United States v. Orito 8212 69, No. 70

CourtUnited States Supreme Court
Writing for the CourtBURGER
Citation37 L.Ed.2d 513,413 U.S. 139,93 S.Ct. 2674
Docket NumberNo. 70
Decision Date19 January 1972
PartiesUNITED STATES, Appellant, v. George Joseph ORITO. —69

413 U.S. 139
93 S.Ct. 2674
37 L.Ed.2d 513
UNITED STATES, Appellant,

v.

George Joseph ORITO.

No. 70—69.
Argued Jan. 19, 1972.
Reargued Nov. 7, 1972.
Decided June 21, 1973.

Syllabus

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, 89 S.Ct. 1243, 22 L.Ed.2d 542. Held: Congress has the power to prevent obscene material, which is not protected by the 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, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446. This case is remanded to the District Court for reconsideration of the sufficiency of the indictment in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; United States v. 12 200-Ft. Reels of Film, supra, and this opinion. Pp. 141—145.

338 F.Supp. 308, vacated and remanded.

R. Kent Greenawalt, New York City, for appellant.

Solicitor Gen. Erwin N. Griswold for appellant on reargument.

James M. Shellow, Milwaukee, Wis., for appellee.

Page 140

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, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), to establish

Page 141

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. 91—644, § 14(a), 84 Stat. 1890. See United States v. Spector, 343 U.S. 169, 171, 72 S.Ct. 591, 593, 96 L.Ed. 863 (1952).

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, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), and United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). Those holdings negate the idea that some zone of constitutionally protected privacy

Page 142

follows such material when it is moved outside the home area protected by Stanley.4 United States v. Thirty-Seven Photographs, supra, 402 U.S., at 376, 91 S.Ct., at 1408 (opinion of White, J.). United States v. Reidel, supra, 402 U.S., at 354—356, 91 S.Ct., at 1411—1412. See United States v. Zacher, 332 F.Supp. 883, 885—886 (ED Wis.1971). But cf. United States v. Thirty-Seven Photographs, supra, 402 U.S., at 379, 91 S.Ct., at 1409 (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, child rearing, and education. See Eisenstadt v. Baird, 405 U.S. 438, 453—454, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972); Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); Griswold v. Connecticut, supra, 381 U.S., at 486, 85 S.Ct., at 1682; Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). But viewing obscene films in a commercial theater open to the adult public, see Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 65—67, 93 S.Ct. 2628, at 2639—2640, 37 L.Ed.2d 446 (1973), or transporting such films in common carriers in interstate commerce, has no claim to such special consideration.5 It is hardly necessary to catalog the myriad activities that may be lawfully con-

Page 143

ducted within the privacy and confines of the home, but may be prohibited in public. The Court has consistently rejected constitutional protection for obscene material outside the home. See United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, at 126—129, 93 S.Ct. 2665, at 2668—2669, 37 L.Ed.2d 500; Miller v. California, 413 U.S. 15, at 23, 93 S.Ct. 2607, at 2614, 37 L.Ed.2d 419; United States v. Reidel, supra, 402 U.S., at 354 356, 91 S.Ct., at 1411—1412 (opinion of White, J.); id., at 357 360, 91 S.Ct., at 1413—1414 (Harlan, J., concurring); Roth v. United States, 354 U.S. 476, 484—485, 77 S.Ct. 1304, 1308—1309, 1 L.Ed.2d 1498 (1957).

