# Jurisdictional Statement — United States v. Orito > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0180%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1972 - **Citation:** 408 U.S. 919 ## Text Ae Ta ee J. Db Pyar ere) MIO ie onpepaas: tf : G5 Of ‘ hy y | Gost Toutes? Oalno 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- (9) 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. (15) U.S. GOVERNMENT PRINTING OFFICE: 1971 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0180%3A2. Public record. Not legal advice.