisoned for publishing material officially deemed prurient. Obscenity doctrine fit well alongside other important Supreme Court cases involving contraceptive access, interracial marriage, and c h a p t e r 8 The Two Roths Liberalization, Regulation, and the Apparent Paradox of Obscenity in the 1960s abortion rights, all of which contributed to the sexual revolution while also fixing its parameters. The Court’s sexual-rights doctrine, historian Marc Stein writes, was “not broadly libertarian or egalitarian.” Instead, it created “special rights and privileges for adult, heterosexual , marital, monogamous, private, and procreative forms of sexual expression.” This is exactly what scholars mean when they talk about “heteronormativity,” which both equates heterosexuality with normalcy and also disciplines heterosexuality to conform to the model Stein describes. In other words, not only heterosexuality, but specific kinds of heterosexuality, reign supreme—the non-“prurient” kinds. The obscenity doctrine William Brennan devised in Roth was profoundly heteronormative. The events it set in motion can be told as two separate stories, the two faces of Roth. In one narrative, the case spawned what opponents would call a “floodtide of filth,” defending all sorts of publications that ranged from nudist magazines to hardcore pornographic films. If that represents the liberal side of Roth, it is matched by the conservative Roth, which allowed for the continued criminalization of obscene materials. This would send more people to prison and help mobilize a conservative political movement dedicated to rolling back the sexual revolution. This chapter tells the parallel stories of the two Roths. As paradoxical as they seem, their differences speak to the internal tensions of Roth itself. The liberal and the conservative complemented one another in Brennan’s opinion, which expanded free speech while reinforcing its boundaries. Some focused on that expansion, others on policing those limits. The two Roths were, of course, one, reflecting the legacy of the tortured history chronicled in the earlier chapters. History, however, can afford to stay messy; Supreme Court doctrine cannot. Roth left a perplexing doctrinal wasteland from which Brennan could not emerge with consistency intact, even after a decade of refinement and revision. Sex and the Singular Doctrine: The Liberal Roth If Brennan’s 1957 opinion left concerned observers wondering about its implications, the Court wasted little time clarifying with action. 184 { Chapter 8 } The next term saw a swift series of obscenity conviction reversals that cleared the path for nudist magazines, homosexual publications, and more adult cinema than the Hollywood studios were then producing. Roth, it suddenly seemed, promoted free expression after all. The first cases, in late 1957, involved the racy French film Game of Love, banned in Chicago, and a set of nudist magazines found obscene in Washington . The Court granted reprieves in per curiam opinions that simply invoked Roth, as it did again in early 1958 when it finally cleared Sunshine and Health from its years of...