United States v. Thirty-Seven (37) Photographs, Civ. No. 69-2242-F.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtBARNES, Circuit , and CURTIS and FERGUSON
Citation309 F. Supp. 36
PartiesUNITED STATES of America, Plaintiff, v. THIRTY-SEVEN (37) PHOTOGRAPHS, Defendants, Milton Luros, Claimant.
Decision Date27 January 1970
Docket NumberCiv. No. 69-2242-F.

309 F. Supp. 36

UNITED STATES of America, Plaintiff,
v.
THIRTY-SEVEN (37) PHOTOGRAPHS, Defendants,
Milton Luros, Claimant.

Civ. No. 69-2242-F.

United States District Court C. D. California.

January 27, 1970.


Wm. Matthew Byrne, Jr., U. S. Atty., Frederick M. Brosio, Jr., Larry L. Dier,

309 F. Supp. 37
Asst. U. S. Attys., Los Angeles, Cal., for plaintiff

Stanley Fleishman, Hollywood, Cal., for defendants and claimant.

Before BARNES, Circuit Judge, and CURTIS and FERGUSON, District Judges.

MEMORANDUM OPINION

FERGUSON, District Judge.

This is an action before a three-judge district court, convened pursuant to 28 U.S.C. §§ 2282 and 2284, to determine whether the government should be enjoined from enforcing 19 U.S.C. § 1305. That statute prohibits all persons from importing into the United States any obscene picture or book. It provides that when such an item appears at a customs office it shall be seized and held to await the judgment of a district court.

On October 24, 1969, Milton Luros returned to Los Angeles from a visit to Europe, arriving by plane. In his personal luggage he carried 37 photographs. In the course of an inspection, customs agents acting under authority of § 1305 seized the photographs as obscene. The agents referred the seizure to the United States Attorney, and on November 6, 1969, the Government filed its complaint seeking judicial authority to enforce the forfeiture of the photographs.

On November 14, 1969, the claimant filed an answer contending the photographs were not obscene. His counterclaim contends that § 1305 violates the First and Fifth Amendments, and seeks an injunction to restrain the government from enforcing the statute in relation to the 37 photographs.

The case presents a five-fold constitutional attack on § 1305, claiming that:

(1) It excludes from the United States photographs imported for use by adults in the privacy of their home.
(2) It excludes photographs which are to be distributed to adults only and in a manner which will not invade the sensitivities or privacy of anyone.
(3) It permits customs agents to seize and hold pictures without a time restraint.
(4) It permits a seizure prior to an adversary hearing.
(5) It is unconstitutionally vague.

The cornerstone of the attack, of course, is Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). There the Supreme Court minimally held that the First Amendment prohibits the making of mere private possession of obscene material a crime. The lower courts now are faced with whether Stanley means more than that. See Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass., Nov. 28, 1969); Stein v. Batchelor, 300 F.Supp. 602 (N.D.Texas 1969).

The claimant requests this court to hold that Stanley means that the First Amendment forbids any restraint of obscenity unless (1) it falls in the hands of children, or (2) it intrudes upon the sensitivities or privacy of the general public. Without rejecting this argument, we decide the case based upon the narrowest construction of Stanley.

19 U.S.C. § 1305 reaches all obscene works. It prohibits an adult from importing an obscene book or picture for private reading or viewing, an activity which is constitutionally protected. As stated in Stanley, the right to read necessarily protects the right...

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21 practice notes
  • United States v. 37 Photographs, THIRTY-SEVEN
    • United States
    • United States Supreme Court
    • May 3, 1971
    ...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 ......
  • Mandel v. Mitchell, No. 70 C 344.
    • United States
    • U.S. District Court — Eastern District of New York
    • March 18, 1971
    ...not impermissibly); Molpus v. Fortune, N.D.Miss.1970, 311 F.Supp. 240, 249; United States v. Thirty-seven (37) Photographs, C.D.Cal.1970, 309 F.Supp. 36, 38; Smith v. University of Tennessee, E.D.Tenn.1969, 300 F.Supp. 777, 780; Snyder v. Board of Trustees, N.D. Ill.1968, 286 F.Supp. 927, 3......
  • Meyer v. Austin, No. 69-678-Civ.-J.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 14, 1970
    ...(D.Mass., 1970); and the "right to read necessarily protects the right to receive" decision of United States v. Thirty-Seven Photographs, 309 F.Supp. 36 (C.D.Cal.), appeal filed, No. 1475, 38 U.S.L.W. 3433 (U.S., Apr. 24, 1970); United States v. Lethe, 312 F. Supp. 421 (E.D.Cal., 1970). Nei......
  • People v. Luros, Cr. 13153
    • United States
    • United States State Supreme Court (California)
    • February 18, 1971
    ...to calendar for reargument (1970) 399 U.S. 922, 90 S.Ct. 2235, 26 L.Ed.2d 789; United States v. Thirty-Seven Photographs (C.D.Cal.1970) 309 F.Supp. 36, probable jurisdiction noted (1970) 400 U.S. 817, 91 S.Ct. 34, 27 L.Ed.2d 44; United States v. Lethe (E.D.Cal.1970) 312 F.Supp. 421; United ......
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21 cases
  • United States v. 37 Photographs, THIRTY-SEVEN
    • United States
    • United States Supreme Court
    • May 3, 1971
    ...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 ......
  • Mandel v. Mitchell, No. 70 C 344.
    • United States
    • U.S. District Court — Eastern District of New York
    • March 18, 1971
    ...not impermissibly); Molpus v. Fortune, N.D.Miss.1970, 311 F.Supp. 240, 249; United States v. Thirty-seven (37) Photographs, C.D.Cal.1970, 309 F.Supp. 36, 38; Smith v. University of Tennessee, E.D.Tenn.1969, 300 F.Supp. 777, 780; Snyder v. Board of Trustees, N.D. Ill.1968, 286 F.Supp. 927, 3......
  • Meyer v. Austin, No. 69-678-Civ.-J.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 14, 1970
    ...(D.Mass., 1970); and the "right to read necessarily protects the right to receive" decision of United States v. Thirty-Seven Photographs, 309 F.Supp. 36 (C.D.Cal.), appeal filed, No. 1475, 38 U.S.L.W. 3433 (U.S., Apr. 24, 1970); United States v. Lethe, 312 F. Supp. 421 (E.D.Cal., 1970). Nei......
  • People v. Luros, Cr. 13153
    • United States
    • United States State Supreme Court (California)
    • February 18, 1971
    ...to calendar for reargument (1970) 399 U.S. 922, 90 S.Ct. 2235, 26 L.Ed.2d 789; United States v. Thirty-Seven Photographs (C.D.Cal.1970) 309 F.Supp. 36, probable jurisdiction noted (1970) 400 U.S. 817, 91 S.Ct. 34, 27 L.Ed.2d 44; United States v. Lethe (E.D.Cal.1970) 312 F.Supp. 421; United ......
  • Request a trial to view additional results

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