Brief for the United States — United States v. Thirty-Seven (37) Photographs

ee

I. The power of the United States to pro-

hibit the importation of obscene matter

was not impaired by this Court’s

decision in Stanley v. Georgia... ------

II. Appellee, who admitted that he was

importing the material here for subse-

quent commercial distribution, lacks

standing to challenge the customs ob-

scenity statute on the ground that it

also prohibits the importation of

obscene matter for strictly private use-

III. The customs statute prohibiting the

Bs importation of obscene matter provides

. | adequate administrative and judicial

¥

< -

By.

Be

safeguards for the determination of

E whether the material is obscene_ _____-

as ccnp intibdanenthanbateckinccesbece

Bt! re)

410-752—70——-1

omhwnd

17

ewe

eet

od

Cases:

CITATIONS

Alexander v. United States, 362 F. 2d 379, py,

certiorari denied, 385 U.S. 977_........--- 15

Board of Trustees v. United States, 289 U.S. 48- 10

Boyd v. United States, 116 U.S. 616_---.-.-- 15

Breard v. Alexandria, 341 U.S. 622._.._____- 20

Brolan v. United States, 236 U.S. 216_.....-- 10

Carroll v. United States, 267 U.S. 182__.____- 15

Chaplinsky v. New Hampshire, 315 U.S. 568- 16

Colonnade Catering Corp. v. United States,

Dombrowski v. Pfister, 380 U.S. 479.____- 18, 19, 20

Freedman v. Maryland, 380 U.S. 51_- 6, 9, 19, 22, 23

Ginzburg v. United States, 383 U.S. 463_---_-

Griswold v. Connecticut, 381 U.S. 479___-__--

Interstate Circuit v. Dallas, 390 U.S. 676__ 19, 22, 23

Mapp v. Ohio, 367 U.S. 643_...-..--...---- 14

Martin v. Struthers, 319 U.S, 141__-.----_-- 21

Memoirs v. Massachusetts, 383 U.S. 413_-_-_- 26

Minor v. United States, 396 U.S. 87__-...__-- 10

Mishkin v. New York, 383 U.S. 502__._..__- 20, 26

N.A.A.C.P. v. Button, 371 U.S. 415_....-__- 18

Noto v. United States 367 U.S. 290__....-_-_- 21

New York State Broadcasters v. United States,

414 F. 2d 990, certiorari denied, 396 U.S.

ES OS eae ei a een ee a Te 21

Olmstead v. United States, 277 U.S. 438_----- 14

Poe v. Ullman, 367 U.S. 497_...----------- 14

Redmond v. United States, 384 U.S. 264_.__-_- 17

Redrup v. New York, 386 U.S. 767_-_.-.---- 20

Roth v. United States, 354 U.S. 476__....---- fF

10, 12, 16, 18, 19, 20, 21

Scales v. United States, 367 U.S. 203__...... 21

Cases—Continued :

Page

Stanley v. Georgia, 394 U.S. 557___--------- 5,

6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18

Teitel Film Corp. v. Cusack, 390 U.S. 139__-- 23

Thornhill v. Alabama, 310 U.S. 88_.-.------ 18, 19

United States v. A Motion Picture Film Entitled

“Pattern of Evil’’, 304 F. Supp. 197------- 21

United States v. Articles of ‘“Obscene’’ Merchan-

dise, 315 F. Supp. 191_..---...__._- 17-18, 21

United States v. 56 Cartons Containing 19,600

Copies of a Magazine Entitled “Hellenic

Sun’, 373 F. 2d 635, reversed sub nom.

Potomac News Co. v. United States, 389 U.S.

Uinta dcndeekhkaneenameeamead 25

United States v. 77 Cartons of Magazines,

Gee NOs nis cdl bdedsabees ee 25

United States v. 392 Copies of a Magazine

Entitled “Exclusive” 253 F. Supp. 485,

affirmed, 373 F. 2d 633, reversed sub nom.

Central Magazine Sales, Ltd. v. United

States, 389 U.S. 50.._____------____-- 24, 25, 26

United States v. One Book Entitled “The

Adventures of Father Silas,’”’ 249 F. Supp.

| rome Sarr ER Se Cee 25, 26, 27

United States v. One Carton Positive Motion

Picture Film Entitled “491”, 367 F. 2d

eer iy ane 21, 25, 26, 27, 28

United States v. Raines, 362 U.S. 17_..-___-- 18

United States v. Ten Reels of a Motion Picture

Entitled “Quiet Days in Clichy’, Drove

Press, claimant, 399 U.S. 920_.....____- -. 27-28

Valentine v. Chrestensen, 316 U.S. 52____- 12, 20-21

Weber v. Freed, 239 U.S. 325........._.-__- 10

te STORE MERA ey

IV

Constitution and statutes:

U.S. Constitution: Sak

Astidia 5 -Gontion 6... ..caccndncncsasnbonee 9

First Amendment. -- -- ---- 7, 8, 10, 11, 12, 13, 18, 20

Fourth Amendment... ...........----.----- 14

SIGE. Bens ncnkinoncosesaneansannennenes 10

$6 WIC Bibl wnccacucccancescbbeuseanean 17

96. UBC. GRR. 2d .nennscacastneeeee 15

19 U.S.C. 1305. ------- 2-4, 5, 6, 9, 19, 21, 24, 25, 28

19 UBC. 1008... ...ccccnnsannnsbseueneeeee 15

10 USC. 108. . oo cncccenpsenssnenanee 24

10 UEC. 200K. .. 2. 0. ncccaskeneuneeeeee 24

10. UEC. TORR... ..noncnqcacnnctsucseneeame 18, 21

US. SNS. .....nnakcnddunscneeeeeeee 5

Miscellaneous:

Bureau of Customs Circular (RES-15-RM, July

18, 1906)... ...----------nannnnancnnnesenne= 26

72 Cong. Rec

OA14 . ...wndnanocaneenesneeeee 24

Th 24

BE. . nc nncncnnconncennuneeeeeee 24

5491-GlO4.. . . ..- on cnececscnensunnenen 25

ee 25

SADE. on nnn don nncnscoenenneeeeeeeee 25

S817-O088 . . . .- ccc csncamcsueuanenr 24

OURO. cnc cenunennshhenneeeeeee 25

Gegan, The Twilight of Nonspeech, 15 Catholic

Lawyer 210 (1969) ---------------------- 13

Note: The First Amendment Overbreadth Doc-

trine, 83 Harv. L. Rev. 844- ------------- 20, 21

Sedler, Standing to Assert Jus Tertii in the

Supreme Court, 71 Yale L. J. 599 (1962) - -- 21

= ee oe eee He

Yn the Supreme Gourt of the Wnited States

OctoBeR TERM, 1970

No. 133

UniTep STaTEs OF AMERICA, APPELLANT

v.

