Jurisdictional Statement — Church of Scientology v. Blumenthal

Supreme Court, U.S

FILED

JAN 25 1979

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OcToBER TERM, 1978

“ %8-1166

THE CHURCH OF SCIENTOLOGY OF CALIFORNIA,

on its own behalf and on behalf of its members,

Davip W. JAMES,

KENNETH WHITMAN,

Appellants,

v.

W. MicHar, BLUMENTHAL,

Secretary of the Treasury, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

JURISDICTIONAL STATEMENT

LEonARD B. Boupin

Eric M. LigBERMAN

Rabinowitz, Boudin, Standard,

Krinsky & Lieberman

30 East 42nd Street

New York, New York 10017

Attorneys for Appellants

Of Counsel:

H. Peter YouNG

1725 The Promenade, No. 516

Santa Monica, California 90401

MicHaEL L. HERTZBERG

275 Madison Avenue

New York, New York 10016

January, 1979

INDEX

PAGE

Opinion Below ‘ 2

Jurisdiction .... — ee

Questions Presented ...... 3

Constitutional and Statutory Provisions Involved ...... 4

I, ao sassasnistnnninanieipeascoainnn 5

The Questions Are Substantial ................... 10

Conclusion .... ; 27

Appenpix A—Opinion of the District Court ................ la

Aprenpix B—Judgment of the District Court ............ 10a

Apprenpix C—Notice of Appeal ...............:c:cccccccecceseseeeeeees lla

TABLE OF AUTHORITIES

Cases:

Alexamder v. United States, 362 F.2d 379 (9th Cir.

a csttadlnseebiiedinds 19

Amador-Gonzalez v. United States, 391 F.2d 308 (5th

Cir. 1968) ......... a 18, 19, 20

Aptheker v. United States, 378 U.S. 500 one 21

Blount v. Rizzi, 400 U.S. 410 NET OOC MOL MS 23, 26

Boyd v. United States, 116 U.S. 616 -..0000 10, 19

Brandenburg v. Ohio, 395 U.S. 444 oe. 8, 9, 21

Bat

ii

PAGE

Carroll v. Presidents & Commissioners of Princess

Anne, 393 U.S. 175 ........ waee00, 26

Coolidge v. New Hampshire, 403 U.S. 443 2000.0... eeeeeeeee 20

Corngold v. United States, 367 F.2d 1 (9th Cir. 1966) 20

Dennis v. United States, 341 U.S. 494 21

Freedman v. Maryland, 380 U.S, 51 0.2... eeseeeeeeeeeee 24, 25

Gitlow v. Kiely, 44 ¥'.2d 227 (S.D.N.Y. 1930) .................. 23

Green v. United States, 386 F.2d 953 (10th Cir. 1967) 20

Healy v. James, 408 U.S. 169 ma 25

Hess v. Indiana, 414 U.S. 105 24

Jones v. United States, 357 U.S. 493 ooo. cece teeeeeeee 18

Katz v. United States, 389 U.S. 347 ..... ‘ 20

Kelly v. United States, 197 F.2d 162 (5th Cir. 1952) ...... 20

Klein v. United States, 471 F.2d 847 (9th Cir. 1973) ..... 19

Klemdienst v. Mamdel, 408 U.S. 753 000000000000... 15

Lamont v. Postmaster General, 381 U.S. 301 ................ 14, 15

McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976)

Cee ee i slasiammeshs 21

Marcus v. Search Warrant, 367 U.S. 717 .2......0.....c0200000000- 14

Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y.

1917), reversed 246 F. 24 (2d Cir. 1918) Noo ey

Murgia v. United States, 285 F.2d 14 (9th Cir. 1967),

cert. den., 866 U.S. 977 ...... OREM oS Aa a 10

Near v. Mimmesota ex rel. Olson, Ss 24

New York Times Co. v. Sullwwan, 376 U.S. 254 00000000000... 14

New York Times Co. v. United States, 403 US. 718 ...... 24

iii

PAGE

Organization for a Better Austin v. Keefe, 402 U.S. 415 25

Police Department v. Mosley, 408 U.S. 92 25

Powell v. Stone, 507 F.2d 93 (9th Cir. 1974) rev’d on

other grounds, 482 U.S. 465 a. ae

Procunier v. Martinez, 416 U.S. 396 ..... 15

Quantity of Copies of Books v. Kansas, 378 U.S. 209 .... 14

Roaden v. Kentucky, 413 U.S. 494 2... eececceeceseeceeeeee 14, 25

Speiser v. Randall, 357 U.S. 513 3 na

Stanford v. Texas, 379 U.S. 476 ............ 14, 15

rs a IE Mii secichscevscssnciesibtensnensonmiscicnies 20

Tinker v. Des Moines Independent Community School

District, 393 U.S. 508 .. : as

United States ex rel Milwaukee Social Democrat Pub.

Co. v. Burleson, 255 U.S. 407 .............ccecccccescceccscceccecseess 22

United States v. Diamond, 471 F.2d 771 (9th Cir. 1973) 19

United States v. Doe, 472 F.2d 982 (2d Cir. 1972) ........ 17

United States v. Head, 416 F.Supp. 840 (S.D.N.Y.

| PRESEASON caer SE SD Oe 17,19

United States v. King, 517 F.2d 350 (5th Cir. 1975) ........ 16

United States v. Milroy, 538 F.2d 1033 (4th Cir. 1976) 16

United States v. Poller, 63 F.2d 911 (2d Cir. 1930) ........ 15

United States v. Ramsey, 431 U.S. 606 ....0.00.00000000..... passim

United States v. Sohnen, 298 F.Supp. 51 (E.D.N.Y.

Eo ESRI IRC SENSE CN ear oro Acad NSE 17,19

United States v. Swede, 326 F.Supp. 533 (S.D.N.Y.

SIE Niudsictiishapildcinsntnichhnmeteliiebiocdiniiniiditli eaten geste hll 19

United States v. Thirty-Seven Photographs, 402 U.S.

363 ct bs reat NOE ES TORE RD 15, 21, 25, 26

iv

PAGE

United States v. United States District Court, 407 U.S.

297 14, 20

United States v. Van Leeuwen, 397 U.S. 249 16

United States v. Wilmot, 563 F.2d 1298 (9th Cir. 1977) 13

Whitney v. California, 274 U.S, 357 23

Yates v. United States, 354 U.S. 298 8

Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) (en

banc), cert. denied 425 U.S. 944 . iii 10

Zurcher v. Stanford Daily, 436 U.S. 547 .000000000........ 14, 15, 25

Constitution, Statutes and Regulations:

United States Constitution—

First Amendment ...... passim

Fourth Amendment .... " ... passim

Statutes—

ge ky RTS NLM SR 8S 22

8 ee eT RL OT Le passim

WD. A Be cccdenetnnrteiitelintindinaiiniisnicitpleciabaagaa passim

Se TI I aeecretticccenctienipictinibitiatinicegciie liane. 2

Re Ty FRR Reeser ed LNT oe 9

SP AAR SII cciscesetncenenianlinesnpncceiasiniaanituasas 2

SB WIG, 9 DG evinced ah ceiabas 2

The Espionage Act of 1917, 40 Stat. 217, Title 12,

BO. 8 wenecsenicssrrnicrieisisbbinaiitiaiaibiiammicg teri Miia 1 22

FE niceantscngenesniscininineinns ansbeiginiaatinaiaea odd. 2

v

PAGE

Rules and Regulations—

BP RIN I iecteentncnensacnsnechsecmavenescsossvssonsasseoee’ nee 11

OT i calssapuumtntinianbennces 1

Rs RI IED cicinetsossossdsacsscsoscantoadcsnenovssoucseds ce 1

Miscellaneous Authorities:

Chafee, Free Speech in the United States (1941) .......... 22

a BNNs: PD ciciciissicccceecccsiccniscaniorcbseiversonssessoces 23

H.R. Rep. No. 7, 71st Cong., 1st Sess. (1930) .............. 22

In THE

Supreme-Court of the United States

Octoser Term, 1978

Tue Cuurcu or ScrentToLocy or CALIFORNIA

on its own behalf and on behalf of its members,

Davin W. James, KennetH WHITMAN,

Appellants,

v.

