Roth - In Roth v. United States, 354 U.S. 476 (1957) the Supreme Court expressly held Hicklin unconstitutional. The test set forth in Roth is "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." In the Fanny Hill case, (A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts, 383 U.S. 413 (1966)), a plurality of the Supreme Court noted that subsequent cases had elaborated upon this definition of obscenity. The Memoirs three-prong test required that (1) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (2) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (3) the material is utterly without redeeming social value. Miller, 413 U.S. 15 (1973), in an attempt to set more concrete guidelines, converted the prurient appeal prong of the Roth test into "Whether the average person, applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest."

The Distinction Between Dominant Theme Taken as a Whole and Work Taken as a Whole - Under the Roth test, if material has prurient appeal, but prurience is not its dominant theme, the work is not obscene. For example, if some scenes of a film are sexually arousing but the dominant effect is depressing, the film is not obscene. A book that contains several sexual episodes is not obscene if these episodes are isolated and do not render the entire work sexually stimulating. In eliminating the "dominant theme" language, the Miller Court simplified the test using instead the phrase "work taken as a whole." The trier of fact need not now separate out the dominant and subordinate themes. Rather, the entire work must be distilled in order to get the flavor of it. No ingredient is ignored in determining whether the work appeals or does not appeal to the prurient interest.

Erotica Weighed Against a Work's Social Value - In Memoirs v. Massachusetts, Justice White, in a separate opinion, stated that under Roth social importance was not an independent test for obscenity "but is relevant only to determine the predominant prurient appeal of the material." This approach of "weighing" the "social importance" against the erotica seemed to be established by a majority of the Supreme Court in Kois v. Wisconsin, 408 U.S. 229 (1972), where the Court said that attempts at serious art "must be considered in assessing whether the dominant theme of the material is to prurient interest."

Dominant Theme Element Changed by Miller - While Miller did not rule out the use of the "dominant theme" concept it did suggest a change in wording substituting the work taken as a whole for this concept.

To see all of the cases in the Obscenity Law Reporter on "dominant theme," you can download a PDF version of this chapter. (262 KB file size)