United States v. Thirty-seven Photographs
| United States v. Thirty-seven Photographs | |
|---|---|
 First Amendment require exception for importation of such material for private use. Central District of California reversed and remanded | |
| Court membership | |
| |
| Case opinions | |
| Majority | White, joined by Burger, Harlan, Brennan, Stewart and Blackmun |
| Concurrence | Harlan |
| Concurrence | Stewart |
| Dissent | Black, joined by Douglas |
| Dissent | Marshall |
| Laws applied | |
| U.S. Const. Amendment I; 19 USC 1305 | |
United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), is a
The case began with the seizure of the photographs, depicting various
Justice Byron White wrote for the majority, distinguishing the case from Freedman v. Maryland, which had also involved time limits, by noting that it was a federal statute rather than a state one and therefore the Court could give it an authoritative construction. John Marshall Harlan and Potter Stewart also wrote concurring opinions expanding on aspects of the majority holding. Stewart did not agree with the majority that the ban on personal importation of obscene material was consistent with Stanley v. Georgia.
The
Background of the case
For most of
That began to change during the 20th century, in response to social and
In some of those cases, like Memoirs v. Massachusetts, the justices realized their Roth standard was inadequate, but they could not agree on a new one.[4] The search for a workable legal definition of obscenity led to Potter Stewart's famous line "I know it when I see it", in Jacobellis v. Ohio.[5] Other Court decisions restricted the scope under which obscenity could be suppressed. Freedman v. Maryland held that local film boards could not ban films, effectively eliminating them, and had to approve a film within a specified time.[6] In Stanley v. Georgia, the Court held that possession of obscene material in the privacy of the home was constitutionally protected as well.[7]
Underlying dispute
In October 1969, Milton Luros, a former
Two weeks later, lawyers with the office of
In district court
The law provided for contested forfeitures to be heard by a panel of three judges, similar to an
Ferguson wrote for the panel, which
Instead, Ferguson found the due-process claims much more relevant. Freedman had held that any statutory process by which obscene material was seized and potentially suppressed must explicitly require a hearing within a brief period of the time of seizure. While Luros admitted that the government had moved to hold a forfeiture hearing within a reasonable time period of the photographs' seizure, it still took 76 days until the court had heard the case. "All concede that under present statutory procedures it could not have been accomplished any sooner." The delay was also not necessarily due to bureaucratic delays. Ferguson observed that "Section 1305 does not prohibit customs agents from long delaying judicial determination. The First Amendment does not permit such discretion." Having reached that conclusion, he declined to consider Luros's other arguments and ordered the photographs returned following a 30-day stay to allow the government time to appeal if it wished to do so.[12]
Before the Court
The government appealed directly to the Supreme Court, as statute allowed it to do so, and was granted certiorari. The Court heard oral arguments almost a year later, on the same day as United States v. Reidel, another case directly appealed from the Central District of California challenging, under Stanley as well, the prohibitions against mailing obscene material to willing adult recipients.
Fleishman argued for Luros and the photographs again.
Decision
The Court handed down its decision in the case in May 1971, on the same day as Reidel. In both cases, the majorities had declined to extend Stanley to cover the distribution of obscene material. Justice White wrote both opinions.
In Thirty-seven Photographs, two of the justices who had joined the majority, John Marshall Harlan and Potter Stewart, also wrote concurrences. Hugo Black and William O. Douglas, both of whom had long made it clear they believed the government had no business forbidding obscenity, wrote an extensive dissent critical of all elements of White's opinion. Thurgood Marshall wrote a separate concurrence in Reidel that also explained his reasons for dissenting in Thirty-seven Photographs.