TurTy-SEVEN (37) PHoTocraPHs, Mi_tTon LuRos,

; CLAIMANT

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE CENTRAL DISTRICT OF CALIFORNIA

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the three-judge District Court for

the Central District of California (App. 24-27) is

reported at 309 F. Supp. 36.

JURISDICTION

On January 27, 1970, a three-judge District Court

in the Central District of California, convened pur-

suant to 28 U.S.C. 2282, entered a judgment perma-

nently restraining the United States and its agents

from enforcing against appellee the provisions of 19

U.S.C. 1305(a) (the customs obscenity statute) and

declaring that the statute, on its face and as applied

(1)

a

in this case, violated the claimant’s rights under the

First and Fifth Amendments to the Constitution

(App. 28). A notice of appeal to this Court was filed

in the district court on February 26, 1970 (App. 29).

Probable jurisdiction was noted on October 12, 1970

(App. 30). The jurisdiction of this Court rests on 28

U.S.C. 1253. See, ¢.g., Zemel v. Rusk, 381 U.S. 1, 5-7;

Flast v. Cohen, 392 U.S. 83, 90-91.

QUESTIONS PRESENTED

1. Whether the United States may validly prohibit

the importation of obscene matter for subsequent

commercial distribution.

2. Whether a person importing obscene matter for

commercial distribution has standing to challenge a

statute also prohibiting the importation of such mat-

ter for private use and, if so, whether the statute is

valid.

3. Whether the statute prohibiting the importation

of obscene matter into the United States, 19 U.S.C.

1305(a), provides adequate administrative and judi-

cial safeguards.

STATUTE INVOLVED

19 U.S.C. 1305(a) provides in pertinent part:

All persons are prohibited from importing

into the United States from any foreign coun-

try * * * 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

east, instrument, or other article which is ob-

scene or immoral * * *. No such articles wheth-

3

er imported separately or contained in packages

with other goods entitled to entry, shall be ad-

mitted to entry; and all such articles and, un-

less it appears to the satisfaction of the collector

that the obscene or other prohibited articles con-

tained in the package were inclosed therein

without the knowledge or consent of the im-

porter, owner, agent, or consignee, the entire

contents of the package in which such articles

are contained, shall be subject to seizure and

forfeiture as hereinafter provided: * * * Pro-

vided, further, That the Secretary of the Treas-

ury may, in his discregtion, admit the so-called

classics or books of recognized and established

literary or scientific merit, but may, in his dis-

cretion, admit such classics or books only when

imported for noncommercial purposes.

Upon the appearance of any such book or

matter at any customs office, the same shall be

seized and held by the collector to await the

judgment of the district court as hereinafter

provided; and no protest shall be taken to the

United States Customs Court from the decision

of the collector. Upon the seizure of such book

or matter the collector shall transmit informa-

tion thereof to the district attorney of the dis-

trict in which is situated the office at which such

seizure has taken place, who shall institute pro-

ceedings in the district court for the forfeiture,

confiscation, and destruction of the book or mat-

ter seized. Upon the adjudication that such book

or matter thus seized is of the character the

entry of which is by this section prohibited, it

shall be ordered destroyed and shall be de-

stroyed. Upon adjudication that such book or

4

matter thus seized is not of the character the

entry of which is by this section prohibited, it

shall not be excluded from entry under the

provisions of this section.

In any such proceeding any party in interest

may upon demand have the facts at issue deter-

mined by a jury and any party may have an

appeal or the right of review as in the case of

ordinary actions or suits.

STATEMENT

The pertinent facts were stipulated in the district

court (App. 15-16). They show that claimant Luros

returned to this country from Europe by airplane on

October 24, 1969, arriving at Los Angeles. During the

customs inspection, customs agents seized from his

luggage the thirty-seven photographs involved herein,’

a book entitled Forbidden Erotica, a book album of the

works of one Peter Fende, and a “girlie”? magazine,

It was stipulated that (App. 16):

Some or all of the 37 photographs seized

were intended to be incorporated in a hard

cover edition of the Kama Sutra of Vatsyayana,

which book describes candidly a large number

of sexual positions. The book has been distrib-

uted widely throughout the Nation and has

been acclaimed as a work of substantial value.

At the time of the seizure of the 37 photo

graphs, the claimant, Milton Luros, advised the

Customs Inspector that at least some of the

photographs were intended for inclusion in the

book The Kama Sutra. * * *

1 These photographs have been lodged with the Clerk of this

Court.

5

On October 31, 1969, the District Director of the

Bureau of Customs wrote Luros, advising him that

the matter had been referred to the United States

Attorney for forfeiture action. On November 4, 1969,

Luros’ attorney wrote the District Director demand-

ing the return of the seized material. The following

day, the United States Attorney’s Office returned all

the material seized except for the thirty-seven photo-

graphs. On November 6, 1969, the United States com-

menced the present action under 19 U.S.C. 1305(a)

for forfeiture of the photographs as obscene (App. 2).

Luros filed an answer and counterclaim on Novem-

ber 14, 1969, contending that the photographs were

not obscene and that 19 U.S.C. 1305(a) was uncon-

stitutional (tbid.). He moved to convene a three-judge

district court under 28 U.S.C. 2282 to resolve these

issues (App. 9). The motion was heard on Novem-

ber 18, 1969, and an order to convene a three-judge

court was issued on November 20, 1969 (App. 12-13).

