United States v. 12 200 Ft Reels of Super 8Mm Film 8212, No. 70

CourtUnited States Supreme Court
Writing for the CourtBURGER
PartiesUNITED STATES, Appellant, v. 12 200-FT. REELS OF SUPER 8MM. FILM et al. —2
Decision Date19 January 1972
Docket NumberNo. 70

413 U.S. 123
93 S.Ct. 2665
37 L.Ed.2d 500
UNITED STATES, Appellant,

v.

12 200-FT. REELS OF SUPER 8MM. FILM et al.

No. 70—2.
Argued Jan 19, 1972.
Reargued Nov. 7, 1972.
Decided June 21, 1973.

Syllabus

Congress, which has broad powers under the Commerce Clause to prohibit importation into this country of contraband, may constitutionally proscribe the importation of obscene matter, notwithstanding that the material is for the importer's private, personal use and possession. Cf. United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, distinguished. The District Court consequently erred in holding 19 U.S.C. § 1305(a) unconstitutional. This case is remanded to the District Court for reconsideration in light of the First Amendment standards newly enunciated by this Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, which equally apply to federal legislation, and this opinion. Pp. 124—130.

Vacated and remanded.

Appeal from the United States District Court for the Central District of California.

Sol. Gen. Erwin N. Griswold, for appellant.

Thomas H. Kuchel, Beverly Hills, Cal., as amicus curiae in support of the judgment below, by invitation of the Court.

Page 124

Mr. Chief Justice BURGER delivered the opinion of the Court.

We noted probable jurisdiction to review a summary decision of the United States District Court for the Central District of California holding that § 305(a) of the Tariff Act of 1930, 46 Stat. 688, as amended, 19 U.S.C. § 1305(a) was 'unconstitutional on its face' and dismissing a forfeiture action brought under that statute.1 The statute provides in pertinent part:

'All persons are prohibited from importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral . . .. No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the appropriate customs officer that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained, shall be subject to seizure and forfeiture as hereinafter provided . . .. Provided further That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may,

Page 125

in his discretion, admit such classics or books only when imported for noncommercal purposes.'

On April 2, 1970, the claimant Paladini sought to carry movie films, color slides, photographs, and other printed and graphic material into the United States from Mexico. The materials were seized as being obscene by customs officers at a port of entry, Los Angeles Airport, and made the subject of a forfeiture action under 19 U.S.C. § 1305(a). The District Court dismissed the Government's complaint, relying on the decision of a three-judge district court in United States v. Thirty-Seven Photographs, 309 F.Supp. 36 (CD Cal. 1970), which we later reversed, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). That case concerned photographs concededly imported for commercial purposes. The narrow issue directly presented in this case, and not in Thirty-Seven Photographs, is whether the United States may constitutionally prohibit importation of obscene material which the importer claims is for private, personal use and possession only.2

Import restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations. The Constitution gives Congress broad, comprehensive powers '(t)o regulate Commerce with foreign Nations.' Art. I, § 8, cl. 3. Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry. See United States v. Thirty-Seven Photographs, 402 U.S., at 376—377, 91 S.Ct., at 1408—1409

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(opinion of White, J.); Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925); Brolan v. United States, 236 U.S. 216, 218, 35 S.Ct. 285, 59 L.Ed. 544 (1915); Boyd v. United States, 116 U.S. 616, 623—624, 6 S.Ct. 524, 528—529, 29 L.Ed. 746 (1886); Alexander v. United States, 362 F.2d 379, 382 (CA9), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966). The plenary power of Congress to regulate imports is illustrated in a holding of this Court which sustained the validity of an Act of Congress prohibiting the importation of 'any film or other pictorial representation of any prize fight . . . designed to be used or (that) may be used for purposes of public exhibition'3 in view of 'the complete power of Congress over foreign commerce and its authority to prohibit the introduction of foreign articles . . .. Buttfield v. Stranahan, 192 U.S. 470 (24 S.Ct. 349, 48 L.Ed. 525); The Abby Dodge, 223 U.S. 166, 176 (32 S.Ct. 310, 56 L.Ed. 390). Brolan v. United States, 236 U.S. 216 (35 S.Ct. 285, 59 L.Ed. 544).' Weber v. Freed, 239 U.S. 325, 329, 36 S.Ct. 131, 132, 60 L.Ed. 308 (1915).

Claimant relies on the First Amendment and our decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). But it is now well established that obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), reaffirmed today in Miller v. California, 413 U.S. 15, at 23, 93 S.Ct. 2607, at 2614, 37 L.Ed.2d 419. As we have noted in United States v. Orito, 413 U.S. 139, at 141—143, 93 S.Ct. 2674, at 2677 2678, 37 L.Ed.2d 513, also decided today, Stanley depended, not on any First Amendment right to purchase or possess obscene materials, but on the right to privacy in the home. Three concurring Justices indicated that the case could have been disposed of on Fourth Amendment grounds without reference to the nature of the materials. Stanley v. Georgia, supra, 394 U.S., at 569, 89 S.Ct., at 1250 (Stewart, J., joined by Brennan and White, JJ., concurring).

