This section contains the nature of the case and procedural background.

In the Roth case, the constitutionality of 18 U.S.C. § 1461, which makes punishable the mailing of material that is 'obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character,' and Roth's conviction thereunder for mailing an obscene book and obscene circulars and advertising, was at issue. In the Alberts case, the constitutionality of § 311 of West's California Penal Code Ann., 1955, which makes it a misdemeanor to keep for sale, or to advertise, material that is 'obscene or indecent,' and Alberts' conviction thereunder for lewdly keeping for sale obscene and indecent books and for writing, composing, and publishing an obscene advertisement of them, was disputed. Roth, a New York publisher, and seller was convicted of mailing obscene advertising and an obscene book in violation of a federal statute barring the mailing of 'obscenity.' Alberts, engaged in the mail-order business, was convicted under a California law for 'lewdly keeping for sale obscene and indecent books' and 'publishing an obscene advertisement of them.' In Roth, the trial judge instructed the jury: 'The words `obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.' In Alberts, the trial judge applied the test whether the material has 'a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires.'

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