The hearing before the three-judge court was held on

January 9, 1970 (App. 14-15).

The court issued its opinion on January 27, 1970.

Tacitly assuming that the pictures seized here are

obscene, the court nonetheless ruled that the statute is

unconstitutional on its face and as applied (App. 24-

27). The court noted that the statute reaches ‘‘all ob-

scene works”’ and ‘‘prohibits an adult from importing

an obscene book or picture for private reading or

viewing” (App. 25). It therefore concluded that the

statute is invalid on its face under this Court’s de-

cision in Stanley v. Georgia, 394 U.S. 557 (ibid).

410-752—70——-2

6

Despite the fact that the claimant stipulated that he

had imported the pictures for commercial, not private,

use, the court held that he had standing to attack the

statute on the basis of its application to importation

for private use (App. 25). Relying upon Freedman y.

Maryland, 380 U.S. 51, the court also ruled that the

statute violated the due process clause because it fails

to guarantee that any restraint on allegedly obscene

material will be imposed for only “a specified brief

period” prior to the judicial resolution of the issue of

obscenity (App. 26).

SUMMARY OF ARGUMENT

This case involves the constitutional validity of the

federal government’s prohibition on importation of

obscene material and the procedural arrangements for

administrative and judicial decision of the issue

whether an item which has been seized at customs is

obscene.

The court below interpreted this Court’s decision in

Stanley v. Georgia, 394 U.S. 557, as establishing a right

to obtain obscene matter for personal use. Appellee’s

importation admittedly was for commercial use. But be-

cause the statute at issue, 19 U.S.C. 1305(a), prohibits

importation of obscene matter, irrespective of its in-

tended use, the court held that it was invalid on its

face. The court alternatively ruled, in reliance upon

Freedman v. Maryland, 380 U.S. 51, that the seizure-

forfeiture procedure under the statute violated due

process because it lacked legislatively prescribed maxi-

mum time periods during which the government was

ee eter es

7

required to take administrative steps and ultimately

seek judicial resolution of the issue of obscenity.

I

Our primary contention is that the established power

of the government to control importation of goods

into the United States, under which obscene matter has

long been excluded, was in no way impaired by this

Court’s decision in Stanley v. Georgia, supra. That de-

cision held that the State could not punish an individual

for possession of obscene matter in the privacy of his

dwelling. It rested upon the right of the individual to

be free from government intrusion into his home and

private thoughts. This protection of the individual does

not, however, extend to the material itself. The Stan-

ley opinion expressly disclaimed overruling or limita-

tion of Roth v. United States, 354 U.S. 476, which had

upheld government prohibition of the public distribu-

tion of obscene matter because such matter was not pro-

tected by the First Amendment. Since the obscene ma-

terial is not protected, the right not to be punished

for possessing it in one’s home does not earry with it

a right to obtain or to distribute it commercially.

The protection of the individual upon which Stanley

was based, moreover, does not apply to prevent seizure

of obscene matter at customs, even if the individual

claims it is intended for personal use. The respective

interests of the government and the individual are

different at customs than when the government seeks

to intrude into the privacy of the home. One’s be-

longings traditionally are subject to close examination

8

at customs in order that the government effectively

can control importation of goods into the country.

Forfeiture proceedings are in rem against the obscene

matter; no fine or criminal penalty is imposed on the

individual. And the degree of assurance that material

seized at customs is intended only for private use is

less than it is with respect to matter which is dis-

covered only by invasion of an individual’s home.

II

Even if Stanley requires the government to refrain

from interfering with the importation of obscene ma-

terial for private use, it does not forbid prohibiting

importation for commercial purposes. The court below

apparently assumed as much. This being so, however,

that court should have upheld the statute as applied

to appellee, who admittedly was an importer for com-

mercial purposes. Congress intended such an approach

in the event the statute was held unconstitutional as

applied to some cases, for it included a separability

provision in the statutory scheme.

Appellee did not, in fact, have standing to assert

the unconstitutionality of the statute as applied to

private importers. Although this Court has allowed

parties standing to challenge certain statutes affecting

First Amendment rights on their face when their own

activity could, in any event, be constitutionally pro-

hibited, it has done so only when the statutes are

vague, as well as overly broad. But the statute here

is certainly not vague. The categories of personal and

commercial use may be readily distinguished so that

there will be no uncertainty as to the reach of the statute

9

if it is held valid only when applied to commercial

importation.

Iit

The procedural safeguards which are necessary

under Freedman v. Maryland, supra, exist under Sec-

tion 1305(a) notwithstanding the fact that rigid time

limits have not been set upon the forfeiture proceed-

ings. The statute insures the government will obtain

a prompt judicial determination as to whether ma-

terial it seizes and wishes to destroy is obscene. The

statute requires the collector of customs to report

seizures to the district attorney who, in turn, must

institute forfeiture proceedings forthwith. Judicial

interpretation, as well as the legislative history of the

statute, has made it plain that all the steps in the forfeit-

ure process must be taken as rapidly as is possible con-

sistent with responsible adjudication on the issue of ob-

scenity. Decisions upholding the procedure of the statute

on its face provide sufficient indication of acceptable

time periods. The time between seizure and court de-

cision in this case—three months, a part of which was

due to the convening of a three-judge court—is

wholly consonant with the approach of those decisions

and the due process requirements of Freedman.

ARGUMENT

I. THE POWER OF THE UNITED STATES TO PROHIBIT THE IM-

PORTATION OF OBSCENE MATTER WAS NOT IMPAIRED BY THIS

COURT’S DECISION IN STANLEY v. GEORGIA

Article I, Section 8 of the Constitution grants Con-

gress the power to “regulate commerce with foreign

Nations.’’ The only limitations on this power are those

J

a eee

10

contained in other provisions of the Constitution,

Among other things, it includes the power to “ex-

clude merchandise at discretion.” Board of Trustees

v. United States, 289 U.S. 48, 56-57; Brolan v. United

States, 236 U.S. 216, 218-219; Weber v. Freed, 239

U.S. 325, 329; see also Minor v. United States, 396

U.S. 87, 98, n. 13. Under this power, Congress has

prohibited importation of various types of obscene

material into this country since 1842. See 5 Stat.