In particular, claimant contends that, under Stanley, the right to possess obscene material in the privacy of

Page 127

the home creates a right to acquire it or import it from another country. This overlooks the explicitly narrow and precisely delineated privacy right on which Stanley rests. That holding reflects no more than what Mr. Justice Harlan characterized as the law's 'solicitude to protect the privacies of the life within (the home).' Poe v. Ullman, 367 U.S. 497, 551, 81 S.Ct. 1752, 1781, 6 L.Ed.2d 989 (1961) (dissenting opinion).4 The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth, or fifth 'logical' extension occurs. Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance.5 This kind of gestative propensity calls for the 'line drawing' familiar in the judicial, as in the legislative process: 'thus far but not beyond.' Perspectives may change, but our conclusion is that Stanley represents such a line of demarcation; and it is not unreasonable to assume that had it not been so delineated, Stanley would not be the law today. See United States v. Reidel, 402 U.S. 351, at 354—356, 91 S.Ct. 1410, at 1411—1413, 28 L.Ed.2d 813 (1971); id., at 357—360, 91 S.Ct., at 1413—1414 (Harlan, J., concurring). See also Miller v. United States, 431 F.2d 655, 657 (CA9 1970); United States v. Fragus, 428 F.2d

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1211, 1213 (CA5 1970); United States v. Melvin, 419 F.2d 136, 139 (CA4 1969); Gable v. Jenkins, 309 F.Supp. 998, 1000—1001 (ND Ga.1969), aff'd, 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595 (1970). Cf. Karalexis v. Byrne, 306 F.Supp. 1363, 1366 (D.Mass.1969), vacated on other grounds, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971).

We are not disposed to extend the precise, carefully limited holding of Stanley to permit importation of admittedly obscene materials simply because it is imported for private use only. To allow such a claim would be not unlike compelling the Government to permit importation of prohibited or controlled drugs for private consumption as long as such drugs are not for public distribution or sale. We have already indicated that the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others. United States v. Thirty-Seven Photographs, supra, 402 U.S., at 376, 91 S.Ct., at 1408 (opinion of White, J.), and United States v. Reidel, supra, 402 U.S., at 355, 91 S.Ct., at 1412. Nor is there any correlative right to transport obscene material in interstate commerce. United States v. Orito, supra, 413 U.S., at 142—144, 93 S.Ct., at 2677—2678.6 It follows that Stanley does not permit one to go abroad and bring such material into the country for private purposes. 'Stanley's emphasis was on the freedom of thought and mind in the privacy of the home. But a port of entry is not

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a traveler's home.' United States v. Thirty-Seven Photographs, supra, 402 U.S., at 376, 91 S.Ct., at 1408 (opinion of White, J.).

This is not to say that Congress could not allow an exemption for private use, with or without appropriate guarantees such as bonding, or permit the transportation of obscene material under conditions insuring privacy. But Congress has not seen fit to do so, and the...

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361 practice notes
  • American Booksellers Ass'n, Inc. v. Schiff, Civ. 85-0966 BB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 3, 1986
    ...regulating obscenity to conform to constitutional requirements whenever possible. United States v. 12 200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 2670 n. 7, 37 L.Ed.2d 500 (1973); see also Hamling v. United States, 418 U.S. 87, 110-17, 94 S.Ct. 2887, 2903-07, 41......
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...and dissenting opinions in Paris Adult Theatre I v. Slaton, Supra, United States v. 12 200-Ft. Reels of Super 8mm. Film, --- U.S. ---, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); Kaplan v. California, --- U.S. ---, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973), and United States v. Orito, --- U.S. ---, 93......
  • U.S. v. Whorley, No. 06-4288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 18, 2008
    ...or lack thereof, ultimately depends on the subjective view of at least five individuals. See U.S. v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 137, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (Douglas, J., dissenting) ("Moreover, by what right under the Constitution do five of us have to......
  • U.S. v. New Buffalo Amusement Corp., No. 444
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 22, 1979
    ...Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973), and United States v. 12 200-Foot Reels of Super 8 mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 2 Defendants did object to the admission into evidence of Government Exhibit 10, the Greyhound bus schedule. 3 Ap......
  • Request a trial to view additional results
361 cases
  • American Booksellers Ass'n, Inc. v. Schiff, Civ. 85-0966 BB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • November 3, 1986
    ...regulating obscenity to conform to constitutional requirements whenever possible. United States v. 12 200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 2670 n. 7, 37 L.Ed.2d 500 (1973); see also Hamling v. United States, 418 U.S. 87, 110-17, 94 S.Ct. 2887, 2903-07, 41......
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...and dissenting opinions in Paris Adult Theatre I v. Slaton, Supra, United States v. 12 200-Ft. Reels of Super 8mm. Film, --- U.S. ---, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); Kaplan v. California, --- U.S. ---, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973), and United States v. Orito, --- U.S. ---, 93......
  • U.S. v. Whorley, No. 06-4288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 18, 2008
    ...or lack thereof, ultimately depends on the subjective view of at least five individuals. See U.S. v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 137, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (Douglas, J., dissenting) ("Moreover, by what right under the Constitution do five of us have to......
  • U.S. v. New Buffalo Amusement Corp., No. 444
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 22, 1979
    ...Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973), and United States v. 12 200-Foot Reels of Super 8 mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 2 Defendants did object to the admission into evidence of Government Exhibit 10, the Greyhound bus schedule. 3 Ap......
  • Request a trial to view additional results

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