Motion — United States v. 12 200-Ft. Reels of Super 8MM. Film

ON APPEAL, ynoM "ER UNITED STATES BISTRIOE COUR 708,

CENTRAL DISTRICT OF CALIFORNIA,

Table of Contents.

Morrow ron LEAVE 10 FILE BRIEF AMICUS CURIAE

AMICUS CURIAE BRIEF IN SUPPORT OF CLAIMANT-APPELLEE

2

* M e % Mm

I. The Constitution Prohibits seizure of obscenity

disereetly imported by an adult for personal use 5

II. Even if the Government would have power to

_ Seize pornography imported for personal use

under an appropriately limited statute, it may

not do so under the unconstitutionally overbroad

provisions of 19 U.S.C. ¢ 1305

. Table of Authorities Cited.

_ American Motorcycle Ass 'n v. Davids, 158 N. W. 2d

72 8n.

a d v. Alexandria, 341 U.S. 622 12, 13n.

_ Dombrowski v. Pfister, 380 U.S. 479 12

_ Everhardt v. New Orleans, 208 So. 2d 423 Sn.

‘Griswold v. Connecticut, 381 U.S. 479 6, 9

Jones v. Opelika, 316 U.S. 584 12

Martin v. Struthers, 319 U.S. 141 12

Murdock v. Pennsylvania, 319 U.S. 105 12

Stanley v. Georgia, 394 U.8.557 ., 4, 5, 6, 7, 8, 9, 10, 11

United States v One Magazine, D. Mass. Misc. Civ.

No. 70-45-F 3

ii TABLE OF AUTHORITIES CITED

United States v. Reidel, 402 U.S. 351 7,8

United States v. 31 Photographs, 156 F. Supp. 350 11

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

363 12

United States v. Various Articles of Obscene Mer-

chandise, Fred Cherry, Claimant, No. 706 (1969

Term) An.

Valentine v. Chrestensen, 316 U.S. 52 12

: SraTures.

U.S. Constitution, First, Fourth, Fifth & Ninth

Amendments 6, 7

Mass. General Laws, c. 272, § 21 8n.

19 U.S.C. § 1305 4, 5, 8n., 10, 11, 12, 14

MISCELLANEOUS.

82 Harv. L. Ed. 469 8n.

Kaplan, J., Marijuana—The New Prohibition, 312

(1970) 8n.

Mill, J. S., On Liberty, 9 (A. Castell ed. 1947) | 6

Note, The First Amendment Overbreadth Doctrine,

83 Harv. L. Rev. 844 (1970). 12 ,13

Supreme Court of the United States.

Ocroser TAN, 1971.

No. 70-2.

UNITED STATES OF AMERICA,

Appellant,

v.

12 200-FT. REELS OF SUPER 8 MM. FILM er Al.,

Appellees,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA.

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE.

Christopher W. Walker respectfully moves that this

court permit him to file an amicus curiae brief in support

of the claimant-appellee in United States v. Twelve 200-

Foot Reels of Super 8 mm. Film, No. 70-2. Movant’s interest

in the case is set forth in section I of the brief filed here-

with.

Respectfully submitted,

By his attorneys,

ROGER C. PARK,

HARVEY A. SILVERGLATE,

ZALKIND & SILVERGLATE,

148 State Street,

Boston, Massachusetts 02109.

3

Supreme Court of the United States,

Octoszr TRR, 1971.

No. 70.2. 75

UNITED STATES OF AMERICA,

Appellant,

v.

12 200-FT. REELS OF SUPER 8 MM. FILM er AL.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA.

AMICUS CURLAE BRIEF IN SUPPORT OF

CLAIMANT-APPELLEE.

Interest of Amicus Curiae.

hence are privileged against seizure under Stanley v.

Georgia, 394 U.S. 557 ( 1969). After initiating the forfeiture

action, the government moved that the action against

4

claimant Walker’s magazines be stayed pending this court’s

clarification of the scope of Stanley v. Georgia.’ The stay

was granted over claimant Walker’s opposition. It is still

in effect and claimant Walker’s magazines are still in the

hands of the government.

The Solicitor General granted permission to file a brief

amicus curiae in the instant case on January 4, 1971.

