Jurisdictional Statement — United States v. Orito

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APPBAL ¥ROM TH UNITED STATHS DISTRICT COURT FOR

i THE HASTERN DISTRICT OF WISCONSIN

. JURISDICTIONAL STATEMENT

OPINION BELOW

the decision and order of the district court (Ap-

dit » is not yet reported,

¢

ina JURISDICTION

m October 28, 1970, the United States District

rt for the Eastern District of Wisconsin entered

: tision and order (Appendix A) dismissing a one-

it indictment based on 18 U.S.C. 1462, which pro-

ts the interstate transportation of obscerie mate-

[by common carrier. The court dismissed the in-

= ‘on the ground that Section 1462 is overbroad

ts im face because it unconstitutionally extends the

hi tion on interstate transportation of obscene ma-

(1)

terials to those intended solely for privvate use (Appen-

dix A, infra, p. 14). A notice of appeal to this Court was

filed in the district court on October 29, 1970 (Appendix

B, infra, p. 15). “This Court, has jurisdiction under 18

US8.0. 8731 to review on direct appeal from a district

court the dismissal of an indictment based upon the in-

validity of the statute on which the indictment is

founded. See, ¢.g., United States v. Spector, 343 U.S.

169; Caine Riess © Petrillo, 332 U.S. 1.*

ae . Whether 18 U.8.C. 1462, which prohibits the in-

terstate transportation by common carrier of obscene

material irrespective of its in use, is consti-

tutional.

2. Whether, assuming that pie transportation of

obscenity for non-private purposes may be pro-

hibited, the district court erred by considering a

challenge to the statute on its face.

STATUTE INVOLVED

18 U.S.C. 1462 provides in pertinent part:

Whoever brings into the United States, or

any place subject to the jurisdiction thereof,

or knowingly uses any express company of

other common carrier, for carriage in inter-

_ state or foreign commerce—

‘(a) any obscene, lewd, lascivious, or filthy

book, pamphlet, picture, motion-picture film,

“2 The recent amendment to this section, providing for govern-

ment appeal to the courts of appeals in circumstances such 4s

this, applies only to cases begun in: the district courts after

January 2, 1971. See Reply Memorandum for. the United States

in United States v. Brewster, No. 1025, this Term.

se"

¥ : : 9 ba

4 rat

/ paper, letter, writing, print, or other matters

ne indecent character; * * *

eh M445 * * * ‘i *

‘Shall be fined not more than $5,000 or im-

prisoned not more than five years, or both, for

the first such offense and shall be fined not

BN more than $10,000 or imprisoned not more than

ten years, or both, for each such offense there-

ek 7 Biter

a STATEMENT |

"In an indictment, filed: in the United States Dis-

-Court: for the Eastern District of Wisconsin,

‘appellee was charged with knowingly transporting

in, interstate commerce, by means of a common car-

ier, various specified copies of obscene materials in

of 18 U.S.C. 1462. Appellee filed two mo-

to dismiss the indictment on the ground that.

. 1462 is unconstitutional, One motion was based

on the absence of a provision in the statute requir-

ing proof of scienter. The other was based on the

contention that the statute is overbroad because it

perhibits interstate transportation of obscene material

solely personal use in violation of the First and

inth Amendments to the Constitution,

The district judge dismissed the indictment on Octo-

4 28, 1970. Relying primarily on this Court’s deci-

sions in Redrup v. New York, 386 U.S, 767, and Stanley

YGeorgia, 394 U.S. 557, it concluded that the govern-

‘Inent’s interest in controlling distribution or possession

‘Of obs venity was limited to preventing “pandering

Bs! * or its exposure to children or to

Its” ‘(Appendix A, infra, p. 14). Since Section 1462

a

teaches beyond these situations to transportation for

private use, the court ruled that it is unconstitutional

on its. face ae The er or not éonsider the

seienter a |

Phin. senh:ie lanadiionsth g.aneleaiumniving the ques-

tion of the impact of Stanley v. Georgia, supra, on the

federal obscenity laws. See, e.g., United States v. Rei-

del, No. 534, this Term, bale jurisdiction noted,

October 12, 1970 (18 U.S.C. 1461) and United States

v. Thirty-seven (37) Photographs, No. 133, this Term,

probable jurisdiction noted, October 12, 1970 (19

U'S.C. 1305(a)). The decision below not only dimin-

ishes the authority of the United States to prohibit

the interstate transportation of obscene material by

common carrier but also casts doubt on various other

federal and state statutes regulating distribution of

obseene matter.

