Alberts conducted a mail-order business which sold sexually explicit materials. He was convicted in a Municipal Court in California on a misdemeanor complaint which found him guilty of selling lewd and obscene books and of composing and publishing an obscene advertisement for his products.
Did the California Penal Code's obscenity provisions, criminalizing the selling and distribution of obscene literature, violate the freedoms of speech and press as guaranteed by the First and Fourteenth Amendments?
The Court, speaking through Justice William J. Brennan, Jr. held 6 to 3 that obscenity was not "within the area of constitutionally protected speech or press" (Brennan would later reverse his position on this issue in Miller v. California (1973)). The majority noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Justice John Marshall Harlan II concurred in Alberts but dissented in Roth.