Amicus has been unable to reach claimant-appellee Ariel

G. Paladini to request permission from him to file an

amicus brief.“

Amicus fears that the following arguments would not

receive sufficient development if his brief were not

accepted :

(1) That Stanley v. Georgia, as a decision protecting an

individual’s right to harm his own mind if he pleases, con-

veys an absolute privilege upon mere private possession of

obscenity.

(2) That 19 U.S.C. § 1305, though constitutional in its

application to commercial importation, is unconstitutionally

overbroad in its application to private importation.

Amicus notes that the claimant-appellee is appearing

pro se in the instant action, and hence amicus briefs may

be necessary for full development of essential issues.

1 The government specifically moved that claimant Walker’s case

be stayed pending the outcome of United States v. Various Articles

of Obscene Merchandise, Fred Cherry, Claimant, No. 706 (1969

Term), a case raising a Stanley v. Georgia issue substantially

identical to the present one. United States v. Various Articles of

Obscene Merchandise was dismissed on June 23, 1971, pursuant to

Rule 60.

2 Appellee Paladini is appearing pro se. Mail sent by amicus to

appellee’s addresses of record, P.O. Box 451, Sierra Madre, Calif.,

and 144 East Highland, Apartment F, Sierra Madre, Calif., has

been returned marked moved, left no address.

5

Summary of Argument.

Stanley v. Georgia, 394 U.S. 557 (1969), creates a sphere

of private autonomy which the government may not directly

breach to protect the individual from reading or

observing what he pleases. The government may prohibit

commercial distribution, but it may not seize pornography

belonging to the ultimate consumer. Mere private posses-

sion by an adult for purely personal use is absolutely

privileged, at the border no less than in the home.

Even if mere private possession is not absolutely privi-

leged, 19 U.S.C. § 1305(a) is unconstitutionally overbroad

because it applies to both privileged and unprivileged forms

of private possession. Commercial distributors do not have

standing to challenge the overbreadth of § 1305(a), since

commercial distribution is a hard core“ violation clearly

beyond any constitutional privilege. However, all adults

who possess pornography for purely personal use do have

standing to challenge § 1305(a), and as to them the statute

is unconstitutional. }

t

air)

I. Tun Cowstrrvtion Prom Serure or Osscenrry

Discreet Importep sy an Apuur ron Personat Use.

Stanley v. Georgia, 394 U.S. 557 (1969), conferred a con-

stitutional privilege upon what is characterized as the

mere private possession of obscene matter. 394 U.S. at

559. The Stanley court rejected the argument that the state

has the right to protect the individual’s mind from the

effects of obscenity.“ 394 U.S. at 565. It noted that there

appeared to be little empirical basis“ for the assertion

that exposure to obscene materials leads to deviant sexual

behavior or crimes of sexual violence, 394 U.S. at 566, and

concluded that ‘‘[g]iven the present state of knowledge,

the State may no more prohibit mere possession of obscene

matter on the ground that it may lead to antisocial conduct

than it may prohibit possession of chemistry books on the

the ground that they may lead to the manufacture of home-

made spirits.“ 394 U.S. at 567.

The chief thought behind Stanley was that the state had

no business prohibiting mere possession of pornography

by an individual because of a paternalistic desire to prevent

him from harming himself. Thus, Stanley’s roots are not

in the First Amendment’s specific provisions for free

speech but in the time-honored libertarian doctrine that

‘*(T]he sole end for which mankind are warranted,

individually or collectively, in interfering with the

liberty of action of any of their member, is self-protec-

tion. That the only purpose for which power can be

rightfully exercised over any member of a civilized

community, against his will, is to prevent harm to

others. His own good, either physical or moral, is ‘not

a sufficient warrant.“ J. S. Mill, On Liberty, 9 (A.

Castell ed. 1947).

These ideals are clearly embedded in American constitu-

tional tradition, and for legal purposes they can be

grounded on the due process clause of the Fifth Amend-

ment, on the penumbras of the First, Fourth and Fifth

Amendments, or on the Ninth Amendment. See generally

Griswold v. Connecticut, 381 U.S. 479 (1965).