W. Micware.t BLUMENTHAL,

Secretary of the Treasury, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

JURISDICTIONAL STATEMENT

The appellants, the Church of Scientology of California,

David W. James and Kenneth Whitman, appeal from the

judgment of the United States District Court for the Cen-

tral District of California, entered on October 13, 1978,

denying their motion for a preliminary injunction and

dismissing the underlying action.’ This statement is sub-

1 Since the commencement of the action, W. Michael Blumenthal

has replaced William Simon as Secretary of the Treasury, and he

is here substituted as appellee in place of Mr. Simon. See U.S.

Sup. Ct. R.48(3) ; Fed. R.Civ.P. 25(d). The other appellees, listed

here because of their number, are: Vernon D. Acree, Commis-

2

mitted to show that the Court has jurisdiction over the

appeal and that substantial questions are presented.

Opinion Below

The opinion of the district court (App. A, pp. la-1la) is

not yet reported.

Jurisdiction

This is an appeal from a judgment of a three-judge dis-

trict court which was convened under former 28 U.S.C.

§4§ 2282, 2284? to consider the constitutionality of 19 U.S.C.

§ 1305 and other constitutional issues raised by appellees’

conduct. The district court’s judgment (Appendix B) was

entered on October 13, 1978. A notice of appeal (Appendix

C) was filed in the district court on November 8, 1978. On

December 27, 1978, Mr. Justice Rehnquist extended the

time within which to file a Jurisdictional Statement and

docket the appeal to and including January 26, 1979. The

Court has jurisdiction to hear a direct appeal from the

judgment under 28 U.S.C. § 1253.

sioner of Customs; George C. Corcoran, Jr., Assistant Commis-

sioner of Customs Investigations; Albert Bergerson, Regional Com-

missioner of Customs; Robert S. Baker, Regional Director of

Investigations, United States Customs Service; John Brady, Dis-

trict Director of the United States Customs Service; Kenneth

Ascheim, Agent in Charge of Los Angeles District Office of In-

vestigations, United States Customs Service; Michael Peel, Special

Agent, United States Customs Service; Larry Hoyle, Inspector,

United States Customs Service.

* Sections 2282 and 2284 were repealed by the Act of August 12,

1976, Public Law 94-381, 90 Stat. 1119, but the repealing law

does not apply to actions commenced before the date of its enact-

ment. The complaint was filed on July 7, 1976.

Questions Presented

1. Whether the First and Fourth Amendments prohibit

customs inspectors from reading papers and correspon-

dence sent to the United States without obtaining a warrant

upon probable cause to believe that importation of the doc-

uments would violate United States customs laws?

2. Whether the First and Fourth Amendments and 19

U.S.C. §482 prohibit customs inspectors from reading

papers and correspondence sent to the United States absent

reasonable cause to suspect that importation of the docu-

ments would violate United States customs laws?

3. Whether the detention and general search of cor-

respondence by customs agents for evidence of any crimes

may be deemed a “border search” éxempt from the Fourth

Amendment requirement of a warrant issued upon prob-

able cause?

4, Whether 19 U.S.C. §1305 is unconstitutional for

prohibiting the importation of written material merely

“advocating or urging treason or forcible resistance to any

law of the United States,” without requiring that the pro-

scribed written advocacy be directed to inciting or produc-

ing imminent lawless action and be likely to incite or pro-

duce such action?

5. Whether 19 U.S.C. § 1305 is unconstitutional in im-

posing a prior restraint upon non-obscene written advocacy

without prior judicial approval and without a subsequent

immediate judicial determination that the advocacy is not.

constitutionally protected?

4

Constitutional and Statutory Provisions Involved

The First Amendment to the United States Constitution

provides:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise there-

of ; or abridging the freedom of speech, or of the press;

or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

The Fourth Amendment to the United States Constitution

provides :

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly describ-

ing the place to be searched, and the persons or things

to be seized.

19 U.S.C. §482 provides in relevant part:

SEARCH OF VEHICLES AND PERSONS

Any of the officers or persons authorized to board or

search vessels may stop, search, and examine, as well

without as within their respective districts, any vehicle,

beast, or person, on which or whom he or they shall

suspect there is merchandise which is subject to duty,

or shall have been introduced into the United States

in any manner contrary to law, whether by the person

in possession or charge, or by, in, or upon such vehicle

or beast, or otherwise, and to search any trunk or en-

velope, wherever found, in which he may have a reason-

4)

able cause to suspect there is merchandise which was

imported contrary to law; .

19 U.S.C. $1305 provides in relevant part:

Immorat Artictes: PROHIBITION oF IMPORTATION

(a) All persons are prohibited from importing into

the United States from any foreign country any book,

pamphlet, paper, writing, advertisement, circular,

print, picture, or drawing containing any matter ad-

vocating or urging treason or insurrection against the

United States, or forcible resistance to any law of the

United States, or containing any threat to take the life

of or inflict bodily harm upon any person in the United

States, or 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, or any drug or medicine

or any article whatever for causing unlawful abortion,

or any lottery ticket, or any printed paper that may be

used as a lottery ticket, or any advertisement of any

lotiery. No such articles whether imported separately

or contained in packages with other goods entitled to

entry, shall be admitted to entry; ...

Statement of the Case

On July 3, 1976, two shipments of three cardboard

boxes sent by air cargo from the Worldwide Church of

Scientology in England to the Church of Scientology of

California (“the Church”) arrived at the British Airways

office at Los Angeles International Airport. Michael Moore,

a member of the Church went to the airport that evening

to obtain the packages.

6

The packages were accurately marked as containing doc-

uments of no commercial value (Moore Aff., p. 2).? They

each were filled with sealed envelopes of correspondence,

both personal and Church-related, and internal Church

memoranda, directives, financial data, legal correspondence,

religious communications, articles for Church publications

and information concerning the religious beliefs and activi-

ties of individual Church members (id., p. 1).

On July 3, Larry Hovle, a Customs Inspector at the Los

Angeles International Airport, was requested to clear the

three boxes for entry into the United States (Hoyle Aff.,

p. 2).4 Hoyle stated in a later hearing that in accordance

with “normal customs policy”, he ordered Moore to open

the boxes and “most” of the envelopes contained therein

(Hoyle Tr. 42, 43).5 Hoyle then removed documents from

the envelopes and began to read them (Hoyle Tr. 43); he

gave no reason for that unauthorized reading. He stated

that his reading disclosed “references to the CIA, Interpol,

debugging, decoding machine, sabotage and other matters

... which made him “[dis]satisfied with what [he] saw”

(Hoyle Tr. 43, 44; Hoyle Aff., p. 5). Hoyle and his super-

visor decided that the documents should be detained and

examined by a Customs Special Agent (Hoyle Aff., p. 2).

*The notation “Moore Aff.” refers to an affidavit of Michael

Moore dated July 8, 1976. This and other documents referred to

remain part of the record before the district court. Copies will be

lodged with the Court upon request.

* The notation “Hoyle Aff.” refers to an affidavit of Larry Heyle,

dated July 14, 1976.

* The letters “Tr.” refer to pages in the transcript of a hearing

held before Judge Gray in this case on August 31, 1976.

* Moore stated that Hoyle told him: “I don’t like this. I’m not

ot to release the shipment. I’m going to hold it” (Moore Aff.

p. 3).

7

On July 4, 1976, Customs Special Agent Michael Peel

“briefly reviewed the materials contained in the three boxes

and concluded that they should be detained for further

screening” (Peel Aff., p. 2).7 He “transported the three

boxes to Terminal Island, California, for further review

and for safekeeping” (Peel Aff., p. 2).

