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Abstract

It is true that the test set out in Roth v. United States is moribund. In a sense it was stillborn. While five Justices, only one of whom remains on the Court, joined in the majority opinion in Roth, that case only adumbrated certain considerations that later were forged into what has come to be known as the Roth test. No sooner did the forging process begin than the Court became fragmented on this issue, and a majority of the Justices has never since concurred in the test-certainly not in a compatible formulation of it. Today, it is not clear that anyone on the Court adheres to the test, other than its parent and guardian, Justice Brennan. The "requiem" for Roth, Professor Engdahl suggests, has been played in three recent obscenity cases, Ginzburg v. United States, Ginsberg v. New York, and Stanley v. Georgia. In a way, each of these cases can be attributed to an effort on the Court's part to utilize the suggestions of academic commentators aimed at improving or clarifying constitutional standards for obscenity. Dean Lockhart and Professor McClure were explicitly given credit for the concept of "variable obscenity" which formed the Court's conceptual basis in Ginsberg v. New York; but their ideas could also explain the other two cases as well. Each case proceeds on the premise that the constitutional law of obscenity could be made more rational if the Court focused less on the nature of the erotic material per se and looked more to the context in which it became the subject of a lawsuit.

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