1. The views of the United States as to the impact

of Stanley v. Georgia, supra, are fully set forth in our

brief in Thirty-seven (37) Photographs, supra, and

in our Brief as amicus curiae in Byrne v. Karalezis,

pending on appeal, No. 83, this Term.’ In essence, it is

our position that Stanley held only that the govern-

ment lacks the power to punish or bar possession of

obscene material “in the privacy of a person’s own

home,” 394 U.S. 564. It does not establish, as the court

below concluded, an individual right to receive or dis-

tributé obscene matter, nor does it impair the validity

ee

?We are providing copies of these Briefs to counsel for

appellee.

‘of this Court's holding in Roth v, United. States, 354

‘US. 476, that obscene material is not entitled to any

First Amendment protection. Consequently, the deci-

sion does not affect the government’s power to control

distribution and possession of obscene material outside

the home—in this case, its interstate transportation by

‘gommon. carrier.’ !

_ 2. Even assuming that the government cannot pun-

ish transportation of obscenity for private use, we

believe it is indisputable that it validly may prohibit

interstate transportation of obseene material which is

intended for public distribution and use. That being

8, we contend that the district court erred in aecord-

ing standing to appellee to attack the statute on its

face as overly broad. It should, instead, have awaited a

factual determination of whether appellee intended pri-

vate use or public distribution of the materials and then

assessed the validity of the application of the statute to

the materials in question.‘

Our position on the question of standing to assert

invalidity of a statute on grounds of overbreadth is

set forth in our Brief in Thirty-Seven (37) Photo-

~ “Several lower federal courts have adopted essentially this in-

terpretation. See Miller v. United States, 481 F. 24 685 (C.A. 9),

No, 1014, this Term, petition for a writ of certiorari filed Novem-

er 27, 1970; United States v, Fragus, 428 F. 2d 1211 (C.A. 5);

United States v. Melvin, 419 F. 24 136 (C.A. 4) ; Gable v. Jenkins,

900 F. Supp. 998 (N.D. Ga:), affirmed, 397 U.S. 592.

‘With respect to obscenity statutes, this Court has

approved the approach of determining their validity as applied

than on their face. F.g., Ginzburg v. United States, 383

US. 463; Memoirs v. Massachusetts, 8838 U.S. 418; Redrup v.

New York, 386 U.S: 767; see Note, The First Amendment

Overbreadth Doctrine, 88 Hatv. L. Rev. 944, 884-887, 921-922

(1970).

Shai d

6

graphs, supra. Basically, we contend that a’ statute

must have elements of vagueness, as well as over-

breadth, before an individual whose conduct could be

constitutionally ‘proscribed ‘under ‘a’ properly drawn

statute—here, a person who transports obscene ma-

terial for non-private purposes—has standing to chal-

lenge it on its face. Cf. Dombrowski v. Pfister, 380

U.S. 479, cesar RNR Y: mtaaiae massa 88,

96-98.

Tt is: watiadiale sind: the poubelend uncertainty as

to the valid reach of'a statute that justifies an expan-

sive attitude toward standing. But the statute here is

not vague. The distinction between intended private

and public use is clear, and, consequently, the two

Glasses to which the statute miay apply are distinct.

If application to a person who transports obscenity

for private purposes is indeed unconstitutional, this

defect in the statute can be cured, when such a person

raises the issue, by a restrictive interpretation or by

ex¢ising invalid portions of the statute. See Sedler,

Standing to Assert Constitutional Jus Tertit in the

Supreme Court, 71 Yale L.J. 599 (1962); Note, The

First. Amendment .Overbreadth Doctrine, 83 Harv.

L. Rev. 844, 907-910 (1970).

“The district court, then, acted prematurely in dis-

missing the indictment for it is entirely possible, de-

pending onthe facts, that the statute might. validly

apply to. to appellee under any interpretation.’

5 We note that appellee was convicted in the Central District

of California of a similar violation involving a bulk shipment

of obscenity where the proof clearly indicated that the ma-

terial was intended for public distribution. See No. 313, George

Joseph Orito v. United States, this Term, pending on petition for

a writ of certiorari.

7

CONCLUSION

_ The resolution of the issues in this case may be gov-

‘med by the decisions in Reidel, supra, and Thirty-

Seven (37) Photographs, supra. It is respectfully sub-

mitted that this Court should defer disposition of the

present appeal until after resolution of the appeals

in those cases. Depending upon the outcome of those

eases, the Court might find it appropriate either to note

probable jurisdiction herein or to dispose of the instant

case summarily.

| Erwin N. Griswo1p,

Solicitor General.

Wi Wison,

Assistant Attorney General.

Roger A. PavLey,

Rosert E. Linpsay,

, Attorneys.

January 1971.

