The Supreme Court has held that obscenity is not protected by the First Amendment. The harder question is what counts as obscene. Five decisions, from 1957 to 2002, show how the Court has answered: a definition in Roth, a protected zone at home in Stanley, a three-part test in Miller, its use against adult theaters in Paris Adult Theatre, and a limit in Ashcroft.
A definition
Roth v. United States (1957), decided June 24, 1957. Roth was convicted under a federal statute that punishes mailing material that is "obscene, lewd, lascivious, or filthy." The companion case, Alberts, concerned a California misdemeanor for keeping obscene material for sale. Justice Brennan, for the Court, held that obscenity is not protected by the First Amendment, because "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." Sex and obscenity are not the same thing. Obscene material, the Court said, "deals with sex in a manner appealing to prurient interest," meaning material "having a tendency to excite lustful thoughts."
At home
Stanley v. Georgia (1969), decided April 7, 1969. Officers with a warrant to search Stanley's home for evidence of bookmaking found films in his bedroom, which were projected and judged obscene. Justice Marshall, for the Court, held that the First Amendment, as applied to the States through the Fourteenth, prohibits making mere private possession of obscene material a crime. "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."
The Miller test
Miller v. California (1973), decided June 21, 1973. Miller was convicted under California law for causing unsolicited brochures advertising books and a movie to be mailed. Chief Justice Burger, for the Court, reaffirmed Roth and set out guidelines for the trier of fact. A work may be regulated where, taken as a whole, it appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and does not have serious literary, artistic, political, or scientific value. The first question is whether "the average person, applying contemporary community standards" would find that the work appeals to the prurient interest.
Adult theaters
Paris Adult Theatre I v. Slaton (1973), decided the same day. Local officials in Georgia, the state district attorney and a city solicitor, brought a civil proceeding against adult theaters. Chief Justice Burger, for the Court, held that obscene material is not speech entitled to First Amendment protection, citing Miller and Roth. It also held that the Georgia civil procedure followed, assuming a constitutionally acceptable standard for deciding what is unprotected, met the standards of earlier decisions on procedure.
Pictures that are not obscene
Ashcroft v. Free Speech Coalition (2002), decided April 16, 2002. The Child Pornography Prevention Act of 1996 extended the federal ban on child pornography beyond images made using real children, to include other depictions that appear to be of minors engaging in sexually explicit conduct. The Ninth Circuit held the Act invalid on its face because it is substantially overbroad, banning materials that are neither obscene under Miller nor made by exploiting real children. The Supreme Court held that the prohibitions in two of the Act's provisions, §§ 2256(8)(B) and 2256(8)(D), are overbroad and unconstitutional.
What the five decisions show
Roth says obscenity is outside the First Amendment. Stanley says that does not reach private possession at home. Miller set out three questions, and Paris Adult Theatre held that obscene material is not protected when it is shown in adult theaters. Ashcroft shows the other limit: a law that sweeps in material that is neither obscene under Miller nor made by exploiting real children goes too far.
Sources
- Roth v. United States (1957), 354 U.S. 476: Library of Congress, U.S. Reports
- Stanley v. Georgia (1969), 394 U.S. 557: Library of Congress, U.S. Reports
- Miller v. California (1973), 413 U.S. 15: Library of Congress, U.S. Reports
- Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49: Library of Congress, U.S. Reports
- Ashcroft v. Free Speech Coalition (2002), 535 U.S. 234: Library of Congress, U.S. Reports
Updated November 2026.
This post was rewritten with AI (Claude) and reviewed by an editor before publication.