During the next three days Peel read and re-read every

document in the boxes*® (Peel Tr. 55, 84) in a search for

evidence of violations of 19 U.S.C. § 1305 or “other viola-

tions of the law” and “evidence of crime” (Peel Tr. 53, 54).

He stated that he felt no need to obtain a warrant in order

to read the documents (Peel Tr. 90-91).

Upon reviewing “all the documents” Peel concluded that

none could be imported for reasons other than possible

violation of 19 U.S.C. § 1305, t.e., because they “were doc-

uments of an intelligence organization that were evidence

of crimes of both Internal Revenue Service tax fraud laws,

possibly violations of the statutes enforced by the Federal

Bureau of. Investigation and other agencies” (Peel Tr.

60-61).

Additionally, four other customs officials reviewed the

private documents of the Church and its members (Peel

Tr. 59-61). Peel also consulted with several Assistant

United States Attorneys (Peel Tr. 41). On July 7, 1976,

the Bureau of Customs determined that the correspondence

and other documents were outside the purview of 19 U.S.C.

§ 1305 and must be returned to the Church (Tr. 96-97).

7 The notation “Peel Aff.” refers to an affidavit of Michael Peel,

dated July 15, 1976.

* A fourth box containing a mixture of full and empty enve-

lopes was found on the loading dock of British Airways on July

5, 1976, and delivered to Peel on the following day. He placed it

with the three other boxes he already had seized.

8

On the same day, appellants brought this action seeking

the convening of a three-judge court to review the con-

stitutionality of 19 U.S.C. $1305, and for declaratory

and injunctive relief and damages. Appellants alleged that

section 1305 was unconstitutional on its face and as applied

because, inter alia, (1) it proscribed the importation of

written material abstractly advocating treason or insur-

rection against the United States, contrary to the stan-

dards of Yates v. United States, 354 U.S. 298, and Branden-

burg v. Ohio, 395 U.S. 444; and (2) it imposed a prior re-

straint upon the importation of non-obscene written advo-

cacy without prior judicial review embodied in a warrant

or an immediate judicial hearing. Appellants argued that

since section 1305 supplied the only colorable statutory

authority for barring the importation of written material

into the United States, the search and seizure of the docu-

ments was unlawful.

Appellants also urged that the search and seizure of their

papers and private correspondence were unlawful under the

First and Fourth Amendments and 19 U.S.C. §482 because

the customs agents had not obtained a warrant for the

search of the documents and did not have probable cause

to believe or even reasonable grounds to suspect that im-

portation of the papers would violate United States

customs laws. Appellants sought an order enjoining en-

forcement of section 1305, prohibiting the government from

further copying or dissemination of the seized papers, and

requiring the government to return to them all copies of

the papers.

On July 9, 1976, District Judge William P. Gray issued a

temporary restraining order prohibiting the appeilees from

making and disseminating copies or notes of the materials

in the four boxes. Appellees were permitted, however, to

disclose the contents of the boxes to the United States At-

9

torney for the Central District of California, who could

make a single copy of “such material as he finds appropri-

ate for criminal evidentiary purposes or for defense

against any damage claims.” ®

Following an evidentiary hearing Judge Gray continued

his restriction against further government dissemination

of the retained materials or information derived from any

of the materials in the four boxes (Hearing of August 31,

1976, pp. 113-166). The judge also certified constitutional

questions arising from the government’s actions under

19 U.S.C. §1305 to a three-judge court (id. at pp. 116-118).

On April 24, 1978, a three-judge court was convened

pursuant to 28 U.S.C. §2281, comprised of Circuit Judge

Stanley N. Barnes and District Judges Gray and Warren

J. Ferguson. In an opinion dated October 13, 1978, the

court rejected all of the appellants’ claims and dismissed

the action. While acknowledging that section 1305 on its

face proscribed “mere advocacy” of unlawful actions, the

district court construed the section as prohibiting the im-

portation only of written advocacy intended or likely to

incite immincnt lawless action, thus incorporating the stan-

dard of Brandenburg v. Ohio, supra (App. A at 4a). The

court also rejected the claim that § 1305 permitted an un-

constitutional prior restraint of non-obscene First Amend-

ment expression, holding that the “very short” delay in

the instant case had not amounted to a constitutional

deprivation (Id. at 5a).

Turning to the actual searches, the court held that

Agent Hoyle’s initial opening of the packages and enve-

lopes and reading of the documents were lawful on the

ground that a border search of papers and private cor-

*On the same day, Agent Peel made one copy of certain ma-

terials in the boxes and delivered them to Assistant United States

Attorney Dooley (Peel Tr. 58, 59; Peel Aff., p. 3).

10

respondence is reasonable per se even without reasonable

cause to believe that the documents are not importable (id.,

6a). It upheld the subsequent “more intrusive” reading of

the documents at Terminal Island as a legitimate border

search predicated upon a “real suspicion” arising from

the initial search (id., 7a). It also observed that the corre-

spondence reviewed at Terminal Island was in “plain view,”

as a result of the initial search and seizure at the airport

(id., 8a).

The Questions Are Substantial

I

This is the first case ever presented to this Court in

which United States customs employees, pursuant to a pur-

ported border search, have detained and read papers and

private correspondence without obtaining a warrant and

without having even reasonable cause to suspect that im-

portation of the papers would violate United States customs

laws. While this Court and the lower federal courts long

have justified warrantless border searches for physical

contraband on less than probable cause, they always have

emphasized that such searches “are totally different things

from a search for and seizure of a man’s private books and

papers,” Boyd v. United States, 116 U.S. 616, 623; Murgia

v. United States, 2865 F.2d 14, 17 (9th Cir. 1967), cert.

denied, 366 U.S. 977, and that “there is no substantial like-

lihood that [such] . . . searches will chill the exercise of

First Amendment rights.” Zweibon v. Mitchell, 516 F.2d

594, 631-32 n.93 (D.C. Cir. 1975) (en banc), cert. denied, 425

U.S. 944.

The decision of the district court below obliterated any

legal distinction between border searches for physical con-

traband and the reading of private papers by customs

11

employees. If allowed to stand, the decision will signal that

all written matter brought into the United States by any

means other than by international mail’ will be subject to

reading and detention by the United States Customs Ser-

vice for any reason at all, or for no reason. The chilling

effect on the exercise of First Amendment rights of speech

and expression would be monumental.

This case thus presents the novel and substantial ques-

tion of what constitutional standards govern the authority

of United States customs inspectors to read papers and

private correspondence sent or brought to this country. In

particular, the Court must decide whether a customs officer

is free to read such papers not only without obtaining a

warrant upon a showing of probable cause to believe that

their importation would violate United States customs laws,

but even without the reasonable cause to suspect such a

potential violation of law mandated by 19 U.S.C. § 482.

The question was explicitly reserved with obvious con-

cern in United States v. Ramsey, 431 U.S. 606, which sus-

tained the warrantless border opening of mailed envelopes

in a search for narcotics... The Court found statutory

authority for the warrantless search in 19 U.S.C. §482,

which authorizes inspection of envelopes when an inspector

“has reasonable cause to suspect there is merchandise

[therein] which was imported contrary to law,” and held

that the customs official in fact had met the statutory stan-

1° A customs regulation prohibits customs officers from reading

international mail without obtaining a warrant upon probable

eause. 19 C.F.R. § 145.3.

11 Indeed, in its petition for a writ of certiorari in Ramsey, the

government took pains to advise the court that “there has been

no showing in this case that customs inspectors read or censor

mail.” Petition at 14.

12

dard."* The Court noted that the reasonable cause to sus-

pect standard of section 482 was “a practical test,” which,

although “less stringent” than that of probable cause,

satisfied the Fourth Amendment requirement of reason-

ableness when applied to border searches. 431 U.S. at 612-

613.

