[4] Under the common law rule that prevailed before Roth, articulated most famously in the 1868 English case Regina v Hicklin, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis.

Samuel Roth, who ran an adult book-selling business in New York City, was convicted under a federal statute criminalizing the sending of "obscene, lewd, lascivious or filthy" materials through the mail for advertising and selling a publication called American Aphrodite ("A Quarterly for the Fancy-Free") containing literary erotica and nude photography.

The Court repudiated the Hicklin test and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" of the "average person, applying contemporary community standards."

Chief Justice Earl Warren worried that "broad language used here may eventually be applied to the arts and sciences and freedom of communication generally," but, agreeing that obscenity is not constitutionally protected, concurred only in the judgment.

By the time Miller was considered in 1973, Justice Brennan had abandoned the Roth test and argued that "no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression.