413 U.S. 139 (1973), 70-69, United States v. Orito

Docket Nº:No. 70-69
Citation:413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513
Party Name:United States v. Orito
Case Date:June 21, 1973
Court:United States Supreme Court

Page 139

413 U.S. 139 (1973)

93 S.Ct. 2674, 37 L.Ed.2d 513

United States



No. 70-69

United States Supreme Court

June 21, 1973

Argued January 19, 1972

Reargued November 7, 1972




Appellee was charged with knowingly transporting obscene material by common carrier in interstate commerce, in violation of 18 U.S.C. § 1462. The District Court granted his motion to dismiss, holding the statute unconstitutionally overbroad for failing to distinguish between public and nonpublic transportation. Appellee relies on Stanley v. Georgia, 394 U.S. 557.

Held: Congress has the power to prevent obscene material, which is not protected by the [93 S.Ct. 2675] First Amendment, from entering the stream of commerce. The zone of privacy that Stanley protected does not extend beyond the home. See United States v. 12 200-ft. Reels of Film, ante p. 123; Paris Adult Theatre I v. Slaton, ante, p. 49. This case is remanded to the District Court [93 S.Ct. 2676] for reconsideration of the sufficiency of the indictment in light of Miller v. California, ante, p. 15; United States v. 12 200-ft. Reels of Film, supra, and this opinion. Pp. 141-145.

338 F.Supp. 308, vacated and remanded.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 145. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 147.

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BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

Appellee Orito was charged in the United States District Court for the Eastern District of Wisconsin with a violation of 18 U.S.C. 14621 in that he did

knowingly transport and carry in interstate commerce from San Francisco . . . to Milwaukee . . . by means of a common carrier, that is, Trans-World Airlines and North Central Airlines, copies of [specified] obscene, lewd, lascivious, and filthy materials. . . .

The materials specified included some 83 reels of film, with as many as eight to 10 copies of some of the films. Appellee moved to dismiss the indictment on the ground that the statute violated his First and Ninth Amendment rights.2 The District Court granted his motion, holding that the statute was unconstitutionally overbroad, since it failed to distinguish between "public" and "non-public" transportation of obscene material. The District Court interpreted this Court's decisions in Griswold v. Connecticut, 381 U.S. 479 (1965); Redrup v. New York, 386 U.S. 767 (1967); and Stanley v. Georgia, 394 U.S. 557 (1969), to establish

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the proposition that "non-public transportation" of obscene material was constitutionally protected.3

Although the District Court held the statute void on its face for overbreadth, it is not clear whether the statute was held to be overbroad because it covered transportation intended solely for the private use of the transporter, or because, regardless of the intended use of the material, the statute extended to "private carriage" or "nonpublic" transportation which, in itself, involved no risk of exposure to children or unwilling adults. The United States brought this direct appeal under former 18 U.S.C. § 3731 (1964 ed.) now amended, Pub.L. 91644, § 14(a), 84 Stat. 1890. See United States v. Spector, 343 U.S. 169, 171 (1952).

[93 S.Ct. 2677] The District Court erred in striking down 18 U.S.C. § 1462 and dismissing appellee's indictment on these "privacy" grounds. The essence of appellee's contentions is that Stanley has firmly established the right to possess obscene material in the privacy of the home, and that this creates a correlative right to receive it, transport it, or distribute it. We have rejected that reasoning. This case was decided by the District Court before our decisions in United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), and United States v. Reidel, 402 U.S. 351 (1971). Those holdings negate the idea that some zone of constitutionally protected privacy

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follows such material when it is moved outside the home area protected by Stanley.4 United States v. Thirty-seven Photographs, supra, at 36 (opinion of WHITE, J.). United States v. Reidel, supra, at 354-356. See United States v. Zacher, 332 F.Supp. 883, 885-886 (ED Wis.1971). But cf. United States v. Thirty-seven Photographs, supra, at 379 (STEWART, J., concurring). The Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, childrearing, and education. See Eisenstadt v. Baird, 405 U.S. 438, 453-454 (1972); Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, supra, at 486; Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). But viewing obscene films in a commercial theater open to the adult...

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