Decision United States v. Thirty-seven Photographs

1 decision

1.1 majority opinion
1.2 concurrences
1.3 dissents

decision

the court handed down decision in case in may 1971, on same day reidel. in both cases, majorities had declined extend stanley cover distribution of obscene material. justice white wrote both opinions.

in thirty-seven photographs, 2 of justices had joined majority, john marshall harlan , potter stewart, wrote concurrences. hugo black , william o. douglas, both of whom had long made clear believed government had no business forbidding obscenity, wrote extensive dissent critical of elements of white s opinion. thurgood marshall wrote separate concurrence in reidel explained reasons dissenting in thirty-seven photographs.

majority opinion

unlike situation in freedman, justice white observed, challenged statute federal, rather state. thus, possible construe section bring in harmony constitutional requirements. reviewed legislative history of section 1305 , found senators during debate had been concerned putting power in hands of low-level official. result, bill amended allow review.

at time, no time requirement included. perhaps senators, justice white speculated, had not seen need so, but, 4 decades later, there was. in cases, months had passed between seizure , hearing. [f]idelity congress purpose dictates read explicit time limits section, wrote. otherwise, possible resolution case hold statute unconstitutional, that, too, had been prevented severability provision. based on other such statutes time-limit provision, justice white found 14 days apt requirement.

justice white did not find analogy stanley convincing. case did not support right import obscene materials private use. [a] port of entry not traveler s home. right let alone neither prevents search of luggage nor seizure of unprotected, illegal, materials when possession of them discovered during such search.

concurrences

justices harlan , stewart had joined first part of white s opinion, creating 14-day rule freedman. harlan chose defend statute luros s claim overbroad, district court had not ruled on , did not have addressed majority. incontestable 19 u.s.c. § 1305(a) intended cover, @ least, importation of obscene materials commercial purposes, wrote. since parties stipulated materials imported commercial purposes, luros cannot claim primary conduct not intended within statute s sweep. holding stanley covered importation of obscene material private use force reconsideration of constitutionality of entire statute, due severability clause, , harlan thought should avoided since not necessary decide question in order resolve case.

stewart s short concurrence differed justice white , other justices on applicability of stanley holding importation of obscene material private use. terms of statute appear apply american tourist who, after exercising constitutionally protected liberty travel abroad, returns home single book in luggage, no intention of selling or otherwise using it, except read it, wrote. if government can constitutionally take book away him passes through customs, not understand meaning of stanley v. georgia .

dissents

at beginning of dissent, justice black reiterated opposition concept of obscenity beyond reach of constitution. in view, first amendment denies congress power act censor , determine books our citizens may read , pictures may watch. found objectionable majority had returned aspect of roth holding, since court s own jurisprudence since had found concept difficult define. after roth, our docket , of other courts have been crowded cases judges called upon decide whether particular book, magazine, or movie may banned. have expressed before view can imagine no task court of lifetime judges less equipped deal. such, had thought court beginning abandon roth. since had instead affirmed in both of cases decided day, warned that:

... foreseeable future, court must sit board of supreme censors, sifting through books , magazines , watching movies because official fears deal explicitly sex. can imagine no more distasteful, useless, , time-consuming task members of court perusing material determine whether has redeeming social value. absurd spectacle avoided if adhere literal command of first amendment congress shall make no law ... abridging freedom of speech, or of press.

justice black turned specific issues majority. had not found explanation of how district court had erred in applying stanley importation of images private use. general matter, wrote, [t]he mere act of importation private use can hardly more offensive others private perusal in 1 s home. right read , view literature , pictures @ home hollow indeed if not include right carry material privately in 1 s luggage when entering country. nor did find majority s specific reason, travelers returning abroad , luggage routinely subject search, compelling since police search private home reasons unrelated suspected possession of obscene material.

perhaps, speculated, majority had assumed, without saying so, import ban necessary prevent distribution of obscene material through domestic commercial channels. however, analogous argument had been rejected in stanley, and, general principle, court had held in other first amendment cases restriction on protected rights served state interest had narrowly tailored interest. since plurality did not make distinction, can conclude that, @ least 4 members of court overrule stanley. or perhaps, in future, case recognized law when man writes salacious books in attic, prints them in basement, , reads them in living room.

justice black criticized imposition of 14-day time limit on textualist basis, approach commonly employed. majority should have found statute unconstitutional lacking 1 , affirmed district court on basis, leaving actual revision of section 1305 congress. was, court s action represents seizure of legislative power not possess under constitution.

there specific problems action in instant case. justice black argued legislative history of statute s adoption, majority had used basis imposing limit, did not, in fact, support action, since referred version of statute never adopted. in previous obscenity-related cases, court had held statutes amended bring them constitutional compliance, had declined so. nor had let severability provisions stop such holdings.

since not find time limit justified either previous jurisprudence or legislative history of statute, justice black suspected majority deriving them first amendment itself. if so, found it:

... both peculiar , disturbing. rules not derived considering first amendment demands, surveying litigated cases , guessing limits not pose undue hardship on government , lower federal courts. scant attention given first amendment rights of persons entering country. gives little comfort american bringing book home colorado or alabama personal reading informed without explanation 74-day delay @ new york harbor not undue. faced such lengthy legal proceedings , need hire lawyer far home, coerced giving first amendment rights. thus, whims of customs clerks or congestion of business determine americans may read.

marshall s dissent, @ reidel, distinguished case thirty-seven photographs noting delivery of obscene material via mail presented hazard children or unwilling recipients exposed it, state had interest in preventing, whereas luros exposed photographs. [t]he seized items in purely private possession , threatened neither children nor else.

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