Two questions.?

Question

First question:
During my research for one of my papers, I came across a statement that I didn't understand. According to the author of an online guide entitled "Agnosticism / Atheism" by Austin Cline, Roth VersusUnited States "specifically rejected the test developed in the British case Regina v. Hicklin" Why was this case tried in the American legal system and not the England one?
Second question:
It is my understanding that previous cases decleared obsenity not one of the rights of speech. In Roth versus United states, Justice Clark said that such a case as was argued by Roth would not be opened with out the consent of the Supreme Court due to previous rulings and strong evodence of
constitutionality. Could one assume based on evidence that the Supreme Court decleared obsenity not one of the previsions allotted in the first amendment therefore upholding that the statute is constitutional, the supreme court decided to reconsider the case?

Answer 1

You have some good questions. To address them, I think it would be to our benefit to review the history of obscenity laws in brief in America:

First of all, it bears mention that the first amendment, which protects free speech, was never meant to be entirely unlimited. Rather, speech acts which produced certain kinds of effects were outlawed on the basis of those effects. So treason, fraud, and the like are still crimes, even though you have freedom of speech. It gets a little stickier, though, when you get to the question of obscenity.

You're right in pointing out that the definition of obscenity before Roth v U.S. derived from England. Obviously, English courts were not trying American cases... what really happened is that after the judges decided this case in England and word got around, their definition of obscenity seemed reasonable enough that similar rulings were made in many other courts, including American ones. Their oft-quoted definition was:

"...the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."

The problem with this definition is that it swept all kinds of things under the banner of 'obscene'. Many people objected to the idea that nothing unsuitable to a child could be legally displayed and distributed, regardless of how good or important it was. The American version was called the 'Comstock Law', and banned not only 'obscenity' but also anything intended for the prevention of contraception and other odds and ends.

Thus, even before the groundbreaking case of Roth v U.S., the question of whether it was illegal to send adult material through the mail was fairly well decided in courts beforehand, if not necessarily to everyone's satisfaction. Roth fought it, however, and not to no end - the new interpretation wouldn't help Roth much, but it did sharply narrow the definition of 'obscenity' to this:

...material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." Also, it must be "utterly without redeeming social importance."

This meant that everything that 'corrupted the youth' was now perfectly okay, as long as it wasn't LUSTFUL (a.k.a. prurient) in content, defined by the community standards. The social importance clause even establishes exceptions.

Thus, with a stroke, they resolved a lot of the problems with the law that had required expensive litigation to resolve before. The law was now no more strict than the community was and only concerned with sexual corruption instead of the hundreds of other kinds of conceivable corruptions that might be imagined. What's more, as long as what you were doing was of social benefit, you could cross that boundary too - so good art and sexual education classes, for example, wouldn't be illegal.

Still, this wouldn't be the end of things. Even this definition would be worked on later. Nowadays, even lustful and unredeeming material is considered protected... just as long as it doesn't depict, nor is distributed to minors.

That seems to cover your questions. A pretty good and more in-depth timeline is linked below. Hope that helps!