Stanley did not, of course, establish an absolute rule pro-

hibiting states from enacting laws to protect individuals

from self-harm. Many such statutes have been passed, and

no doubt others will be in the future. Two features of the

statute examined in the Stanley case made it particularly

offensive. First, the statute sought to protect individuals

not from physical harm, but from mental harm caused by

7

receipt of information and ideas. The Court was clearly

disturbed by this feature. It characterized Georgia’s

argument as being that states could deal with possession

of obscenity

„ . . just as they may deal with possession of other

things thought to be detrimental to the welfare of their

citizens. If the State can protect the body of a citizen,

may it not... protect his mind?”

In the course of rejecting this argument, the court em-

phasized that individuals have a right to receive informa-

tion and ideas, regardless of their social worth,“ 394 U.S.

at 564. This language does not carry with it a correlative

right to distribute. It merely reflects the court’s belief

that direct interference with an individual’s autonomous

monitoring of his self-regarding conduct is more offensive

when the state seeks to prevent him from harming his

mind instead of his body. The Stanley court’s recognition

of the right to a zone of personal privacy within which

individuals may monitor what they choose to receive

mentally is thus not weakened by the court’s subsequent

holding in United States v. Reidel, 402 U. S. 351 (1971), that

commercial distributors may be prosecuted and that

obscenity is not within the protection of the First Amend-

ment.

Secondly, the statute examined in Stanley directly in-

truded upon the life of the individual, instead of indirectly

protecting him by punishing commercial distributors. The

Stanley court understandably distinguished between com-

mercial distributors and private possessors, thereby con-

forming to a tradition in American law of regulating self-

regarding harm principally by striking at commercial

* facilitators and abettors, rather than directly interfering

vith what individuals have chosen to da with their own

SOR ALN OE ERAS la BS Rigs aes ORL ag OR SMe EM ER Rhone SR NE Ok Ty a aS, 33

minds and bodies.“ There is absolutely no inconsistency

between recognition of an absolute right to purely private

possession of obscenity and broad power to prosecute com-

mercial distributors.

The offensive features described in the foregoing para-

graphs are just as prominent in the instant case as they

were in Stanley. Understandably, the government passes

over these features and fixes upon the fact that Stanley’s

pornography was seized in his house. Evidently, in the

government’s view, an individual may possess obscenity

in his home but not in his automobile, his wallet, his lug-

gage, his office desk, his safe deposit box, his mail or any

other personal and private places. Such a strange result

cannot lightly be accepted, notwithstanding the language

in Stanley emphasizing the importance of the home. The

Constitution does not make the home a medieval sanctuary

beyond the law’s reach, nor does an individual give up his

right to be free from government interference when he steps

beyond the threshold. He carries with him a „protective

zone ensuring the freedom of [his] inner life, be it rich

or sordid. United States v. Reidel, supra, 402 U.S. at 360

(concurring opinion of Mr. Justice Harlan).

For example, distribution of instruments for use in masturba-

tion has been forbidden, e.g., Mass. General Laws, c. 272, § 21, but

the act itself has hardly ever been prohibited, despite its supposed

harms. See J. Kaplan, Marijuana—The New Prohibition, 312

(1970). This approach has been followed by many lawmakers in

dealing with other consensual or ‘‘victimless’’ crimes such as

gambling, prostitution, abortion or sale of alcohol to minors.

Similarly, the government has chosen to require that automobile

manufacturers furnish seat belts, even to customers who would not

otherwise request them, but it has not required drivers to buckle

them. Indeed, the constitutionality of such a requirement would be

in doubt. See American Motorcycle Ass’n v. Davids, 158 N.W. 2d

72 (Mich. Ct. App. 1968), noted, 82 Harv. L. Rev. 469; Everhard+

v. New Orleans, 208 So, 2d 423 (La. Ct. App. 1968) (requirement

that motorcyclists wear crash helmets unconstitutional).

The government’s brief confuses the concept of privacy

with the concept of secrecy. Stanley was not intended simply

to protect an individual from ‘‘intrusive inquiry“ to

determine the nature of materials possessed by him. That

goal could have been accomplished simply by prohibiting

the government from searching homes for the purpose of

discovering pornography. Stanley clearly goes beyond that,

and prevents the government’ from prosecuting an in-

dividual for possessing pornography at home even if it

could do so without the necessity of a search of the home.

