402 U.S. 363 (1971), 133, United States v. Thirty-Seven (37) Photographs (Luros, Claimant)

Docket Nº:No. 133
Citation:402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822
Party Name:United States v. Thirty-Seven (37) Photographs (Luros, Claimant)
Case Date:May 03, 1971
Court:United States Supreme Court

Page 363

402 U.S. 363 (1971)

91 S.Ct. 1400, 28 L.Ed.2d 822

United States


Thirty-Seven (37) Photographs (Luros, Claimant)

No. 133

United States Supreme Court

May 3, 1971

Argued January 20, 1971




Customs agents seized as obscene photographs possessed by claimant Luros when he returned to this country from Europe on October 24, 1969. Section 1305(a) of 19 U.S.C. pursuant to which the agents acted, prohibits the importation of obscene material, provides for its seizure at any customs office and retention pending the judgment of the district court, and specifies that the collector of customs give information of the seizure to the district attorney, who shall institute forfeiture proceedings. The agents referred the matter to the United States Attorney, who brought forfeiture proceedings on November 6. Luros' answer denied that the photographs were obscene and counterclaimed that § 1305(a) was unconstitutional. He asked for a three-judge court, which, on November 20, was ordered to be convened. Following a hearing on January 9, 1970, the court on January 27 held § 1305(a) unconstitutional on the grounds that the statute (1) failed to meet the procedural requirements of Freedman v. Maryland, 380 U.S. 51, and (2) was overly broad as including within its ban obscene material for private use, making it invalid under Stanley v. Georgia, 394 U.S. 557.

Held: The judgment is reversed and the case remanded. Pp. 367-379.

309 F.Supp. 36, reversed and remanded.

MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded in Part I that § 1305(a) can be construed as requiring administrative and judicial action within specified time limits that will avoid the constitutional issue that would otherwise be presented by Freedman, supra. Pp. 367-375.

(a) In Freedman, unlike the situation here, the statute failing to specify time limits was enacted pursuant to state authority, and could not be given an authoritative construction by this Court to avoid the constitutional issue. P. 369.

(b) The reading into § 1305(a) of the time limits required by Freedman comports with the legislative purpose of the statute

Page 364

and furthers the policy of statutory construction to avoid a constitutional issue. Pp. 37373.

(c) Section 1305(a) may be constitutionally applied as construed to require intervals of no longer than 14 days from seizure of the goods to the institution of judicial proceedings for their forfeiture and no longer than 60 days from the filing of the action to final decision in the district court (absent claimant-induced delays). Pp. 373-374.

MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR. JUSTICE BLACKMUN, concluded in Part II that Congress' constitutional power to remove obscene materials from the channels of commerce is unimpaired by this Court's decision in Stanley, supra. Cf. United States v. Reidel, ante, p. 351. Pp. 375-377.

MR. JUSTICE HARLAN concluded that Luros, who stipulated with the Government that the materials were imported for commercial purposes, lacked standing to challenge the statute for overbreadth on the ground that it applied to importation for private use. P. 378.

MR. JUSTICE STEWART while agreeing that the First Amendment does not prevent the border seizure of obscene materials imported for commercial dissemination and that Freedman v. Maryland, 380 U.S. 51, imposes time limits for initiating forfeiture proceedings and completing the judicial obscenity determination, would not even intimate that the Government may lawfully seize literature intended for the importer's purely private use. P. 378.

WHITE, J., announced the Court's judgment and delivered an opinion in which (as to Part I) BURGER, C.J., and HARLAN, BRENNAN, STEWART, and BLACKMUN, JJ., joined, and in which (as to Part II), BURGER, C.J., and BRENNAN and BLACKMUN, JJ., joined. HARLAN, J., post, p. 377, and STEWART, J., post, p. 378, filed opinions concurring in the judgment and concurring in Part I of WHITE, J.'s opinion. BLACK, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 379. MARSHALL, J., filed a dissenting opinion, ante, p. 360.

Page 365

WHITE, J., lead opinion

MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR. JUSTICE BLACKMUN join. *

When Milton Luros returned to the United States from Europe on October 24, 1969, he brought with him in his luggage the 37 photographs here involved. United States customs agents, acting pursuant to § 305 of the Tariff Act of 1930, as amended, 46 Stat. 688, 19 U.S.C. § 1305(a),1

Page 366

seized the photographs as obscene. They referred the matter to the United States Attorney, who, on November 6, instituted proceedings in the United States District Court for forfeiture of the material. Luros, as claimant, answered, denying the photographs were obscene and setting up a counterclaim alleging the unconstitutionality of § 1305(a) on its face and as applied to him. He demanded that a three-judge court be convened to issue an injunction prayed for in the counterclaim. The parties stipulated a time for hearing the three-judge court motion. A formal order convening the court was entered on November 20. The parties then stipulated a briefing schedule expiring on December 16. The court ordered a hearing for January 9, 1970, also suggesting the parties stipulate facts, which they did. The stipulation revealed, among other things, that some or all of the 37 photographs were intended to be incorporated in a hard cover edition of The Kama Sutra of Vatsyayana, a widely distributed book candidly describing a large number of sexual positions. Hearing was held as scheduled on January 9, and on January 27 the three-judge court filed its judgment and opinion declaring § 1305(a) unconstitutional and enjoining its enforcement against the 37 photographs, which were ordered returned to Luros. 309 F.Supp. 36 (CD Cal.1970). The judgment of invalidity rested on two grounds: first, that the section failed to comply with the procedural requirements of

Page 367

Freedman v. Maryland, 380 U.S. 51 (1965), and second, that, under Stanley v. Georgia, 394 U.S. 557 (1969), § 1305(a) could not validly be applied to the seized material. We shall deal with each of these grounds separately.


In Freedman v. Maryland, supra, we struck down a state scheme for administrative licensing of motion pictures, holding

that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.

380 U.S. at 58. To insure that a judicial determination occurs promptly so that administrative delay does not, in itself, become a form of censorship, we further held, (1) there must be assurance,"by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film;" (2) "[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution"; and (3) "the procedure must also assure a prompt final judicial decision" to minimize the impact of possibly erroneous administrative action. Id. at 58-59.

Subsequently, we invalidated Chicago's motion picture censorship ordinance because it permitted an unduly long administrative procedure before the invocation of judicial action, and also because the ordinance, although requiring prompt resort to the courts after administrative decision and an early hearing, did not assure "a prompt judicial decision of the question of the alleged obscenity of the film." Teitel Film Corp. v. Cusack, 390 U.S. 139, 141 (1968). So, too, in Blount v. Rizzi, 400 U.S. 410

Page 368

(1971), we held unconstitutional certain provisions of the postal laws designed to control use of the mails for commerce in obscene materials. Under those laws, an administrative order restricting use of the mails could become effective without judicial approval, the burden of obtaining prompt judicial review was placed upon the user of the mails, rather than the Government, and the interim judicial order, which the Government was permitted, though not required, to obtain.pending completion of administrative action was not limited to preserving the status quo for the shortest fixed period compatible with sound judicial administration.

As enacted by Congress, § 1305(a) does not contain explicit time limits of the sort required by Freedman, Teitel, and Blount.2 These cases do not, however, require that we pass upon the constitutionality of § 1305(a), for it is possible to construe the section to bring it in harmony with constitutional requirements.

Page 369

It is true that we noted in Blount that "it is for Congress, not this Court, to rewrite the statute," 400 U.S. at 419, and that we similarly refused to rewrite Maryland's statute and Chicago's ordinance in Freedman and Teitel. On the other hand, we must remember that,

[w]hen the validity of an act of the Congress is drawn in question, and . . . a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

Crowell v. Benson, 285 U.S. 22, 62 (1932). Accord, e.g., Haynes v. United States, 390 U.S. 85, 92 (1968) (dictum); Schneider v. Smith...

To continue reading