The Court emphasized that it was not dealing with a

case in which customs inspectors had read correspondence

contained in a mailed envelope or package. 431 U.S. at

618 n.8, 623-624.'* It noted that applicable postal regula-

tions “flatly prohibit, under all circumstances, the reading

of [mailed] correspondence, absent a search warrant” (id.

at 623). In the light of such provisions and practice, the

Court concluded that customs inspections of envelopes to

discover contraband, as in Ramsey, do not “impermissibly

chill the exercise of free speech” (id. at 624). The Court

found it “unnecessary to consider the constitutional reach

of the First Amendment in this area in the absence of the

existing statutory an? regulatory protection”, including the

question of whethe., in such absence, “the appropriate

response would be to apply the full panoply of Fourth

Amendment protections.” 7d., n.18."

The questions not reached in Ramsey are presented in

stark and dramatic form in the instant case. Customs offi-

cials were not prohibited by a postal or other regulation

12 The inspector spotted eight bulky envelopes apparently typed

on the same typewriter, all of which had been mailed from

Thailand, “a known source of narcotics.” He felt one of the let-

ters and concluded that “there was something in there.” He

weighed it and determined that it was three to six times the weight

of a normal air mail letter. The inspector then opened the enve-

lope and discovered narcotics.

13No letters or other written material were contained in the ©

envelopes searched in Ramsey.

14 Justice Powell, concurring, also specifically noted and relied

upon the postal regulations and practice prohibiting the reading

of correspondence. 431 U.S. at 625.

13

from reading the correspondence and papers contained in

the packages because the parcels arrived by air cargo

rather than international mail.* And customs officials,

upon discovering the existence of the correspondence and

documents when they opened the packages, immediately

proceeded to read the material without the slightest basis

to believe or even suspect that their importation would

violate United States customs laws.

The district court, ignoring the statutory and regulatory

provisions which underlay the Ramsey decision, ruled that

the customs inspectors properly read the correspondence.

It found that the mere fact that 19 U.S.C. § 1305'* makes

the importation of specified categories of written matter

unlawful justified the initial search of the documents, even

though there was no reason to suspect a section 1305 vio-

lation. Relying on United States v. Wilmot, 563 F.2d 1298

(9th Cir. 1977), which involved a strip search for purposes

of discovering illegal drugs, the district court held that

even papers may be examined initially simply because they

arrive at the border from abroad and that, if, on the basis

of the initial inspection, the customs officer develops a

“real suspicion” that they are unimportable, they may be

subjected to a thorough reading (App. A at 7a). In equat-

ing the constitutional standard applicable to border read-

ing of correspondence with that purportedly governing

18 As Ramsey repeatedly emphasized, the fact that the corre-

spondence in this case arrived by air cargo rather than interna-

tional mail is of no significance to the constitutional issues involved.

for there is “no distinction in constitutional doctrine stemming

mye aa mode of transportation across our borders...” 431 U.S.

a j

16 19 U.S.C. § 1305 (supra, p. 5) prohibits the importation into

the United States of any writing or document which is obscene or

contains “. . . any matter advocating or urging treason or in-

surrection against the United States, or forcible resistance to any

law of the United States, or containing any threat to take the life

or inflict bodily harm upon any person in the United States...”

14

searches for physical contraband," the court below entirely

disregarded a long line of this Court’s decisions holding

that warrantless searches of private communications in-

trude upon First as well as Fourth Amendment interests

and thus must be tested against First as well as Fourth

Amendment standards.

This Court has recognized that governmental intru-

sion into private communications may well conflict “with

the ‘uninhibited, robust and wide-open’ debate and discus-

sion that are contemplated by the First Amendment.”

Lamont v. Postmaster General, 381 U.S. 301, 307, quoting

New York Times Co. v. Sullivan, 376 U.S. 254, 270; United

States v. United States District Court, 407 U.S. 297, 314.

Thus, it has ruled that searches of domestic written ex-

pression for the purpose of determining whether it is un-

lawful and unprotected are not to be judged by the same

constitutional standards as searches for physical contra-

band or evidence because of “the serious hazard of sup-

pression of innocent expression.” Marcus v. Search War-

rant, 367 U.S. 717, 730-731; see Roaden v. Kentucky, 413

U.S. 494, 502, 503 n. 4; Quantity of Copies of Books v.

Kansas, 378 U.S. 209, 211-12; Stanford v. Texas, 379 US.

476, 489 n. 18. Consequently, the Court has insisted that

the Fourth Amendment warrant requirement must be ac-

corded “scrupulous” and “particular exactitude” when

“First Amendment interests would be endangered by the

search”, that is, where the papers to be searched “may be

protected by the First Amendment.” See Zurcher v. Stan-

ford Daily, 436 U.S. 547, 564 and cases there cited. Be-

cause “the values of freedom of expression” call “for a

higher hurdle in the evaluation of reasonableness” under

17 Even with respect to physical contraband, the district court

ignored the clear import of Ramsey and 19 U.S.C. § 482 that a

search for contraband may proceed only if there is “reasonable

cause to suspect” a customs violation. See post, pp. 16-17.

15

the Fourth Amendment, a search directed at private, do-

mestic expression or communications requires a warrant

although none would be required if the search’s object were

physical contraband rather than expression. Roaden v.

Kentucky, 413 U.S. 494, 504, 506.

The question here, then, is whether these First Amend-

ment principles requiring a warrant for domestic searches

of expression are diluted when the expression originates

abroad and the search is conducted at the border, The First

Amendment embraces the American public’s right to re-

ceive information and ideas from abroad, for the plenary

power to exclude aliens and physical contraband or goods

does not extend to protected expression. See Lamont v.

Postmaster General, supra, 381 U.S. at 307; Kleindienst

v. Mamdel, 408 U.S. 753, 762-65. Thus intrusions on the

First Amendment freedoms resulting from a warrant-

less search of private papers may “only be justified by

a substantial governmental interest and a showing that

the means chosen to effectuate the State’s purpose are

not unnecessarily restrictive of personal freedoms.” See

Procunier v. Martinez, 416 U.S. 396, 425.

The government has not met that test here. On the one

hand, the major evil which the Fourth Amendment’s war-

rant requirement was intended to prevent is general and in-

discriminate rammaging among private papers on the basis

of official discretion or whim. See, e.g., Zurcher v. Stanford

Daily, supra, 437 U.8.-at 564; Stanford v. Texas, 379 U.S.

476, 484-85; United States v. Poller, 63 F.2d 911, 914 (2nd

Cir. 1930) (L. Hand, J.). On the other, the government

claims an interest under 19 U.S.C. $1305 in preventing

entry of unprotected and unlawful expression. See United

States v. Thirty-Seven Photographs, 402 U.S. 363, 376.

But it has not shown that its alleged interest is suffi-

ciently compelling to justify the wholesale intrusions

16

upon protected expression inevitably resulting from war-

rantless search of private papers.’® Indeed, the govern-

ment does not deem warrantless reading necessary for

enforcement of Section 1305 against correspondence mailed

from abroad, for a postal regulation prohibits customs

officers from reading letters without a warrant. No reason

exists in theory, practice or policy why the government’s

asserted interest in preventing the importation of literary

“contraband” is any greater when the documents are

shipped by air cargo rather than international mail.

The Court does not have to reach the question of

whether the First and Fourth Amendments require a war-

rant based upon probable cause for border searches of

private correspondence and papers. The Court need de-

cide only that the First and Fourth Amendments, in con-

junction with 19 U.S.C. § 482, prohibit the kind of random

and arbitrary perusal of such documents engaged in by

customs inspectors in this case. Indeed, the Court already

has held in Ramsey that the Fourth Amendment and 19

U.S.C. § 482 limit the authority of customs officers to search

even for nonliterary contraband to situations in which

there is “reasonable cause to suspect” a violation of the

customs law. Surely, as Ramsey made clear, no lesser

standard is appropriate when the search involves the read-

ing of private papers.”®

19 Customs officers may detain private papers for a reasonably

short period to give them a chance to obtain a warrant. United

States v. Van Leeuwen, 397 U.S. 249.