The privacy“ protected in Stanley and Griswold v. Con-

necticut is not a narrow protection of an individual’s right

to secrecy in certain physical spheres. It is a right to

privacy“ in a broader sense—in the sense that an in-

dividual has a sphere of private autonomy in which, in

dealing with his own thoughts and his own mind, he may

be free from direct governmental interference so long as

he acts discreetly and does not harm others. The state

interferes with this private sphere whenever it seizes

obscenity belonging to the ultimate consumer, whether the

seizure takes place at home, in transit, or from the mails.

Hence, seizure of obscenity from luggage at a border

crossing constitutes an unconstitutional interference with

“privacy”? whether or not the contents are entitled to

secrecy.

inally, the government argues that laws against the dis-

tribution of obscenity cannot be effectively enforced if

persons are allowed to import obscenity for alleged private

use. This argument is essentially the same as the one ad-

vanced by the state in Stanley v. Georgia, and rejected by

the Court:

[Wie are faced with the argument that prohibition

of possession of obscene materials is a necessary in-

cident to statutory schemes prohibiting distribution.

That argument is based on alleged difficulties of

10

proving an intent to distribute or in producing evidence

of actual distribution. We are not convinced that such

difficulties exist, but even if they did we do not think

that they would justify infringement of the individual’s

right to read or observe what he pleases.’’ 394 U.S. at

567-568.

The government has produced no empirical evidence to

demonstrate why it is any more necessary to seize small

quantities of obscenity at the border than it is to seize

obscenity in the home. A priori, there seems to be no reason

why would-be distributors of obscenity would be more

likely to import obscenity from abroad—thereby creating

additional risk of criminal prosecution based on discovery

during customs searches—than they would be to manufac-

ture it at home. At any rate, if Congress desires to restrict

the private importation of obscenity in order to prevent

covert importation for commercial purposes, it should do

so in an appropriately limited statute. For example, Con-

gress could provide that importation of more than a certain

quantity creates a presumption that the purpose is distribu-

tion ; it could provide for registration of private importers;

it could make a false statement as to the purpose of im-

portation a separate crime; perhaps it could even place the

burden of proof as to the purpose of the importation upon

the importer rather than the government. There are clearly

less restrictive alternatives to the all-inclusive approach

of § 1305.

I. Even rr tHe GoverNMENT WOULD HAVE Power To SEIZE

PorwocraPHy ImportTep ror PersonaL Use UNDER AN AP-

PROPRIATELY Limrrep Statute, rr May Nor bo sO UNDER

THE UnconstiruTionaLty Oversroap Provisions or 19

U.S.C. § 1305.

Even if Stanley is given a narrow reading, so that it

does not even protect the traveler carrying a small quantity

11

of pornography for personal use, 19 U.S.C. § 1305 would

still be unconstitutional in many of its potential applica-

tions. Whatever the scope of the protective zone of privacy

created by Stanley, it must at least cover such items as

obscene letters between marital partners, an obscene diary,

or an obscene manuscript carried by a traveler in his per-

sonal effects. These items could be subject to seizure under

§ 1305’s broad prohibition of any obscene writing.

Even without the Stanley doctrine, & 1305 would clearly

be unconstitutional in some of its applications. For ex-

ample, the statute provides that the Secretary of the

Treasury may, in his discretion, admit the so-called classics

or books of recognized and established literary and scien-.

tific merit. This clause implies that in the absence of

a discretionary act by the Secretary, even books with clear

redeeming social value—books with established literary

and scientific merit —are subject to seizure under the

statute. Moreover, § 1305 by its terms prohibits importa-

tion of books which lack literary or scientific merit but

which are intended for use in legitimate scientific research.

Importation of hard core pornography for bona fide re-

search purposes is constitutionally privileged. United

States v. 31 Photographs, 156 F. Supp. 350 (S. D. N. V.

1957). Finally, § 1305 is vague and overbroad because it

contains a prohibition of ‘‘immoral’’ articles. The concept

of ‘‘immorality’’ is undefined and all-embracing, not having

received the same judicial definition and delimitation which

has been given to the concept of ‘ ‘obscenity. ’’

Because of its overbreadth, § 1305 should be invalidated

as it applies to all non-commercial importation of pornog-

raphy. No readily discernible standard can be evolved in

one case which could isolate all of the unconstitutional ap-

plications of § 1305. Nor, within any permissible interpreta-

tion of the original purpose of the statute, can the statute

be restrictively interpreted in one sweep so as to exclude

12

all possible unconstitutional applications. In these circum-

stances, the most appropriate judicial treatment of the

statute is to hold it unconstitutional. See generally Note,

The. First Amendment Overbreadth Doctrine, 83 Harv. L.