566." This Court has long recognized that such

material is, in effect, “merchandise”—unprotected by

the First Amendment and fully subject to the govern-

ment’s power to exclude. E.g., Roth v. United States,

354 U.S. 476, 481; Ginzburg v. United States, 383

U.S. 463, 474-475.

A. The court below is one of a number which re-

cently have interpreted this Court’s decision in Stan-

ley v. Georgia, 394 U.S. 557, as impairing those prin-

ciples—despite the Stanley opinion’s express state-

ment that the Roth holding was “not impaired.’’ 394

U.S. at 568. See, e.g., Byrne v. Karalezxis, No. 83, this

Term; United States v. Reidel, No. 534, this Term;

United States v. Various Articles of “Obscene’’ Mer-

chandise, No. 706, this Term. In the government's

brief amicus curiae in Byrne, supra, we undertake

to show how that failure to honor the explicit reser-

vation in Stanley—made not just once, but in several

passages in the opinion, 394 U.S. at 563, 567, 568—

arises out of a failure to recognize the opinion’s focus

2A brief history of federal obscenity legislation is detailed

in the government’s brief in the Roth case (No. 582, O.T., 1956),

pp. 79-81.

11

on the privacy of the individual whose possession of

obscene matter was there made a crime.

Here, we stress another facet of that decision, expand-

ing upon our analysis in Byrne. In referring to First

Amendment rights, the Stanley opinion is careful to

refer to those rights as associated with Mr. Stanley, the

individual accused of crime, and not as the product of

any First Amendment status inhering in the materials

themselves. It was Mr. Stanley who was to be protected,

not the materials he possessed ; and the right enunciated

was to be free of state inquiry into the contents of his

library—an inquiry which, under the circumstances of

that case, could have no other purpose than supervi-

sion of the morality of his own, individual thoughts. If

the materials are not protected, there is no “right to

receive’ them as such; and protection of the individ-

ual’s right from inquiry into his private thoughts in

no way implies that the community must tolerate pub-

lic distribution and availability of materials which, in

themselves, the First Amendment does not protect. The

fact which distinguishes Stanley from all the pending

eases is that there the community did not know, and

had no right to know, independent of an asserted inter-

est in Mr. Stanley’s personal morals and thoughts, what

it was that he possessed.

In Stanley, state agents entered appellant’s home

under a search warrant which authorized them to seize

evidence of bookmaking. In the course of the search,

entirely by accident and without suspecting what they

would find, they discovered a roll of motion picture

film and a projector. They viewed the film, concluded

12

it was obscene, and arrested appellant. He was con-

victed under state law for “knowingly hav[ing] pos-

session of * * * obscene matter.”” See 394 U.S. at

558-559. Proceeding on the assumption that the film

was obscene under ‘‘any of the tests advanced by mem-

bers of this Court’’ (394 U.S. at 559, n. 2), this Court

nonetheless reversed the conviction.

The express and limited holding of the majority

was that “the First and Fourteenth Amendments pro-

hibit making mere private possession of obscene ma-

terial a crime’’ (id. at 568). The court below, how-

ever, apparently viewed the statement in Stanley that

the “Constitution protects the right to receive infor-

mation and ideas * * * regardless of their social worth,”

394 US. at 564, as the operative rationale of the decision.

It concluded from this that the statute could not

constitutionally deprive “ta person who may constitu-

tionally view pictures of the right to receive them”

(App. 25).

This interpretation misconceives the basis of the

Stanley decision. The ‘‘right to receive’’ of which this

Court spoke could not have been intended to en-

compass a right to receive obscenity, a class of ma-

terial which Stanley itself recognized as outside the

scope of First Amendment protection. See Roth v.

United States, supra; cf. Valentine v. Chrestensen,

316 U.S. 52. Recognition of such a right would

emasculate Roth’s holding that the government does

have power to regulate the public distribution of ob-

scene matter (354 U.S. at 491-492), something that

the Court was careful to disclaim. The decision in

Stanley rested essentially on the right of the indi-

13

vidual to be free from interference by government

with the privacy of his home and the “moral content

of * * * [his] thoughts.” 394 U.S. at 565. Thus, the

Court asserted that “[ijf the First Amendment means

anything, it means that a State has no business telling

a man, sitting alone in his own house, what books he

may read or what films he may watch.” Ibid.

The lack of authority to punish an individual for

possession of obscene materials in his home does not

eorrelatively invest the material itself with First

Amendment protection it otherwise does not enjoy.

And the protection of privacy does not require recog-

nition of a right to obtain or dispense obscene ma-

terial. The claim of a “right to receive” obscene mat-

ter, as one commentator has stated:

misconceives the reasons for which, according

to Stanley, society stays its hand in the case of

private indulgence. It does not acknowledge a

“right” to undergo pornographic experiences in

private any more than the statute of frauds

grants a “right’’ to breach oral contracts. The

law tolerates both because of uniquely remedial

considerations. The cure would be worse than

the disease. The recognition of this does not

mean that society either values the disease or

considers it with indifference. Should the re-

pellant activity surface in circumstances not

relevant to privacy the law will step in. The

privilege recognized in Stanley is, in short, a

shield for the private citizen, not a sword for the

purveyor. [Gegan, The Twilight of Nonspeech,

15 Catholic Lawyer 210, 218-219 (1969).]

410-752—70——3

14

The power of government to prohibit distribution and

possession of unprotected obscene matter is thus im-

paired by Stanley only to the extent that it is en-

forced by an improper invasion of the right of the

individual ‘‘to be let alone—the most comprehensive

of rights and the right most valued by civilized men”

Olmstead v. United States, 277 U.S. 438, 478 (Bran-

deis, J., dissenting) ; see 394 U.S. at 564. Stanley is an

application of the principle that

The secular state is not an examiner of con-

sciences: it must operate in the realm of be-

havior, of overt actions, and where it does so

operate, not only the underlying, moral purpose

of its operations, but also the choice of means

becomes relevant to any Constitutional judg-

ment on what is done. * * * [Poe v. Ullman, 367

U.S. 497, 547 (Harlan, J., dissenting).]

