The Warren Court (1953–69)

Freedom of Expression

How did the Warren Court deal with obscenity and the First Amendment?

The Warren Court ruled in Roth v. United States (1957) that obscenity was a category of expression not entitled to First Amendment protection. Writing for the majority, Justice William Brennan reasoned that “obscenity is not within the area of constitutionally protected speech or press.” He noted that for years, many states had passed laws outlawing obscene material. However, the difficult task was fashioning a test that judges could use to distinguish unprotected obscenity from sexual expression deserving of protection. In Roth, Brennan fashioned the following test: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” In later cases, the Warren Court modified its test for obscenity to include three parts: (1) whether the dominant theme of the material appeals to the prurient interest; (2) whether the material is patently offensive; and (3) whether the material is utterly without redeeming social value.


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