Majority opinion
Unlike the situation in Freedman, Justice White observed, the challenged statute was federal, rather than state. Thus, "it is possible to construe the section to bring it in harmony with constitutional requirements."[13] He reviewed the legislative history of Section 1305 and found that senators during debate had been concerned about putting so much power in the hands of a low-level official. As a result, the bill was amended to allow for review.[14]
At that time, no time requirement was included. Perhaps those senators, Justice White speculated, had not seen a need to do so, but, nearly four decades later, there was. In some cases, months had passed between the seizure and the hearing. "[F]idelity to Congress' purpose dictates that we read explicit time limits into the section," he wrote. Otherwise, the only possible resolution to the case was to hold the statute unconstitutional, but that, too, had been prevented by a severability provision. Based on other such statutes with a time-limit provision, Justice White found 14 days to be an apt requirement.[15]
Justice White did not find the analogy to Stanley convincing. That case did not support a right to import obscene materials for private use. "[A] port of entry is not a traveler's home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search."[16]
Concurrences
Justices Harlan and Stewart had also joined the first part of White's opinion, creating the 14-day rule from Freedman. Harlan chose to defend the statute from Luros's claim that it was
Stewart's short concurrence differed with Justice White and the other justices over the applicability of the Stanley holding to the importation of obscene material for private use. "The terms of the statute appear to apply to an American
Dissents
At the beginning of his dissent, Justice Black reiterated his opposition to the concept of obscenity as completely beyond the reach of the Constitution. "In my view, the First Amendment denies Congress the power to act as censor and determine what books our citizens may read and what pictures they may watch." He found it most objectionable that the majority had returned to that aspect of the Roth holding, since the Court's own jurisprudence since then had found the concept difficult to define. "After Roth, our docket and those of other courts have constantly been crowded with cases where judges are called upon to decide whether a particular book, magazine, or movie may be banned. I have expressed before my view that I can imagine no task for which this Court of lifetime judges is less equipped to deal." As such, he had thought the Court was beginning to abandon Roth. Since it had instead affirmed it in both of the cases that it decided that day, he warned that:
... for the foreseeable future, this Court must sit as a Board of Supreme Censors, sifting through books and magazines and watching movies because some official fears they deal too explicitly with sex. I can imagine no more distasteful, useless, and time-consuming task for the members of this Court than perusing this material to determine whether it has "redeeming
social value." This absurd spectacle could be avoided if we would adhere to the literal command of the First Amendment that "Congress shall make no law ... abridging the freedom of speech, or of the press."[19]
Justice Black turned to specific issues with the majority. He had not found its explanation of how the district court had erred in applying Stanley to the importation of images for private use. As a general matter, he wrote, "[t]he mere act of importation for private use can hardly be more offensive to others than is private perusal in one's home. The right to read and view any literature and pictures at home is hollow indeed if it does not include a right to carry that material privately in one's luggage when entering the country." Nor did he find the majority's specific reason, that travelers returning from abroad and their luggage are routinely subject to search, compelling since it was just as likely that police would search a private home for reasons unrelated to suspected possession of obscene material.[note 1][20]
Perhaps, he speculated, the majority had assumed, without actually saying so, that the
Justice Black also criticized the imposition of the 14-day time limit on a
There were also specific problems with that action in the instant case. Justice Black also argued that the legislative history of the statute's adoption, which the majority had used as a basis for imposing this limit, did not, in fact, support its action, since it referred to a version of the statute that was never actually adopted. In previous obscenity-related cases, where the Court had held that the statutes could be amended to bring them into constitutional compliance, it had declined to do so. Nor had it let severability provisions stop such holdings.[23]
Since he could not find the time limit justified by either previous jurisprudence or the legislative history of the statute, Justice Black suspected the majority was deriving them from the First Amendment itself. If that was so, he found it:
... both peculiar and disturbing. The rules are not derived by considering what the First Amendment demands, but by surveying previously litigated cases and then guessing what limits would not pose an "
coerced into giving up his First Amendment rights. Thus, the whims of customs clerks or the congestion of their business will determine what Americans may read.[24]
Marshall's dissent, at Reidel, distinguished that case from Thirty-seven Photographs by noting that the delivery of obscene material via the mail presented the hazard that children or unwilling recipients would be exposed to it, which the state had an interest in preventing, whereas only Luros would be exposed to the photographs. "[T]he seized items were then in his purely private possession and threatened neither children nor anyone else.[25]
Subsequent jurisprudence
The Supreme Court got a chance to reconsider Thirty-seven Photographs very quickly. While it reached a broader, similar conclusion, the law was eventually repealed, and there were no further cases. The case has also been cited for its procedural holdings in other forfeiture cases.
United States v. 12 200-ft. Reels of Film
Shortly after the case had been heard in district court, another, very similar seizure action started the next case that would allow the Supreme Court to revisit the issues of Thirty-seven Photographs, with a key difference. In April 1970, a
Another in rem case, United States v. 12 200-ft. Reels of Super 8MM. Film et al, began. This time, the claimant insisted the subject materials were intended for purely private and personal use, and they asserted, as Luros had, that Stanley permitted such importation. A similar panel relied on its predecessor's opinion in Thirty-seven Photographs and likewise held Section 1305 unconstitutional, not just for the procedural shortcomings but as a violation of the First Amendment on its face. The government appealed to the Supreme Court, which decided to hear what was now United States v. 12 200-ft. Reels of Film.[26]
Justices Black and Harlan, both of whom died shortly thereafter, retired before the October 1971 term began. With their seats vacant, the case would be argued twice, along with four other obscenity-related cases the Court had decided to take.