That principle was endorsed by the Court in Griswold v.

Connecticut, 381 U.S. 479."

B. Viewing Stanley thus, it might nonetheless be

contended that customs inspection is one of the

places where the ‘‘right to be let alone” as to written

materials must be honored, at least so far as those

materials are said to be meant for private use once

imported. Of course, the materials here are avowedly

for public, commercial use, and we shall show why an

*« It is interesting to note that the issue decided in Stanley was

the principal one raised, on virtually identical facts, in Mapp v.

Ohio, 367 U.S. 643, 673 (Harlan, J., dissenting). The Court did

not reach that issue in AM/app, reversing the conviction solely on

Fourth Amendment grounds. The same term, the Court also re-

frained from deciding the comparable issue concerning punish-

ment for use by married couples in the privacy of their own homes

of contraceptive devices. Poe v. Ullman, supra. The issue was, ot

course, subsequently decided in Griswold v. Connecticut, supra,

which we believe is a critical foundation of the Stanley decision.

15

importer for such purposes may not avail himself of

any private right to import. But we further contend,

for several reasons, that the Stanley rationale does

not extend to importation even for avowedly personal

use.

First, there is no ‘‘right to be let alone’”’ in a cus-

toms search at the nation’s borders, which is very

different from a police search through a private

library. An individual’s luggage, as well as his person,

has traditionally been subject to examination by gov-

ernmental authorities at customs without probable

cause or a search warrant; this is permitted by stat-

utes going back more than a hundred years. 19 U.S.C.

482, 1582. Carroll v. United States, 267 U.S. 132, 150-

154; Boyd v. Untted States, 116 U.S. 616, 623-624;

Alexander v. United States, 362 F. 2d 379, 382

(C.A. 9), certiorari denied, 385 U.S. 977. Cf. Colon-

nade Catering Corp. v. United States, 397 U.S. 72, 76.

Such searches are necessary unless the government’s

legitimate objective of preventing smuggling is to be

severely impaired. Because of this paramount govern-

mental interest, property which in other circum-

stances is afforded greater protection is not protected

by the right of privacy at the border. Books and

papers may be examined if for no other reason than

to see what may be concealed between their leaves.

Second, the customs procedures here are procedures

in rem—strictly against the materials (which Stanley

does not protect) and not against the individual seek-

*The question need not be reached in this case; but if not

reached, we note that it is pending in two other cases now

before. the Court at the jurisdictional stage: United States v.

Various Articles of “Obscene” Merchandise, supra; United States

v. 12 200-ft. Reels of Super 8 mm. Fili No. 364, this Term.

16

ing to import them. Mr. Stanley was accused of a

crime, for which he might have been punished by a

fine or sentence. Here, no crime is charged; the entire

issue is whether certain merchandise, which by hy-

pothesis has no saving content of ideas or other merit,

must be admitted into the country. The power of Con-

gress to exclude any matter from entry, save as it may

be protected by the Constitution, is complete. It is not

a question of attempting to regulate private morals or

thought by criminal sanction; Congress is exercising

its undoubted power to exclude what it deems noxious

to the nation as a whole and which, in itself, can claim

no First Amendment protection. See Roth, supra, 354

U.S. at 485; Chaplinsky v. New Hampshire, 315 U.S.

568, 571-572.

Finally, there is a rational basis for Congress to

conclude that public morality—not simply an indi-

vidual’s private thought—is threatened even by im-

portations avowedly for personal use. When, as in

Stanley, material is found by accident hidden in a

desk in a private home, one may have considerable

confidence that it is meant only for private use. At the

country’s borders, before it has reached its ultimate

destination, no such confidence is possible. Save in the

ease of bulk shipments or matter inherently com-

mercial, such as 35 mm. motion picture film, non-

commercial importations are not self-identifying. Two

or three copies of catalogues together with samples, see,

€.g., 12 200-Ft. Reels, etc., supra, might fuel a sizeable

mail-order operation. Once permitted past the customs

barrier, they cannot be retrieved no matter how they are

17

used. The assertion that the materials are intended for

private use is easy for an importer to make. To adopt

a rule which makes that assertion sufficient, as a mat-

ter of constitutional law, to force entry would be to de-

prive customs officers of necessary flexibility in

administering the customs statute.*

I. APPELLEE, WHO ADMITTED THAT HE WAS IMPORTING THE

MATERIAL HERE FOR SUBSEQUENT COMMERCIAL DISTRIBU-

TION, LACKS STANDING TO CHALLENGE THE CUSTOMS OB-

SCENITY STATUTE ON THE GROUND THAT IT ALSO PROHIBITS

THE IMPORTATION OF OBSCENE MATTER FOR STRICTLY

PRIVATE USE

Even assuming, arguendo, that there is a right to

import obscene material solely for private use, the

government may nonetheless prohibit importation of

obscene material, such as that involved in this case,

which is intended for commercial distribution. See

United States v. Articles of “Obscene”? Merchandise,

*As this Court has previously been informed, the govern-

ment’s policy in prosecuting violations of the mail obscenity

statute, 18 U.S.C. 1461, is not to prosecute mailings which are

consensual, adult, and private in nature. See Redmond v.

United States, 384 U.S. 264. While such a policy might be

wise in the customs area, and undoubtedly is followed by in-

dividual customs officers, officially there is no such policy at

present. Our point here is that, in view of the danger of false

statements in the customs process and the limitations on infor-

mation available to the customs officials regarding actual in-

tended use, there is no constitutional requirement that material

be admitted once it is promised that it will be used only pri-

vately. The statute itself, in providing for importation of “the

so-called classics * * *,” twice emphasizes the need for dis-

cretion on this issue. While that exception undoubtedly has been

deprived of operative impact by the trend of this Court’s de-

cision, the emphasis is nonetheless instructive.