Rev. 844, 858-863 (1970).

Commercial distributors do not have standing to raise

the issue of the overbreadth of 5 1305. See United States v.

Thirty-Seven Photographs, 402 U.S. 363, 377 (1971)

(Harlan, J., concurring). Cf. Dombrowski v. Pfister, 380

U.S. 479, 491-492 (1965); United States v. Thirty-Seven

Photographs, supra, 375, n. 3. There is no anomaly, how-

ever, in holding that § 1305 is void for overbreadth as

applied to private importers, but that it may validly be

applied to prohibit commercial importation. Commercial

distributors are within the hard core“ of persons whose

conduct is clearly not constitutionally privileged. The line

between commercial and non-commercial speech activities

is easily understood and well established. Compare Breard

v. Alewandria, 341 U.S. 622 (1951) and Jones v. Opelika,

316 U.S. 584 (1942), with Murdock v. Pennsylvania, 319

U.S. 105 (1943) and Martin v. Struthers, 319 U.S. 141

(1943). See Valentine v. Chrestensen, 316 U.S. 52 (1942).

Holding that commercial importers may not challenge the

overbreadth of § 1305 would therefore have no substantial

chilling effect“ upon persons who are constitutionally

privileged to import obscenity, since such persons can

easily distinguish between commercial and non-commercial

importation. In contrast, no easily understood per se rule

is available which would enable persons affected by § 1305

to distinguish between privileged and non-privileged forms

of non-commercial importation. Whatever constitutional

standard this court adopts, the issue of whether a given

private importation is privileged will turn upon a host of

variables. Individuals desiring to import obscenity would

be unable to predict whether their conduct would be lawful

13

or unlawful. Therefore, the statute should be held com-

pletely invalid as it applies to non-commercial importation.

See generally Note, The First Amendment Overbreadth

Doctrine, 83 Harv. L. Rev. 844, 907-910 (1970). If Congress

desires to prohibit some forms of non-commercial importa-

tion, it should do so in an appropriately limited statute.

Congress is better equipped to promulgate a detailed, com-

prehensive set pf rules establishing bright-line tests of

privilege than is this Court, which must necessarily proceed

by case-by-case adjudication,

The approach urged in the foregoing paragraph is

similar to the one which has been followed by this court in

its review of Green River“ ordinances prohibiting door-

to-door solieitation. Such ordinances have been held invalid

in toto as applied to non-commercial solicitation, even

though some forms of non-commercial solicitation are not

constitutionally privileged. At the same time, ‘‘Green

River“ ordinances have been held enforceable as applied

to commercial solicitors.*

The analysis in . . . Breard [v. Alexandria, 341 U.S. 622

(1951)] . . . suggests that when a law covering both commercial

and noncommercial canvassing is held bad ‘on its face’ it ought

not necessarily follow that the law thereafter is unenforceable. If

cut back to its commercial applications, the law would be shorn of

substantial overbreadth—though at the cost of sparing some un-

protected ‘noncommercial’ activity—and also would be fairly pre-

dictable in its permissible operation. See Note, The Void-for-

Vagueness Doctrine in the Supreme Court [109 U. Pa. L. Rev. 67 ],

108n. 190. Absent fair warning problems, laws invalidated at the

suit of a ‘noncommercial’ complainant—for example, the prohibi-

tion of anonymous pamphleteering condemned in Talley v. Cali-

fornia, 362 U.S. 60 (1960)—might perhaps still be applied with

respect to commercial messages. Note, The First Amendment

Overbreadth Doctrine, 83 Harv. L. Rev. 844, 909-910, n. 258

14

Conclusion.

For the reasons stated above, the court should hold that

importation of pornography by adults for personal use is

constitutionally privileged, and affirm the judgment below.

Alternatively, the court should hold that 19 U.S.C. § 1305

is unconstitutionally overbroad as applied to adults who

import obscenity for personal use, and affirm the judgment

below.

Respectfully submitted,

ROGER C. PARK,

HARVEY A. SILVERGLATE,

ZALKIND & SILVERGLATE,

Attorneys for Amicus Curiae

Christopher W. Walker.