The decisions in all five cases were announced on the same day at the end of the term, since one was
Chief Justice
Other cases
Most later jurisprudence that has relied on Thirty-seven Photographs has referred to its requirement of a time limit for forfeiture proceedings. Within six months, the
It has also been a touchstone case for the Court's standard of review. Later cases cited it as reaffirming the principle by which the Court avoids ruling on the constitutionality of a statute if it can find a way to construe the statute such that the constitutional question is avoided.[note 5] In New York v. Ferber, its landmark 1982 holding that child pornography was outside First Amendment protection, the Court clarified that under Thirty-seven Photographs, if such a construction was impossible but the statute was severable, only the unconstitutional portions should be invalidated.[32]
See also
- List of United States Supreme Court cases, volume 402
- List of United States Supreme Court cases by the Burger Court
- List of United States Supreme Court cases involving the First Amendment
Notes
- ^ As had occurred in Stanley.
- plurality, since it does not command a majority of the justices.
- ^ By the 21st century, three decades after Thirty-seven Photographs was decided, this was actually possible and practical.
- ^ Alternatively known by the in rem name United States v. One Package of Antiques and Indian Jewelry.
- ^ The language quoted where the case is cited to this effect—"It is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided"—is actually from a much earlier case, Crowell v. Benson, 285 U.S. 22, 62 (1932), Hughes, C.J. The Court itself quoted this section in Lorillard v. Pons, (434 U.S. 575, 577, (1978), Marshall, J.). The Third Circuit's citation of this in Cox v. Keystone Carbon Co., 861 F.2d 390, 393 note 4 (3rd Cir.,1988), is the most notable lower-court reference.
References
- ^ United States v. One Book Called Ulysses, 5 F.Supp. 182 (S.D.N.Y., 1933).
- ^ United States v. One Book Entitled Ulysses, by James Joyce, 72 F.2d 705 (2nd Cir., 1934)
- ^ Roth v. United States, 354 U.S. 476 (1957).
- ^ Memoirs v. Massachusetts, 383 U.S. 413 (1966).
- ^ Jacobellis v. Ohio, 378 U.S. 184 (1964).
- ^ Freedman v. Maryland, 380 U.S. 51 (1965).
- ^ Stanley v. Georgia, 394 U.S. 557 (1969).
- ^ Saunders, David (2009). "Milton Luros (1911–1999)". pulpartist.com. Retrieved March 25, 2011.
- ^ a b United States v. Thirty-seven (37) Photographs, 390 F.Supp. 36, 37 (C.D. Cal., 1970).
- ^ United States v. Thirty-seven Photographs, 402 U.S. 363, 366, (1971), White, J.
- Brennan, J., concurring, quoted at 309 F.Supp at 37
- ^ a b 309 F.Supp. at 38.
- ^ Thirty-seven Photographs, 402 U.S. at 368.
- ^ Thirty-seven Photographs, 402 U.S. at 369–71.
- ^ Thirty-seven Photographs, 402 U.S. at 371–73.
- ^ Thirty-seven Photographs, 402 U.S. at 376.
- ^ Thirty-seven Photographs, 402 U.S. at 377–78, Harlan, J., concurring.
- ^ Thirty-seven Photographs, 402 U.S. at 378–79, Stewart, J., concurring.
- ^ Thirty-seven Photographs, 402 U.S. at 379–80, Black, J., dissenting.
- ^ Thirty-seven Photographs, 402 U.S. at 380–81.
- ^ Thirty-seven Photographs, 402 U.S. at 381–82.
- ^ Thirty-seven Photographs, 402 U.S. at 382–83.
- ^ Thirty-seven Photographs, 402 U.S. at 383–87.
- ^ Thirty-seven Photographs, 402 U.S. at 387.
- ^ United States v. Reidel, 402 U.S. 351, 361, (1973), Marshall, J., dissenting.
- ^ Burger, C.J.
- ^ Reels of Film, 413 U.S. at 128.
- ^ Reels of Film, 413 U.S. at 137, Douglas, J., dissenting.
- Brennan, J., dissenting.
- ^ Sarkisian v. United States, 472 F.2d 468, 472 (10th Cir., 1973).
- ^ May v. United States, 515 F.Supp. 600 (S.D. Ohio, 1981)
- ^ New York v. Ferber, 454 U.S. 747, 769 note 24, (1982), White, J. "Furthermore, if the federal statute is not subject to a narrowing construction and is impermissibly overbroad, it nevertheless should not be stricken down on its face; if it is severable, only the unconstitutional portion is to be invalidated."
External links
Works related to United States v. Thirty-seven Photographs at Wikisource- Text of United States v. Thirty-seven Photographs, 402 U.S. 363 (1971) is available from: Findlaw Google Scholar Justia Library of Congress Oyez (oral argument audio)
- United States v. 37 Photographs, 402 U.S. 363 (1971)