18

315 F. Supp. 191 (S.D. N.Y.), pending on jurisdic.

tional statement, No. 706, this Term. Any other rule

would make meaningless the reference to Roth in

Stanley. Indeed, the court below assumed that a cus-

toms statute limited to importations for commercial

use might be valid; it based its decision on the stat-

ute’s application also to importations for private use,

and held the entire statute invalid on that ground

alone. This conclusion ignored the express provision

of the Congress that if the statute should be held in.

valid as applied to ‘‘any person or circumstances * * *

the application of such provision to other persons or

circumstances shall not be affected thereby.” 19 U.S.C.

1652. But beyond that, we submit, whatever freedom

individuals might have to import obscene materials

for personal use, commercial importers have no stand-

ing to assert those rights in behalf of their own, quite

different, activities.

It is true that when First Amendment freedoms

have been involved, this Court has relaxed to some

extent the traditional rule of standing, see, e.g., United

States v. Raines, 362 U.S. 17, 21, and “allowed at-

tacks on overly broad statutes with no requirement that

the person making the attack demonstrate that his

own conduct could not be regulated by a stat-

ute drawn with the requisite narrow specificity.”

Dombrowski v. Pfister, 380 U.S. 479, 486; N.A.A.C.P.v.

Button, 371 U.S. 415, 432-433; Thornhill v. Alabama,

310 U.S. 88, 97-98. The reason for this relaxed rule

of standing is the possible ‘‘chilling effect’ of such

statutes on the exercise of First Amendment rights.

19

Permitting individuals to attack such a statute, irre-

spective of its application to their particular activity,

is a means of lessening substantially the pros-

pect that persons whose activity is constitution-

ally protected will refrain from exercising their

rights for fear of criminal sanction. See Thornhill v.

Alabama, 310 U.S. 88, 97-98; Dombrowski v. Pfister,

380 U.S. 479, 486-487. The cases in which this Court

has applied this rationale, however, have involved

statutes which are vague, as well as overbroad. Thornhill

vy. Alabama, supra; Dombrowski v. Pfister, supra.

And it is the vagueness which causes the “chilling

effect” justifying the more permissive approach.

Even if the customs obscenity statute were held

to be overbroad, having valid application to commercial

importation but being invalid as applied to importa-

5 Freedman v. Maryland, 380 U.S. 51, on which the court be-

low relied, may appear to be an exception. But that case held

only that any claimant may challenge the procedures of a

licensing statute granting broad power to seize allegedly ob-

scene material, where the sweeping nature of those procedures,

on their face, substantially inhibits the rights of those who may

be entitled to First Amendment protection. See 380 U.S. at

56-57; cf. Interstate Circuit v. Dallas, 390 U.S. 676, 683-684.

Accordingly, we concede appellee’s standing to challenge the

procedures of Section 1305, whether or not the materials he

seeks to import are in fact obscene; he would, indeed, be

threatened if the statute involved excessive procedures, though

we contend that it does not. And appellee would have standing

to challenge the application of Section 1305 if it embodied a

“vague” standard, as did the cases in the text. But here the

only contention is overbreadth, that in addition to assumedly

proper application to appellee, the statute improperly applies

to some others. Freedman is no authority for the proposition

that appellee has standing to make that limited claim.

tion for personal use, it is not vague. The distinction

between intended commercial and personal use is

sufficiently clear to remove any uncertainty regard.

ing the reach of the statute if valid only in applica-

tion to commerce. Similarly, the statute is not uncon-

stitutionally vague in its designation of what materials

may not be imported. That issue was settled by Roth,

where the Court held that the term ‘‘obscene” was not

impermissibly vague. 354 U.S. at 491-492. The Court

then adopted, and has since consistently adhered to,

an approach to the obscenity question in which the

issue is not the invalidity of statutory provisions on

their face, but whether the provisions are invalid as

applied. £.g., Ginzburg v. United States, 383 U.S. 463,

475; Mishkin v. New York, 383 U.S. 502, 507; Redrup

v. New York, 386 U.S. 767; Note, The First Amend-

ment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 884-

887, 921-922. The statute does not, in short, chill the

exercise of First Amendment rights.

There is consequently no reason to permit a com-

mercial importer, whose activity is the “sort of ‘hard-

core’ conduct that would obviously be prohibited under

any construction” of the statute, Dombrowski v. Pfis-

ter, supra, 380 U.S. at 491-492, to escape application

of the statute to him by challenging the validity of its

possible application to a manifestly different situa-

tion.* It would be improper to strike down the entire

*In analogous commercial solicitation cases, this Court has

held that it is “not open to the solicitors for gadgets or

brushes” to assert the First Amendment claims of non-com-

mercial distributors of pamphlets or magazines. Compare

Breard vy. Alexandria, 341 U.S. 622, 641, Valentine v. Chresten-

21

statute at the behest of one to whom it validly applies,

Roth v. United States, supra, when any overbreadth

ean be cured by a restrictive interpretation which will

avoid constitutional doubt or by excising invalid

portions of the statute. 19 U.S.C. 1652, supra. See

Scales v. United States, 367 U.S. 203; Noto v. United

States, 367 U.S. 290; Sedler, Standing to Assert Jus

Tertit in the Supreme Court, 71 Yale L.J. 599; Note,

supra, 83 Harv. L. Rev. at 907-910, 918-923. This ap-

proach was recently adopted, as to this very statute,

by a three-judge district court in the Southern District

of New York. United States v. Articles of “Obscene”

Merchandise, supra, 315 F. Supp. at 196-197.’

I, THE CUSTOMS STATUTE PROHIBITING THE IMPORTA-

TION OF OBSCENE MATTER PROVIDES ADEQUATE ADMIN-

ISTRATIVE AND JUDICIAL SAFEGUARDS FOR THE DETER-

MINATION OF WHETHER THE IMPORTED MATERIAL IS

OBSCENE

Section 1305(a) authorizes administrative detention

of material seized at customs for only a short period

of time preliminary to a prompt judicial determina-

tion of the question whether the material is obscene,

and places the burden of seeking that determination

sen, 316 U.S. 52, and Ginzburg v. United States, 383 U.S. 463,

415, with Martin v. Struthers, 319 U.S. 141. See also Note,

supra, 83 Harv. L. Rev. at 908-910; New York State Broad-

casters v. United States, 414 F. 2d 990 (C.A. 2), certiorari

denied, 396 U.S. 1061.