APPENDIX A

‘Untrep States Disraior Court, Eastern Disraior

3 OF WISCONSIN

No. 70-CR~20

Unrrep States or AMERICA, PLAINTIFF,

v,

George JOSEPH ORITO, DEFENDANT

Decision and Order

~ Pwo motions to dismiss the indi¢tment are now be-

fore the court. In both motions, the defendant con-

tends that 18 U.S.C. § 1462 is unconstitutional. One

motion is based on the absence of any provision in the

statute requiring proof of scienter; the other is based

on the defendant’s contention that the statue is over-

broad and violates the first and ninth amendments in

imposing criminal sanctions for the interstate trans-

portation of obseene material which may be designed

for personal use.

The defendant was charged in a one-count indict-

ment which alleges that he knowingly transported in

interstate commerce, by means of a common carrier,

ertain “‘copies of obscene, lewd, lascivious, and filthy

materials’’.

~The court must decide whether Stanley v. Georgia,

394 U.S. 537 (1969) and Redrup v. New York, 386

U8. 767 (1967) render $1462 unconstitutional be-

cause such section proscribes all transportation of ob-

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10

scene materials without discriminating as to whether

such materials are ‘‘pandered’’, exposed to children or

imposed on unwilling adults. __

The defendant urges that under Stanley the trans-

portation and receipt of obscene matter for private use

is_constitutionally, protected, and that only certain

types Pe destribution 0 pe emt matter, as de-

seribed in Redrup, may be subjected to governmental

control. The United States,/on the other hand, urges

that Stanley did not purport to modify Roth v, United

States, 354 U.S. 476 (1957) and that, on its limited

facts, Stanley permits an individual to possess obscene

materials.in his own home, but it does not grant one

a protected right to transport or receive such ma-

terials. | ; co eS COD Yo oe oe aw

In. its per curiam) opinion in Redrup.v. New York,

386, U.S..767. (1967), the court: observed. that in none

of. the. cases. which. were then before the; court “.. .

was there. any suggestion of an assault upon individ-

ual privacy by publication in a manner, so. obtrusive

as.to make it impossible for an,unwilling individual

to avoid exposure to it.” (p. 769). ;

_. 'IT-wo courts of appeal have decided cases which tend

to. support the government’s position. In. United

States v. Melvin, 419 F. 2d 136 (4th Cir. 1969), the

court, concluded. that. notwithstanding Stanley, ‘‘Con-

gress has. the power to forbid interstate transporta-

tion .of obscenity.” \(p. 139). Also, in, United. States

v. Fragus, 428 F.2d 1211 (5th Cir. 1970), the court

rejected a proposed expansion of Stanley. -

_ A three-judge.court convened in the northern dis-

trict of. Georgia. decided: ‘‘to keep) Stanley limited

to its faets”.. Gable v.' Jenkins, 309 F.: Supp. 998,

1000. (N.D,. Ga. 1969)... This..case. was. swmmarily

affirmed at 397 U.S. 592 (1970).

11

~ ‘There are a number of cases in which the rationale

of Stanley has been construed more broadly than the

in Stein v. Batchelor, 300 F. Supp. 602 (N.D. Tex.

1969), probable jurisdiction noted sub nom., Dyson

vy. Stein, 396 U.S. 954 (1969), restored. to calendar

for ‘reargument, 399 U.S. 922. (1970), a three-judge

court asserted that it was “impossible’’ for the court

to ignore the broader implications of the opinion

rn res nissan ae ewes Seay the

proposition stated in Roth v. United States .

The court went on to say (p. 606) : 2

rt ‘Stanley expressly holds that obscenity i is pro-

_ tected in the context of mere private possession

_ . and in our opinion further suggests that obseen-

ity is deprived of this protection only in the

_. .context.of “public action taken or intended to

be taken with respect to obscene matter’’.

_ The court in Stein concluded that the Texas obscen-

ity statute “as a whole is overbroad in that it fails to

confine its application to a context of public or com-

mercial dissemination.”’ (p. 607).

_ Another court which considered the impact of Stan-

ley is Karalezis v. Byrne, 306 F. Supp. 1363 (D. Mass.)

(1969), probable jurisdiction noted, 397. U.S. 985

teh restored to calendar for reargument 399 U.S.

922 (1970). In that case, a three-judge district court

reviewed an obscenity statute which prohibited im-

porting, printing, distributing or. possessing obscene

matter. The court expressed its conclusion “that pub-

lic distribution differed from private consumption’’

and that this distinction also applied to transporta-

tion. The court said, at p.°1366:

. We think it probable that Roth remains in-

tact only with res to public distribution in

the full sense, and that restricted distribution,

12

adequately controlled, is no longer to be con-

demned.

Another recent decision in which the court dismissed

counts charging the transportation of obscene material

is United States v. Lethe, 312 F. Supp. 421 (E.D. Cal.

