United States v. 37 Photographs, THIRTY-SEVEN

CourtUnited States Supreme Court
Writing for the CourtHARLAN; STEWART; Mr. Justice WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE; HARLAN; STEWART; BLACK
Citation91 S.Ct. 1400,402 U.S. 363,28 L.Ed.2d 822
Docket NumberTHIRTY-SEVEN,No. 133
Decision Date03 May 1971
PartiesUNITED STATES, Appellant, v. (37) PHOTOGRAPHS, Milton Luros, Claimant

402 U.S. 363
91 S.Ct. 1400
28 L.Ed.2d 822
UNITED STATES, Appellant,

v.

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

No. 133.
Argued Jan. 20, 1971.
Decided May 3, 1971.
Rehearing Denied June 14, 1971.

See 403 U.S. 924, 91 S.Ct. 2221.

Syllabus

Customs agents sezied 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, 85 S.Ct. 734, 13 L.Ed.2d 649 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, 89 S.Ct. 1243, 22 L.Ed.2d 542. 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. 370—373.

(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, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813. 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, 85 S.Ct. 734, 13 L.Ed.2d 649, 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.

Solicitor Gen. Erwin N. Griswold for appellant.

Stanley Fleishman, Hollywood, Cal., for appellees.

Page 365

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, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and second, that under Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); § 1305(a) could not validly be applied to the seized material. We shall deal with each of these grounds separately.

I

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, 85 S.Ct., at 739. 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 the 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, 85 S.Ct., at 739.

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, 88 S.Ct. 754, 755, 19 L.Ed.2d 966 (1968). So, too, in Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498

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, 91 S.Ct., at 429, 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, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). Accord, e.g., Haynes v. United States, 390 U.S. 85, 92, 88 S.Ct. 722, 727, 19 L.Ed.2d 923 (1968) (dictum); Schneider v. Smith, 390 U.S. 17, 27, 88 S.Ct. 682, 687, 19 L.Ed.2d 799 (1968); United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543, 545, 97 L.Ed. 770 (1953); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). This cardinal principle did not govern...

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  • U.S. v. Whorley, No. 06-4288.
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    ...of the home created no "correlative right to receive it, transport it, or distribute it"); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971) ("That the private user under Stanley may not be prosecuted for possession of obscenity in 550 F......
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498 cases
  • Mahaley v. Cuyahoga Metropolitan Housing Authority, Civ. A. No. C 71-251
    • United States
    • U.S. District Court — Northern District of Ohio
    • February 22, 1973
    ...be granted without reaching that question is one consistently sanctioned by the Supreme Court. United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932). In this case, it is possi......
  • Gooding v. Wilson 8212 26, No. 70
    • United States
    • United States Supreme Court
    • March 23, 1972
    ...since of course 'we lack jurisdiction authoritatively to construe state legislation.' United States v. Thirty-seven (37) Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1405, 28 L.Ed.2d 822 (1971). It matters not that the words appellee used might have been constitutionally prohibited under ......
  • Johnson v. Robison 8212 1297, No. 72
    • United States
    • United States Supreme Court
    • March 4, 1974
    ...of the statute is fairly possible by which the (constitutional) question(s) may be avoided.' United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822 (1971). Plainly, no explicit provision of § 211(a) bars judicial consideration of appellee's constit......
  • U.S. v. Whorley, No. 06-4288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 18, 2008
    ...of the home created no "correlative right to receive it, transport it, or distribute it"); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971) ("That the private user under Stanley may not be prosecuted for possession of obscenity in 550 F......
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