*The court cited United States v. One Carton Positive Motion

Picture Film Entitled “491” 367 F. 2d 889, 898 (C.A.

2) and United States v. A Motion Picture Film Entitled “Pattern

of Evil,” 304 F. Supp. 197 (S.D. N.Y.), as examples of deci-

sions upholding the validity of 19 U.S.C. 1305(a) as applied

to commercial importation of obscenity.

22

on the government. The court below, relying on Freed.

man v. Maryland, 380 U.S. 51, held this procedural

scheme unconstitutional for failure to establish a

“specified brief period’’ of time limiting the duration

of the proceedings (App. 26). We believe, however,

that the seizure and forfeiture provisions of the stat-

ute are not invalid because Congress did not fix exact

time limits. See Interstate Circuit v. Dallas, 390 US,

676, 678-680, 690, n. 22.

In Freedman, a state statute required motion pic.

ture exhibitors to submit all films to a board of censors

for approval prior to exhibition. 380 U.S. at 52, 54,

There was no time limit on completion of the review-

ing board’s action and the burden of initiating judi-

cial review of its decision was on the exhibitor. Jd. at

55. This Court held this system invalid because it

lacked necessary ‘‘procedural safeguards designed to

obviate the dangers of a censorship system.” Id. at 58,

Specifically, it did not place upon the censor the

burden of proving that the film is not protected

expression; there was no assurance “by statute or

authoritative judicial construction, that the censor

will, within a specified brief period,” either approve

the film or go to court to restrain its exhibition; nor

was there assurance that any “restraint imposed in

advance of a final judicial determination * * * [is}

limited to preservation of the status quo for the shortest

fixed period compatible with sound judicial resolution”;

and, finally, there was no guarantee of a “prompt final

judicial decision.”’ Id. at 58-59.

The Court subsequently invalidated a Chicago prior

23

censorship system because the period fixed for ad-

ministrative determination. of obscenity (50 to 57

days) was excessive and because there was no pro-

vision for prompt adjudication by the courts. Tettel

Film Corp. Vv. Cusack, 390 U.S. 139. By contrast, in

Interstate Circust v. Dallas, 390 U.S. 676, the Court

approved a city ordinance requiring prior classification

of motion picture films where the total administra-

tive period, although not entirely fixed, was quite

short,° and there was provision for speedy judicial

resolution of the issue. Similarly, the procedural sys-

tem in this case affords the safeguards which Freed-

man and its progeny require. The government bears.

the burden of action and proof throughout, and must

secure judicial as well as administrative condemnation.

of any material it seeks to bar. Both the administra-

tive and judicial periods during which allegedly ob-

scene material is detained are the shortest compatible

with sound resolution of the question of obscenity.

The validity of initial detention of questionable ma-

terial is plainly proper in light of the broad congres-

sional power to regulate the importation of goods from

abroad and the numerous regulatory purposes that

*The ordinance had a provision that if the classification

board was dissatisfied with the exhibitor’s proposed classifica-

tion of the film, the exhibitor was required to project the film

before the board at the “earliest time practicable.” Thereafter,

the ordinance provided for various brief maximum periods

within which particular administrative determinations or court

actions had to be made. This Court reversed the lower court’s

issuance of an injunction against showing of the movie in

question on the ground that the standards for censorship were

woconstitutionally vague.

Lea ATER pe anne

or a ee ee ene en ree

aes YIP RON Ie RE oY NI OS A Late

Sp ge eT LT T

detention serves. E.g., United States v. One Carton

Positive Motion Picture Film Entitled “491”, 367 ¥.

2d 889, 898 (C.A. 2); United States v. 392 Copies of

a Magazine Entitled “Exclusive”, 253 F. Supp. 485,

490-491 (D. Md.), affirmed, 373 F. 2d 633 (C.A. 4),

reversed on other grounds sub nom. Central Magazine

Sales, Ltd. v. United States, 389 U.S. 50. Serious ques-

tions would arise, once materials had been permitted

past the customs barrier, whether the government’

interest had not become moot.

Section 1305(a) provides that “[u]pon the seizure”

of an article thought to be obscene, ‘‘the collector shall

transmit information thereof to the district attorney

of the district * * * who shall institute’’ forfeiture

proceedings in the district court. Customs agents who

initially seize material are required to report their

action “immediately” to the collector, 19 U.S.C. 1602.

The United States Attorney, in turn, must cause the

proper proceedings to be commenced and prosecuted,

“forthwith * * * without delay,” 19 U.S.C. 1604.

The legislative history of 19 U.S.C. 1305(a) indicates

that Congress intended the judicial determination of ob-

seenity to be prompt. The original 1930 bill made no ref-

erence to judicial proceedings, stating only that obscene

material “shall be subject to seizure and forfeiture

under the customs laws.’’ 72 Cong. Ree. 5414. Fears of

administrative censorship expresed in the Senate de-

bate, id. at 5417-5423, 5517-5518, led to a proposed

amendment requiring judicial proceedings. Id. at 5421

The amendment required the customs collector to refer

matter seized as obscene “immediately’’ to the district

attorney. Ibid. It was understood that this would lead

25

toa “prompt determination of the matter by a decision

of that court.” Id. at 5424. The proposal met with gen-

eral approval. Id. at 5421-5424. But because the

amendment provided for a jury trial, it was rewritten ;

the word ‘‘immediately’’ was omitted in this revision.

Id. at 5423-5424. The section was then passed in its

present form. Id. at 5520. There is no indication in

the debate, however, that the omission was intended

to alter the purpose of the amendment to require

prompt proceedings, and those courts which have con-

sidered the legislative history of the statute have

agreed. H.g., United States v. One Carton Positive

Motion Picture Film Entitled “491’’, 367 F. 2d 889,

899 (C.A. 2); United States v. One Book Entitled

“The Adventures of Father Silas,’ 249 F. Supp. 911,

916-918 (S.D.N.Y.). See, also, United States v. 392

Copies of a Magazine Entitled “Exclusive”, supra.