1970). There the court pointed to the absence of any

legitimate governmental interest to justify regulation,

power ernie rag 8 cer

The S e Court has the protec-

tion of and the prtnetlan 6 an unwilling

pubis from abinusiee i invasions of privacy as

i Ta governmental interest justifying obscen-

ws. But neither of agg pl ald be

atings a reque

There is no Pig ng puble display, ‘anil oliilaeed pre not

involved. No valid governmental interest re-

and the conclusion is ineseapable that the

government cannot constitutionally bring such

& prosecution.

Another case in which a three-judge district court

determined the breadth of Stanley is United States v.

Thirty-Seven (37) Photographs, 309 F. Supp. 36 (C.D.

Calif. 1970). The United States Supreme Court has re-

cently accepted this case for review, See 39 L.W. 3131,

In Thirty-Seven (37) Photographs, the court invali-

dated 18 U.S.C. § 1305, stating (p. 37) :

It prohibits an adult from ROE HAE an obscene

book or picture for private reading or Piewing,

an an activity which is constitutionally protec

Stanley, the right to read necessar-

Fa protects the right to receive.

In Lethe, cited above, the court discussed the rela-

tionship of ‘the right to possess and the right to receive

in these terms (p. 424):

_. If the government has no substantial interest

in preventing a citizen from reading books and

13

.- watehing films in the privacy of his home, then

©. ¢learly it can have no greater interest in pre-

». venting him from acquiring them.

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

the court noted that since married couples have the

right to use contraceptive devices, such right would be

-Mheaningless if a state could lawfully block such per-

sons from receiving contraceptive devices and instruc-

tion. By analogy, it follows:that with the right to read

obscene matters comes the right to transport or to re-

tive such material when done in a fashion that does

not pander it or impose it upon unwilling adults or

_ Although this opinion has concerned itself primarily

with Stanley and Redrup and the cases subsequent

thereto which have attempted to apply those deci-

sions, there are a number of other decisions which

adopt an obtrusiveness approach. For example, as

far back as the year 1948, in Winters v. New York,

-833.-U-8. 507, 515 (1948), the court spoke of ‘gross

and open indecency or obscenity’. The pandering

theory, adopted in Ginzburg v. United States, 383

U.S. 463 (1966), would appear to be bottomed on the

concept that brazen and publie promotion of prurient

material deprives it of its first amendment protec-

tion. In a dissenting opinion in Ginzburg, Justice

Stewart spoke of (p. 498, Note 1):

- +. an assault upon individual privacy

publication in a manner so blatant or obtru-

sive as to make it difficult or impossible for an

unwilling individual to avoid exposure to it.

__ I am unable to accept the narrow interpretation of

Stanley which the government would ascribe to it. I

find more reasonable and impressive the analysis and

Interpretation adopted by the courts in Stein v.

14

Batchelor, Karalezis v; Byrne, United States v. Lethe,

and United States v. Thirty-Seven (87) Photographs.

I find no meaningful distinction between the private

possession ‘which was held to. be protected. in Stanley

and the non-public transportation: which the statute

at bar proseribes.

To prevent the ‘pandering of obscene materials or

its exposure to children or to unwilling adults, the

government has a substantial and valid interest to

bar the non-private transportation of such materials.

However, the statute which is now before. the court

does not so delimit the government’s prerogatives:

on its face, it forbids the transportation:.of obscene

materials. Thus, it applies to non-public transporta-

tion im the absence of a special governmental interest.

The statute is thus.overbroad, in violation of the first

and ninth amendments, and is therefore mneonstiti

Ii 3 view of the eotirt! s conclusion as stated above,

the question whether scienter is an essential element

of the offense need not be determined by the court.

Now, therefore, IT IS ORDERED that the defend-

ant’s motion to dismiss the indictment on the ground

that 18 U.S.C. § 1462 is unconstitutional for its viola-

tion of the first and ninth amendments of the United

States Constitution be and hereby is granted.

Dated at Milwaukee, Wisconsin, this 28th day of

October, 1970.

Myron L, Gorpon,

United States District Judge.

APPENDIX B

‘Usm States Disrrictr Court Eastern District or

WISCONSIN

Case No. 710-OR-20

Untrep States or AMERICA, PLAINTIFF .

v8. apn

Grorce JosEPH OnITO, DEFENDANT.

Notice of Appeal

sce IS HEREBY GIVEN that the Plaintiff, United

“States of Ain hereby appeals to the’ | Supreme

Court of the United States pursuant to Section 3731,

‘Title 18, United States Code, from the order of the

District Court dismissing the instant Indictment on

the ground that 18 U.S.C. 1462 is unconstitutional for

its violation of the First and Ninth Amendments of

the United States Constitution.

Dated at Milwaukee, Wisconsin, this 29th day of

October, 1970.

/s/ Dav J, Cannon,

United States Attorney.

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U.S. GOVERNMENT PRINTING OFFICE: 1971