Congress could ban material, "utterly without redeeming social importance," or in other words, "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." .
Justice John Marshall Harlan II dissented in Roth, involving a federal statute, but concurred in Alberts, involving a state law, on the grounds that while states had broad power to prosecute obscenity, the federal government did not.