Given (a) that obscene material is not protected under the First Amendment, Miller v. California, supra; Roth v. United States, supra, (b) that the Government has a legitimate interest in protecting the public commercial environment by preventing such material from entering the stream of commerce, see Paris Adult Theatre I, supra, 413 U.S., at 57—64, 93 S.Ct., at 2635—2639, and (c) that no constitutionally protected privacy is involved, United States v. Thirty-Seven Photographs, supra, 402 U.S., at 376, 91 S.Ct., at 1408 (opinion of White, J.), we cannot say that the Constitution forbids comprehensive federal regulation of interstate transportation of obscene material merely because such transport may be by private carriage, or because the material is intended for the private use of the transporter. That the transporter has an abstract proprietary power to shield the obscene material from all others and to guard the material with the same privacy as in the home is not controlling. Congress may regulate on the basis of the natural tendency of material in the home being kept private and the contrary tendency once material leaves that area, regardless of a transporter's professed intent. Congress could reasonably determine such regulation to be necessary to effect permissible federal control of interstate commerce in obscene material, based as that regulation is on a legislatively determined risk of ultimate exposure to juveniles or to the public and the harm that exposure

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255 practice notes
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...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 S.Ct. 2674, 37 L.Ed.2d 513 (1973), further illuminates the elements of the Miller formula, as well as its mode of Considered and evaluated as indicated ......
  • U.S. v. Whorley, No. 06-4288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 18, 2008
    ...obscene material, even though it had established the right to possess the material in the privacy of the home"); United States v. Orito, 413 U.S. 139, 141, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) (holding that Stanley's tolerance of obscenity within the privacy of the home created no "correlat......
  • 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
    ...Congress to undertake "comprehensive federal regulation of interstate transportation of obscene material." See United States v. Orito, 413 U.S. 139, 143, 93 S.Ct. 2674, 2678, 37 L.Ed.2d 513 (1973). That is exactly what Congress has done in 18 U.S.C. § It is reasonable for Congress to view t......
  • Marks v. United States v. 1976, No. 75-708
    • United States
    • United States Supreme Court
    • March 1, 1977
    ...934, 935, 94 S.Ct. 3223, 41 L.Ed.2d 1171 (1974) (Brennan, J., dissenting), quoting United States v. Orito, 413 Page 198 U.S. 139, 148, 93 S.Ct. 2674, 2680, 37 L.Ed.2d 513 (1973) (Brennan, J., dissenting). I therefore would simply reverse. Mr. Justice STEVENS, concurring in part and dissenti......
  • Request a trial to view additional results
254 cases
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...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 S.Ct. 2674, 37 L.Ed.2d 513 (1973), further illuminates the elements of the Miller formula, as well as its mode of Considered and evaluated as indicated ......
  • U.S. v. Whorley, No. 06-4288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 18, 2008
    ...obscene material, even though it had established the right to possess the material in the privacy of the home"); United States v. Orito, 413 U.S. 139, 141, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) (holding that Stanley's tolerance of obscenity within the privacy of the home created no "correlat......
  • 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
    ...Congress to undertake "comprehensive federal regulation of interstate transportation of obscene material." See United States v. Orito, 413 U.S. 139, 143, 93 S.Ct. 2674, 2678, 37 L.Ed.2d 513 (1973). That is exactly what Congress has done in 18 U.S.C. § It is reasonable for Congress to view t......
  • Marks v. United States v. 1976, No. 75-708
    • United States
    • United States Supreme Court
    • March 1, 1977
    ...934, 935, 94 S.Ct. 3223, 41 L.Ed.2d 1171 (1974) (Brennan, J., dissenting), quoting United States v. Orito, 413 Page 198 U.S. 139, 148, 93 S.Ct. 2674, 2680, 37 L.Ed.2d 513 (1973) (Brennan, J., dissenting). I therefore would simply reverse. Mr. Justice STEVENS, concurring in part and dissenti......
  • Request a trial to view additional results
1 books & journal articles
  • Rethinking Democracy
    • United States
    • Political Research Quarterly Nbr. 63-1, March 2010
    • March 1, 2010
    ...States, 354 U.S. 476 (1957).Schenck v. United States, 249 U.S. 47 (1919).Stanley v. Georgia, 394 U.S. 557 (1969).United States v. Orito, 413 U.S. 139 (1973).United States v. Reidel, 402 U.S. 351 (1971).United States v. Thirty-Seven (37) Photographs, 402 U.S. 363 (1971).Village Books et al. ......

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