United States Court of Appeals Second Circuit 237 F. 2d 796 (2d cir., 1956)
[Editors' Note: Samuel Roth was convicted on four counts of mailing books, periodicals, and photographs in violation of a federal statute which punished the mailing of "obscene, lewd, lascivious or filthy . . ." materials. Roth appealed, attacking the constitutionality of the statute. The Court of Appeals sustained his conviction, as did the U.S. Supreme Court in an important decision. The Supreme Court's ruling is discussed below in the excerpt from Miller v. California. Here is an excerpt from the decision of the Court of Appeals. Judge Jerome Frank concurred with his colleagues on the Court of Appeals, despite having reservations about the constitutionality of the federal statute. He agreed with his colleagues that since the Supreme Court had said that the statute was valid, the Court of Appeals could not hold to the contrary. Nevertheless, in the Appendix to his decision, Judge Frank eloquently set out his reservations. We have deleted a few lengthy citations of cases, much of the judge's discussion of empirical research, and a few footnotes, and we have renumbered the footnotes as necessary.)
Reprinted with permission from 237 F. 2d 796. Copyright © 1957 by West Publishing Company.