Possessing Pollution


On April 22, 1957, government attorney Roger Fisher appeared before the Supreme Court in defense of the federal obscenity statute, which criminalizes the distribution of obscene materials through the mails. Although the power of the federal and state governments to regulate obscenity had been assumed for nearly 170 years, Second Circuit Judge Jerome Frank’s concurrence in United States v. Roth had critically appraised the precarious historical, jurisprudential, and sociological foundation on which this presumption rested. Judge Frank concluded that although he was bound to uphold Samuel Roth’s conviction as a member of an inferior court, the Supreme Court’s “clear and present danger” precedent strongly implied the unconstitutionality of the federal obscenity statute.

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