18 Numerous courts of appeals and district courts have applied

the “reasonable cause to suspect” test while upholding warrantless

opening of sealed envelopes. See United States v. King, 517 F.2d

350 (5th Cir. 1975) (package of mail consisting of numerous card-

size envelopes of unusual thickness from a small group of senders

with identical overseas addresses; powdery cushion felt inside

envelopes) ; United States v. Milroy, 538 F.2d 1033 (4th Cir. 1976)

(five envelopes mailed from abroad on same day to same addresses;

envelopes heavier than if they contained mere correspondence and

17

In the instant case there was not a scintilla of evidence

upon which Customs Agent Hoyle could found a “reason-

able cause to suspect” that customs laws would be violated

by the importation of the sealed correspondence in ques-

tion. His own uncontroverted testimony discloses no reason

for his opening of the envelopes and initial reading of their

contents. In fact, immediately prior to opening the enve-

lopes, Agent Hoyle had been able visually to verify that

the packages he ordered opened contained envelopes and

not merchandise, consistent with the package markings.

There were none of the indicia such as suspicious weight,

feel, size, shape, address or markings on the envelopes

which gave rise to the “reasonable cause to suspect” found

in United States v. Ramsey, supra, and the cases cited in

footnote 18. And once the packages were opened, Agent

Hoyle could verify by sight that they contained only writ-

ten papers. He had absolutely no basis for suspecting that

the documents might themselves be contraband.

The three-judge district court erroneously failed to ap-

ply the “reasonable cause to suspect” test. It concluded

that both the opening of the envelopes and the initial read-

ing of the correspondence were reasonable simply because

they occurred during a border search. This is in conflict

with this Court’s decision in Ramsey which applied a test

of reasonable cause to suspect upon an indisputable border

envelopes sniffed by trained dog who identified them as bearing

narcotics) ; United States v. Doe, 472 F.2d 982 (2d Cir. 1972)

(large package from country commonly source of drugs; label

aroused suspicion with experienced customs officer) ; United States

v. Swede, 326 F.Supp. 533 (S.D.N.Y. 1971) (envelope mailed from

Switzerland opened after white powder escaped) ; United States v.

Sohnen, 298 F.Supp. 51 (E.D.N.Y. 195i) (sealed package opened

and illegally imported coins discovered after unusual weight and

feel of package noted and spectroscopic examination revealed that

it contained 12 dise-shaped objects) ; United States v. Head, 416

F.Supp. 840 (S.D.N.Y. 1976) (internationally mailed package of

suspected drug trafficker fluoroscoped before being opened).

18

search. The First and Fourth Amendments and 19 U.S.C.

§ 482 require at least the same showing before sealed en-

velopes may be opened and private papers read by a cus-

toms officer.

Il

This case presents the important question of whether

the detention and general search of correspondence by

customs agents for evidence of any crimes may be deemed

a “border search” exempt from the Fourth Amendment re-

quirement of a search warrant issued upon probable cause.

The border search exception, as with all exceptions to the

warrant requirement, must be “jealously and carefully

drawn”. Jones v. United States, 357 U.S. 493. To sanction

the instant wholesale warrantless reading of the appel-

lants’ correspondence during the course of a planned gen-

eral search for evidence of criminal offenses would be a

radical departure from judicial conceptions of what con-

stitutes a border search.

Customs Agent Peel testified as to the purpose of his

searches of the documents after they had been seized and

removed to Terminal Island. One one occasion, he stated

that the papers were read to determine if there was “ev-

idence of crime” and at another juncture he declared that

he was searching for evidence of violations of 19 U.S.C.

§ 1305 or “other violations of the law” (supra, p. 7). By his

own testimony, Peel was engaged in a general law enforce-

ment search for evidence of crimes and not a border search

“related to the entry of contraband or dutiable merchan-

dise into the United States.” Amador-Gonzalez v. United

States, 391 F.2d 308, 312 (5th Cir. 1968).

Before even formulating the “border search exception”

this Court recognized the distinction between a customs

search and a general law enforcement search:

19

The search and seizure of stolen or forfeited goods,

or goods liable to duties and concealed to avoid the

payment thereof, are totally different things from a

search for and seizure of a man’s private books and

papers for the purpose of obtaining information there-

in contained, or of using them as evidence against him.

Boyd v. Umited States, 116 U.S. 616, 623.

Courts have remained sensitive to the difference between

a border search and its narrow purpose and a general law

enforcement search requiring a warrant:

The Congress has in effect declared that a search

which would be “unreasonable” within the meaning of

the Fourth Amendment, if conducted by public officers

in the ordinary case, would be a reasonable search if

conducted by customs officials in lawful pursuit of un-

lawful imports. Judicial recognition of this distinction

has given rise to the term “border search” in order to

distinguish official searches which are reasonable be-

cause made solely in the enforcement of customs laws

from other official searches made in connection with

general law enforcement.

Alexander v. United States, 362 F.2d 379, 381-382 (9th Cir.

1966) (emphasis supplied).’®

It is clear that Peel searched ‘the “private communica-

tions” in question for general evidence of crimes, and not

violations of the customs laws. The fact that he also was

looking for violations of 19 U.S.C. § 1305 did not convert

his far reaching general search into a border search. Peel

* See United States v. Diamond, 471 F.2d 771, 773 (9th Cir.

1973) ; Klein v. United States, 471 F.2d 847, 849 (9th Cir. 1973) ;

Amador-Gonzalez v. United States, supra; United States v. Swede,

supra at 536; United States v. Head, supra at 843; United States

v. Sohnen, supra at 55.

20

was required by the Fourth Amendment to obtain a search

warrant from a neutral and detached judicial officer, just

as would any other law enforcement officer prior to won-

ducting a search of private papers. Katz v. United States,

389 U.S. 347; Terry v. Ohio, 392 U.S. 1; United States v.

United States District Court, supra.

Courts repeatedly have denounced “pretext” searches

conducted for the purpose of evading the warrant require-

ment, Coolidge v. New Hampshire, 403 U.S. 443; Kelly v.

Umited States, 197 F.2d 162 (5th Cir. 1952); Corngold v.

United States, 367 F.2d 1 (9th Cir. 1966); Amador-Gon-

zalez v. United States, 391 F.2d 308 (5th Cir. 1968); Green

v. United States, 386 F.2d 953 (10th Cir. 1967). If the

three-judge court’s decision is allowed to stand, it cannot

help but encourage the calculated circumvention of the

warrant requirement since it implies that virtually any

search conducted by members of the United States Customs

Service is a “border search”, irrespective of its purpose.

Il

The question of whether 19 U.S.C. § 1305’s proscription

of the importation of writings “containing any matter ad-

vocating or urging treason or insurrection against the

United States, or forcible resistance to any law of the

United States” violates the First Amendment because it

prohibits mere abstract advocacy is also novel and sub-

stantial. No court, other than the one below, has ever

construed the language.*®

*°The Church has standing to raise this question although its

papers ultimately were not seized under Section 1305, but were

returned. The government has conceded that the sole basis for

the reading of the Church’s papers was enforcement of this por-

tion of Section 1305. “With the statutory predicate declared

a )

—

21

As the court below correctly concluded (App. A. at 3a),

Section 1305 does not on its face meet the test enunciated

in Brandenburg v. Ohio, 395 U.S. 444, 447-48, which held

that “the constitutional guarantees of free speech and

free press do not permit a State to forbid or proscribe

advocacy of the use of force or of law violation except

where such advocacy is directed to inciting or producing

imminent lawless action and is likely to incite or produce

such action.” The question, then, is whether, as the court

below held (App. A at 4a), section 1305 may be construed

to incorporate the Brandenburg standard.

The relevant principles of statutory construction are

well-settled. “Although [the] Court will often strain to

construe legislation so as to save it against constitutional

attack, it must not and will not carry this to the point of

perverting the purpose of a statute.” Aptheker v. United

States, 378 U.S. 500, 515. A statute may not be saved by

a narrowing construction if that construction is “inconsis-

tent with the expressed intention of some of its authors.”

United States v. Thirty-Seven Photographs, 402 U.S. 363,

369-70. Thus a law prohibiting advocacy may be narrowly

construed to meet constitutional standards if the enacting

“Congress was aware of the distinction between the advo-

eacy or teaching of abstract doctrine and the advocacy or

teaching of action... and did not intend to disregard it.”

See Yates v. United States, 354 U.S. 298, 319; Dennis v.

United States, 341 U.S. 494, 502.

The district court completely ignored these principles and

the legislative history underlying the enactment of section

1305. The Congress which added the advocacy provision

unconstitutional, there [would be] no legal justification for the

intrusion” into the papers. McSurely v. McClellan, 553 F.2d 1277,

1291-92 (D.C. Cir. 1976) (en bane) ; cf. Powell v. Stone, 507 F.2d

93 (9th Cir. 1974), rev’d on other grounds, 428 U.S. 465.

22

to Section 1305 in 1930 explicitly intended that it embrace

abstract advocacy. The House reported that the statute

was drawn “in conformity with the present provisions of

the postal laws” and was intended to prohibit “books, pam-

phiets and other matters of a seditious or anarchistic na-

ture.” H.R. Rep. No. 7, Tist Cong., 1st Sess. at 160. The

postal law from which section 1305 was derived (then cod-

ified as 18 U.S.C. § 344) was identical in terms to the new

statute, and in fact was a verbatim recodification of Title 12,

section 2 of the Espionage Act of 1917 (40 Stat. 217).** The

latter section had been definitively construed by this Court

and by the United States Court of Appeals for the Second

Circuit to authorize the Postmaster General or his agents

to prohibit the mailing of material merely advocating sedi-

tion, treason or violation of United States law, irrespective

of the likelihood that such advocacy would incite imminent

lawless action. United States ex rel. Milwaukee Social Dem-

ocrat Pub. Co. v. Burleson, 255 U.S. 407; Masses Publishing

Co. v. Patten, 246 F. 24 (2d Cir. 1918).** See Chafee, Free

Speech in the United States, 42-49, 298-305 (1941). Indeed,

the Court in Burleson upheld the Postmaster General in

barring from the mails written material merely criticising

laws and government policy, on the ground that such criti-

cism impliedly advocated civil disobedience. 255 U.S. at

414-415; see Chafee, supra at 303. Under the aegis of the

Act, the Postmaster General engaged in probably the

broadest and most stringent censorship campaign in this

nation’s history. See Chafee, supra at 98-99 for a brief

description of that effort and of the nature of the materials

*1 The statute is now codified as 18 U.S.C. § 1717.

72 Indeed, the Second Circuit in Masses reversed an injunctive

order issued by then-District Judge Learned Hand. Judge Hand

had held that the Postmaster General could prohibit mailing only

of material constituting a “direct incitement to violent resistance.”

244 F. 535, 540 (S.D.N.Y. 1917).

23

barred from the postal system. The use of the statute to

prohibit the mailing of abstract written advocacy continued

at least until after enactment of the advocacy provision of

19 U.S.C. § 1305 in 1930. See Gitlow v. Kiely, 44 F.2d 227

(S.D.N.Y. 1930). This contemporaneous construction and

enforcement of the very statute upon which section 1305

explicitly was modelled manifests the intent of the enacting

Congress*

The Senate debates confirm that the 1930 Congress in-

tended to proscribe the importation of abstract advocacy

documents. The bill’s supporters claimed that enactment

was necessary to bar the entry of “dangerous Huropean

or foreign ideas,” “socialistic and communistic literature,”

opposition to the American form of government, and “sedi-

tious garbage.” 82 Cong. Rec. 5487-5520.

Thus it is clear that the district court did not construe

section 1305 in accordance with the meaning of the enacting

Congress, but rather rewrote the statute contrary to the

Congress’ express intent. But “it is for Congress, not the

Court, to rewrite the statute”. Blount v. Rizzi, 400 U.S. 410,

419. The decision of the district court on the substantial

federal question of statutory construction and constitu-

tional law must be reversed.

23 The general constitutional doctrine of the time was in accord.

Only three years before the enactment of section 1305, the Court

had decided Whitney v. California, 274 U.S. 357, which upheld a

statute making unlawful the abstract advocacy of political and

economic change.

24

IV

Finally, the Court must decide whether Section 1305 is

unconstitutional on its face and as applied in this case for

authorizing the prior restraint of nonobscene written ad-

vocacy without a warrant or an immediate subsequent ju-

dicial determination that the papers are not constitution-

ally protected. While this Court has allowed prior restraint

of obscenity under strict procedural safeguards, e.g., Freed-

man v. Maryland, 380 U.S. 51, it has held that prior re-

straint of other expression is valid only if it threatens to

bring about an extraordinary public danger and only if the

threat is inevitable, direct and imminent. See Near v.

Minnesota ex rel. Olson, 283 U.S. 697; New York Times Co.

v. United States, 403 U.S. 713. But no court has ever held

that written advocacy of lawlessness creates a danger so

great that it may be subjected to a prior restraint. Those

cases which envision the possibility that writings may be

subjected to prior restraint contemplate the publication not

of advocacy of lawlessness, but of true information which

will inevitably result in great public disaster, such as the

revelation in time of war of the sailing dates of transports

or the number and location of troops. See Near vy. Min-

nesota ex rel. Olson, supra, 283 U.S. at 716.

Section 1305 contemplates that such advocacy, standing

alone, will create a danger sufficient to justify the prior

restraint. But that assumption is clearly incorrect as a

matter of law. Indeed, one cannot reasonably imagine a

writing which would meet the constitutional standard for

subsequent punishment of speech, one so forceful and com-

pelling as to be likely to produce imminent lawless action

among its readers. Compare, e.g., Hess v. Indiana, 414 U.S.

105 (per curiam). Moreover, as a prior restraint, section

1305 precludes an accurate determination of the likely effect

25

written advocacy will have on its audience. In the absence

of concrete evidence of the effect of the advocacy, the gov-

ernment is left with mere anticipation, speculation and

conjecture about its inciting effects, and that is a constitu-

tionally impermissible basis for limiting expression. See

Police Department v. Mosley, 408 U.S. 92, 100-01; Healy v.

James, 408 U.S. 169, 188-91; Tinker v. Des Moines Indepen-

dent Community School Dist., 393 U.S. 503, 508.

The constitutional infirmity of section 1305 is heightened

by the fact that the decision whether or not to exercise a

prior restraint on speech is made not by a judge or magis-

trate, but by a customs inspector, When expression is sub-

jected to restraint for reasons other than its alleged obscen-

ity, it must be preceded by a judicial examination of the

material and an adversary determination that it is not

constitutionally protected. See Zurcher v. Stanford Datly,

436 U.S. 547, 564; Roaden v. Kentucky, 413 U.S. 496, 503-

506; Carroll v. Presidents & Commissioners of Princess

Ame, 393 U.S. 175, 183 and n. 10; cf. Spetser v. Randall,

357 U.S. 513. Even temporary restraint of nonobscene

expression without judicial resolution of its constitutional

status is invalid. E.g., Organization for a Better Austin

v. Keefe, 402 U.S. 415.

Section 1305 contains no time limits for a judicial resolu-

tion. In United States v. Thirty-Seven Photographs, 402

U.S. 363, 373-74, however, the Court construed the section

“to require intervals of no more 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.” But

Thirty-Seven Photographs dealt with seizure of allegedly

obscene materials, and the First Amendment requires only

prompt post-seizure judicial review of the status of such

speech. E.g., Freedman v. Maryland, 380 U.S. 51. Seizure

26

of writings on grounds other than obscenity requires an

advance adversary judicial hearing because, “[i]t is vital

to the operation of democratic government that the citizens

have facts and ideas on important issues before them,” and

“la] delay of even a day or two may be of crucial im-

portance in some instances.” Carroll v. Princess Anne,

supra, 393 U.S. at 182. Section 1305 may not be construed

to require an advance judicial hearing and determination

with respect to its advocacy prohibition because it ex-

plicitly contemplates only a post-seizure court proceeding.

See Blount v. Rizzi, 400 U.S. 410, as explained in United

States v. Thirty-Seven Photographs, supra, 402 U.S. at

369-70.

The court below rejected these contentions because the

Church’s papers “were detained for a very short period

[10 days] by the Customs Service” and “this temporary

delay and retention of documents do not constitute a con-

stitutional deprivation” (App. A at 4a-5a). But as Carroll

held, even a day or two delay may be critical in the re-

ceipt of information and ideas. Indeed, in the present case

the detained papers were one-of-a-kind and critical to the

Church’s operations. Moreover, Section 1305 is facially

invalid for failure to provide for an advance judicial de-

termination of the constitutionality of advocacy, and not

merely because the Church’s own papers were detained for

an unreasonable period.”

*4 As we have seen, the Church has standing to make this facial

challenge because the search of its papers was based on Section

1305’s advoeacy prohibition, and if that provision is facially in-

valid, then the search was also illegal.

27

CONCLUSION

For the reasons stated, the Court should note probable

jurisdiction.

Respectfully submitted,

Leonarp B. Boupin

Eric M, LizspeERMAN

Rabinowitz, Boudin, Standard,

Krinsky & Lieberman

30 East 42nd Street

New York, New York 10017

(212) 697-8640

Attorneys for Appellants

Of Counsel:

H. Peter Youne

MicHase. L. HERTZBERG

January 26, 1979

APPENDIX A

Opinion of the District Court

UNITED STATES DISTRICT COURT

CentraL District or CALIFORNIA

CasE No. CV 76-2160-WPG

CuurcH oF SCIENTOLOGY oF CALIFORNIA,

on its own behalf and on behalf of its members, et al.,

Piaintiffs,

Vv.

Wurm Simon,

Secretary of the Treasury, et al.,

Defendants.

MEMORANDUM OF DECISION

Before:

Barnes, Circuit Judge and

Gray and Frreuson, District Judges.

Gray, District Judge:

This three-judge court was convened to consider the

constitutionality of 19 U.S.C. § 1305,’ which prohibits the

admission into the United States of several categories of

documents and articles, including any writing or document

that is obscene or contains:

1A three-judge court was convened because the plaintiffs seek to

restrain certain customs searches and seizures permitted by that

statute. In all actions filed prior to August 12, 1976, that seek to

enjoin enforcement of a statute, adjudication by a three-judge

court is proper. 28 U.S.C. §§ 2281 et seg. The instant suit was

filed on July 7, 1976.

la

2a

Appendix A—Opinion of the District Court

“... any matter advocating or urging treason or in-

surrection against the United States, or forcible re-

sistance to any law of the United States, or containing

any threat to take the life or inflict bodily harm upon

any person in the United States... .”

Under the authority of this statute, the United States

Customs Service searches materials entering this country

from abroad. The plaintiffs filed suit to enjoin the enforce-

ment of this statute and to prohibit the customs officers

from searching documents without obtaining a search

warrant.

The relevant facts in the instant case are fairly straight

forward. Four cartons of papers and documents were

shipped from England, via international air cargo, to

Church of Scientology employees in Los Angeles County,

On July 3, 1976, the Customs Inspector on duty at Los

Angeles International Airport opened the cartons, briefly

scanned the documents, expressed uncertainty regarding

the importability of the materials, and detained the cartons

for further review of their contents.

Subsequently, special customs agents more carefully re-

viewed the documents and, on July 7, 1976, the District

Directors of Customs concluded that the contents were

importable. On that same day, the Church of Scientology

filed suit for damages and injunctive relief and, on July

13, 1976, the cartons of documents were released to the

plaintiffs.

A temporary restraining order issued in this case en-

joined the Customs Service from copying or disseminating

copies of any of the documents contained in the cartons.

The Customs Service was permitted, however, to disclose

the materials to the United States Attorney, who could

3a

Appendix A—Opinion of the District Court

make one copy of documents he found appropriate for

criminal evidentiary purposes or for defense of any dam-

age claims that the plaintiffs might assert.

The plaintiffs raise several arguments in support of

their claims for injunctive relief. First, they contend that

Section 1305 is facially unconstitutional. Second, the plain-

tiffs urge that even if the statute is deemed constitutional,

the method of enforcement in the instant case was im-

proper. The plaintiffs take the position that a warrant

was required initially to read the private, noncommercial

documents shipped from abroad. Finally, the plaintiffs

contend that once the Customs Service deemed the doc-

uments to be importable under Section 1305, its agents

could not continue to read, detain, copy or disseminate

copies of their documents without a warrant. We are un-

persuaded by these arguments within the context of the

facts of this case and we accordingly deny the request for

an injunction.

CoNSTITUTIONALITY OF 19 U.S.C. § 1305

The Church of Scientology asserts that Section 1305 is

overbroad, a prior restraint on speech, and void for vague-

ness. We disagree with these arguments, and hold that the

statute is constitutional when properly construed and

applied.

The plaintiffs insist that the statute is unconstitution-

ally overbroad, for it prohibits the importation of written

materials that discuss violence as an abstract doctrine, as

well as “action now” materials. It is obvious that the

statute does not incorporate specifically the restriciions set

forth in Brandenberg v. Ohio, 395 U.S. 444 (1969), which

held that a state cannot proscribe advocacy of the use of

force “. . . except where such advocacy is directed to incit-

4a

Appendix A—Opinion of the District Court

ing or producing imminent lawless action and is likely to

incite or produce such action.” 395 U.S. at 494. Nonethe-

less, we read such standards into Section 1305 in order to

uphold its constitutionality. In doing so, we follow the

example set by the Supreme Court in United States v.

Thirty-Seven Photographs, 402 U.S. 363 (1971) and in

United States v. 12 200-Ft. Reels, 413 U.S. 123 (1972).

In Thirty-Seven Photographs, the Supreme Court applied

constitutional standards to uphold the statute’s validity.

“he plaintiffs in that case had argued that Section 1305

was unconstitutional in that it failed to specify procedural

time limits for judicial determination of obscenity as re-

quired by the First Amendment, Rather than invalidate

the statute based on this lack of an express standard, the

Court adhered to the “. . . cardinal principle that this

Court will first ascertain whether a construction of the

Statute is fairly possible by which the question may be

avoided.” 402 U.S. at 369. Similarly, in 12 200-Ft. Reels,

supra, the Court foreclosed an overbreadth attack, although

the statute prohibited the importation of obscene materials

both for private use and possession, as well as for com-

mercial use,

In accordance with these decisions upholding the con-

stitutionality of 19 U.S.C. § 1305, we interpret the “advo-

cacy” section of that statute in a manner consistent with

the Constitution. Thus, we will “read in” the standards

set forth in Brandenberg v. Ohio, supra, and construe the

statute to avoid the overbreadth attack.

We also reject the plaintiffs’ argument that the statute

permits an unconstitutional prior restraint of speech

through the detention of imported materials. In this case,

the Church of Scientology’s papers, which consisted of

many thousands of pages, were detained for a very short

5a

Appendix A—Opinion of the District Court

period by the Customs Service, before the Service deter-

mined the papers to be importable. Under the Customs

Service’s broad powers to restrict imports and conduct a

search of materials entering the country from abroad, this

temporary delay and retention of documents do not con-

stitute a constitutional deprivation.

Finally, the plaintiffs’ argument that the statute is void

for vagueness must also fail. This contention relates to

the scope of discretion afforded the Secretary of the

Treasury to admit books of recognized literary or scientific

merit. The question of an improper exercise of this dis-

cretionary power is not presented by the facts of this case,

and so we need not resolve it within this decision. Thus, we

hold that the statute is constitutional as applied to advo-

cacy issues, just as it previously has been held constitu-

tional as applied to obscenity issues,

E\NForceMENT oF 19 U.S.C. § 1305

We also hold that the search pursuant to the statute

was conducted in a constitutionally valid manner. The

plaintiffs argue unsuccessfully that warrantless reading

of materials entering the United States from abroad is

suspect, We disagree with their contentions that a war-

rant was needed for the original inspection and that a

warrant was required once the documents were deemed

importable pursuant to § 1305.”

It is indisputable that the instant case involves a border

search. The Customs Service has the statutory authority

* Complaints regarding allegedly unlawful operation or ad-

ministration of a statute normally are not the proper subject of

adjudication by a three-judge court under the standards set forth

in 28 U.S.C. §§ 2281 et seq. However, in the interests of judicial

economy, we may exercise our discretion to resolve pendent stat-

utory claims, and we do so here. See, Rosado v. Wyman, 397 U.S.

397 (1970).

6a

Appendia A—Opinion of the District Court

to examine materials coming into the United States, and

the Supreme Court has enunciated clearly the position that

the government possesses an inherent right to protect it-

self by stopping and examining persons and property

entering the country from abroad. United States v. Ram-

sey, 431 U.S. 606 (1977).

In addition, the Constitution has given Congress broad,

comprehensive powers to regulate commerce with foreign

nations, and under this power “[i]mport restrictions and

searches of persons or packages at the national borders”

are justified by different “considerations and different rules

of constitutional law from domestic regulations.” United

States v. 12 200-Ft. Reels, 413 U.S. 123, 125 (1972).

Under its general powers in setting import restrictions,

Congress may promulgate regulations regarding the im-

portability of obscene material and material advocating

the overthrow of the government. To enforce these regula-

tions, the Customs Service has the right to search luggage

and persons at our national borders. This search neces-

sarily involves the examination or review of the materials

in question, for the customs officers must scan or peruse and

perhaps even read the materials to determine whether or

not they are importable.

The Supreme Court recently reconsidered the standards

and requirements for border searches in United States v.

Ramsey, 431 U.S. 606 (1977). The Court reaffirmed the

policy that border searches without probable cause and

without a warrant are reasonable. In that case, the customs

officials opened letter size envelopes arriving airmail from

Thailand which they reasonably suspected contained il-

legally imported narcotics. The Court concluded that mail

entering the country from overseas was not entitled to any

7a

Appendix A—Opinion of the District Court

greater privacy than material coming from abroad by any

other mode of entry.

In line with the reasoning set forth in Ramsey, the search

involved here must be measured against the normal border

search standards. The Court did leave open the question,

however, of when a border search might be unreasonable

and “particularly offensive.” 431 U.S. at 618. However, it

would be inappropriate and unnecessary for this court to

determine what is reasonable under all circumstances, or

what type of search would be unreasonable. It is sufficient

that in this case the search was reasonable arid complied

with the more stringent border search test promulgated by

the Ninth Circuit, in United States v. Wilmot, 563 F.2d 1298

(9th Cir. 1977). In that decision, the opinion cites Ramsey

for the well-established principle that border searches “are

reasonable simply by virtue of the fact that they occur at

the border.” It then stated that in order to justify an

intrusive search, additional cause is necessary, and held

that for a strip search “there must be ‘real suspicion’ di-

rected specifically to the person searched.” 563 F.2d at

1300.

The instant case withstands analysis under the Ninth

Circuit’s “real suspicion” test. The initial search, simply

as a border search, was reasonable. It appears that the

customs officer developed a “real suspicion” as to the im-

portability of the contents of the cartons as a result of this

initial search. We conclude that the customs officer’s real

suspicion concerning the importability of the documents

fulfilled the additional cause requirement, and provided the

basis for the more intrusive search that subsequently took

piace. Thus, the actions of the customs officers were

proper and the enforcement of the border search was valid.

Finally, we reject the plaintiffs’ argument that the gov-

8a

Appendix A—Opinion of the District Court

ernment had to obtain a search warrant to continue search-

ing, detaining and copying the documents. The plain view

doctrine provides that an officer may seize evidence without

a warrant if that officer has a proper justification for being

coincidentally in a position to come upon the incriminating

evidence. Harris v. United States, 390 U.S. 234 (1968).

The plaintiffs have neither argued nor presented any

credible evidence in this case that the original inspection

of the documents was conducted in bad faith or that the

initial Section 1305 search was used as a guise for obtaining

incriminating evidence for use against the Church of Scien-

tology in other proceedings. Accordingly, we must conclude

that the initial search was conducted in good faith and a

proper inspection occurred.

The customs officers had a right to inspect the alenuenie

and could seize any evidence of another crime, under the

plain view doctrine, without first obtaining a search war-

rant. This conclusion regarding the permissible absence of

a search warrant is buttressed by the Supreme Court’s

comment in Ramsey, supra. In Ramsey, the customs offi-

cials opened the airmail envelopes, discovered the heroin,

resealed the envelopes and sent them to the Drug Enforce-

ment Administration for further action. The Drug En-

forcement Administration obtained search warrants after

it received the envelopes. The Supreme Court treated the

search warrants as an unnecessary and insignificant step,

for the original opening and inspection of the envelopes had

been legal. We hold, similarly, that a search warrant would

be unnecessary, for the customs officers already were ex-

amining the documents in good faith and therefore the plain

view doctrine is controlling.

For the foregoing reasons, the plaintiffs’ application for

a preliminary injunction will be denied and the action dis-

9a

Appendix A—Opinicn of the District Court

missed. This opinion shall constitute findings of fact and

conclusions of law, as authorized by Rule 52(a) of the Fed-

eral Rules of Civil Procedure.

Dated: October 13, 1978.

/s/ Wruutam P. Gray

Wii P, Gray

United States District Judge

We concur.

/s/ Sranuey N. Barnes

Stran.ey N. Barnes

United States Circuit Judge

/s/ Warren J. Ferauson

Warren J. Fercuson

United States District Judge

10a

APPENDIX B

Judgment of the District Court

UNITED STATES DISTRICT COURT

CentraL District or CALIFORNIA

CasE No. CV 76-2160-WPG

CuurcH oF ScIENTOLOGY OF CALIFORNIA,

on its own behalf and on behalf of its members, et al.,

Plaintiffs,

v.

Wituiiam Simon,

Secretary of the Treasury, et al.,

Defendants.

For the reasons set forth in the Memorandum of Decision

filed contemporaneously herewith,

Ir Is Orperep that the plaintiffs’ petition for a prelim-

inary injunction is denied and the action dismissed.

Datep: October 13, 1978

/s/ Stanuey N. Barnes

Stanutey N. Baryes,

Circuit Judge

/s/ Wriu1am P. Gray

Wii P. Gray,

District Judge

/s/ Warren J. Fercuson

Warren J. Fercuson,

District Judge

lla

APPENDIX C

Notice of Appeal

UNITED STATES DISTRICT COURT

CentraL District or CALIFORNIA

Case No. CV 76-2160-WPG

CuurRCH oF SCIENTOLOGY OF CALIFORNIA,

on its own behalf and on behalf of its members,

Davin W. James, KennetH WHITMAN,

Plaintiffs,

v.

Wuu1aMm Simon,

Secretary of the Treasury, et al.,

Defendants.

Notice Is Heresy Given that the Church of Scientology

of California, David W. James and Kenneth Whitman,

the Plaintiffs above-named, hereby appeal to the Supreme

Court of the United States from the final order, entered

in this case on October 13, 1978, denying their petition for

a preliminary injunction and dismissing the action.

This Appeal is taken pursuant to 28 U.S.C. §1253.

Respectfully submitted,

Leonarp B. Boupin

H. Peter Youne

By: /s/

H. Peter Young

Attorneys for the Plaintiffs

Lex PRINTING Co., INc., 451 Greenwicn Sr., N.Y. 10013—966-4300