United States v. 56 Cartons Containing 19,500 Copies

of a Magazine Entitled “‘Hellenic Sun”, 373 F. 2d

635 (C.A. 4), reversed on other grounds sub nom.

Potomac News Co. v. United States, 389 U.S. 47;

United States v. 77 Cartons of Magazines, 300 F.

Supp. 851, 853 (N.D. Cal.).

The several decisions which have upheld the proce-

dures of Section 1305(a) in spite of the absence of

legislatively fixed periods have placed stringent limits

on the permissible length of administrative and judi-

cial proceedings. In “Hellenic Sun” 14 days between

entry and institution of proceedings, and another 18

days before filing of the opinion (or 27 days until the

formal order was entered) were approved. 373 F. 2d

2 SE TORT SarRE eRe te oer

at 637-638. In “Ezclusive’’ periods of 14 days between

entry and institution of proceedings, and about six

weeks prior to decision were sustained (373 F. 2d ai

633-634).° Periods of 176 days and 209 days, respee.

tively, were approved in “491”, but approval rested m

the ground that most of the delay was attributable t

the importer. 367 F’. 2d at 903-904. In “Father Silas,”

periods of 98 days and 165 days were disapproved. 249

F. Supp. at 914-915. After this decision the Customs

Bureau and the Department of Justice adopted new

procedures designed to streamline the administrative

determination of obscenity. See the “Haclusive” case,

253 F. Supp. at 488-489."° These judicial and adminis.

trative interpretations of Section 1305(a) provide the

® The latter period was found reasonable because of the inter.

vention of this Court’s decisions in the Mishkin, Ginzburg, and

Memoirs cases which necessitated the filing of additional briefs

253 F. Supp. at 491.

The present Bureau of Customs Circular (RES-15-RM,

July 13, 1966) provides that: (1) the first examination of any

material which may include obscene material shall be mad

“as soon as possible” after it is available for customs examins-

tion; (2) if the first examining officer determines that further

review of the material is necessary at the district level, th

material shall be reviewed by the district director or his dele

gate “no later than the following business day”; (3) if, at any

review, the material is determined not to be obscene, it shall

be released; (4) if, at any review, the material is determined

to be obscene, an assent to forfeiture shall be solicited “forth-

with”. If assent is not forthcoming “within one week”, or if

assent is declined, the material shall be referred to the United

States Attorney “immediately”; and (5) if it is felt that the

material is probably obscene but there is no clear precedent for

the determination, the material shall “immediately” be for-

warded for review to the Bureau “by the most expeditious

means.”

. al

ell ce Se ee, ee ee,

= La Se a

27

requisite assurance of a prompt determination by a

court on the issue of obscenity and, for that matter,

sufficiently define a ‘“‘specified brief period.” More

rigid time limits would, in fact, seem undesirable. As

the court noted in the “491”’ case, ‘‘specific time limi-

tations on administrative action * * * would serve

only to inject inflexibility into the regulatory scheme

authorized under Section 305.” * 367 F. 2d at 899. See,

also, “Father Silas’’, supra, 249 F. Supp. at 923.

The promptness with which forfeiture proceedings

took place in this case further confirms that the lack

of legislatively fixed times creates no constitutional

problem.” The photographs were seized on October 24,

"A flexible period within which to initiate court action

serves several legitimate purposes. For example, it allows

careful consideration of material which may present a close

question of obscenity so that the Customs Service can properly

exercise its duty to select material for judicial consideration

with due regard for the interests of both the public and the

importer. See “491,” supra, 367 F. 2d at 902. And, at times

when the volu: + of goods entering the country is at a peak,

- flexibility will . ure that obscene material does not pass through

customs simply because government officials missed a deadline

by a day or two.

* An additional example of the speed with which administra-

tive and judicial action takes place under Section 1305(a) is

provided by proceedings regarding the film “Quiet Days in

Clichy”. The movie was seized at customs in Los Angeles on

May 2. A complaint for forfeiture was filed on May 19. Rely-

ing on its previous decision in this case, United States v.

Thirty-Seven Photographs, 309 F. Supp. 36, the district court

ordered the complaint dismissed on May 20. On May 30, Mr.

Justice lack stayed that order, on motion of the United States.

The United States pointed out then and thereafter that the

claimant had not permitted the obscenity of the film to be

determined in the forfeiture proceedings, and that it stood

ERENT Se Rm

1969 (App. 24). Within thirteen days, on November$,

1969, the instant forfeiture action was commencaj

(tbid.). Plainly, as appellee conceded below (App,

26), the government instituted the judicial proceeding

rapidly and without delay. Another two months

elapsed before the three-judge court hearing of the

matter on January 9, 1970. But this delay was

not chargeable either to the government officials or to the

court procedures under Section 1305(a). Rather it

was caused primarily by appellee’s invocation of the

three-judge court machinery. Although appellee was

entitled to seek a three-judge court, his choice should

not entitle him to argue that the consequent delay

renders the statutory procedures invalid as to him. See

the “491” case, supra, 367 F. 2d at 903-904. Finally,

the decision was rendered on January 27. A period of

two weeks for consideration of the difficult constitu

tional questions and writing an opinion is hardly

excessive. In sum, the three-month period was com-

pletely consistent with prompt, yet responsible, admin-

istrative and judicial proceedings on the issue of the

obscenity of the material seized.

ready to proceed on that issue if claimant so desired. On

June 29, this Court denied a motion by claimant to vacate

the stay, with leave to renew if “a trial on the obscenity ve

non of this film has not commenced by August 3, 1970, unless

any delay of the trial beyond that date has been occasioned

by * * * Grove Press.” United States v. Ten Reels of a Mo-

tion Picture Entitled “Quiet Days in Clichy,” Grove Press, Inc.

claimant, 399 U.S. 920. Trial commenced within a week of that

order; the film was found not obscene.

29

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the decision of the district court should be

reversed.

a

Erwin N. Griswo.p,

Solicitor General.

Wu Wison,

Assistant Attorney General.

JOHN F. DIENELT,

Assistant to the Solicitor General.

Rocer A. Pavey,

Rosert E. Lrnpsay,

Attorneys.

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