309 F.Supp. 36 (C.D.Cal. 1970), Civ. 69-2242, United States v. Thirty-Seven (37) Photographs

• Docket Nº: Civ. 69-2242
• Citation: 309 F.Supp. 36
• Party Name: United States v. Thirty-Seven (37) Photographs
• Case Date: January 27, 1970
• Court: United States District Courts, 9th Circuit, Central District of California

Page 36

309 F.Supp. 36 (C.D.Cal. 1970)

UNITED STATES of America, Plaintiff,

v.

THIRTY-SEVEN (37) PHOTOGRAPHS, Defendants, Milton Luros, Claimant.

Civ. No. 69-2242-F.

United States District Court, C.D. California.

Jan. 27, 1970

Wm. Matthew Byrne, Jr., U.S. Atty., Frederick M. Brosio, Jr., Larry L. Dier,

Page 37

Asst. U.S. Attys., Los Angeles, Cal., for plaintiff.

Stanley Fleishman, Hollywood, Cal., for defendants and claimant.

Before BARNES, Circuit Judge, and CURTIS and FERGUSON, District Judges.

MEMORANDUM OPINION

FERGUSON, District Judge.

This is an action before a three-judge district court, convened pursuant to 28 U.S.C. §§ 2282 and 2284, to determine whether the government should be enjoined from enforcing 19 U.S.C. § 1305. That statute prohibits all persons from importing into the United States any obscene picture or book. It provides that when such an item appears at a customs office it shall be seized and held to await the judgment of a district court.

On October 24, 1969, Milton Luros returned to Los Angeles from a visit to Europe, arriving by plane. In his personal luggage he carried 37 photographs. In the course of an inspection, customs agents acting under authority of § 1305 seized the photographs as obscene. The agents referred the seizure to the United States Attorney, and on November 6, 1969, the Government filed its complaint seeking judicial authority to enforce the forfeiture of the photographs.

On November 14, 1969, the claimant filed an answer contending the photographs were not obscene. His counterclaim contends that § 1305 violates the First and Fifth Amendments, and seeks an injunction to restrain the government from enforcing the statute in relation to the 37 photographs.

The case presents a five-fold constitutional attack on § 1305, claiming that:

(1) It excludes from the United States photographs imported for use by adults in the privacy of their home.

'(2) It excludes photographs which are to be distributed to adults only and in a manner which will not invade the sensitivities or privacy of anyone.

(3) It permits customs agents to seize and hold pictures without a time restraint.

(4) It permits a seizure prior to an adversary hearing.

(5) It is unconstitutionally vague.

The cornerstone of the attack, of course, is Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). There the Supreme Court minimally held that the First Amendment prohibits the making of mere private possession of obscene material a crime. The lower courts now are faced with whether Stanley means more than that. See Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass., Nov. 28, 1969); Stein v. Batchelor, 300 F.Supp. 602 (N.D.Texas 1969).

The claimant requests this court to hold that Stanley means that the First Amendment forbids any restraint of obscenity unless (1) it falls in the hands of children, or (2) it intrudes upon the sensitivities of privacy of the general public. Without rejecting this argument, we decide the case based upon the narrowest construction of Stanley.

19 U.S.C. § 1305 reaches all obscene works. It prohibits an adult from importing an obscene book or picture for private reading or viewing, an activity which is constitutionally protected. As stated in Stanley, the right to read necessarily protects the right receive. The claimant does not contend, however, that he was merely going to bring the pictures into his own home. He admits that it is his intention to incorporate the pictures in a book for distribution.

The admission of claimant, that is, to distribute and not to view privately, does not prohibit his attack on invalidity of the statute. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct....