United States v. 12 200-ft. Reels of Film
Encyclopedia
United States v. 12 200-ft. Reels of Film, , is an in rem case decided by the Supreme Court in 1973. It considered the question of whether the First Amendment
required that citizens be allowed to import obscene material for their personal and private use at home, already held to be protected several years earlier. By a 5–4 margin the Court held that it did not.
The case was very similar to United States v. Thirty-seven Photographs
, a case the Court had heard two years earlier. It began when the films, and other visual and textual material with predominant explicit sexual content, were seized by customs agents from Paladini, a California man returning from Mexico. Federal law at the time prohibited the import of any material that might be judged to obscene. Paladini challenged the forfeiture
proceedings the government initiated, on the grounds that he intended the material for his personal use in the privacy of his own home, an activity the Court had ruled was protected under the First Amendment in Stanley v. Georgia
. Thus, he argued, he had a right to obtain such material abroad for that purpose.
After a district court panel agreed with him and declared the statute unconstitutional, the case went to the Supreme Court directly. Its opinion was one of four obscenity cases handed down along with Miller v. California
, in which the Court announced a new standard of obscenity for the first time since Roth v. United States
17 years before. By a 5–4 margin the Court held that the statute was constitutional but ordered the district court to review the material under its new standard
and consider whether it was still obscene.
Chief Justice Warren Burger wrote for the majority
, reaffirming a similar holding in Thirty-seven Photographs that the right to possess something in one's home which might otherwise be unlawful outside of it did not give rise to a right to import it. William O. Douglas
wrote a lengthy dissent, responding as much to the majority holding in Miller, arguing that history showed obscenity laws were not vigorously enforced at the time the Bill of Rights
was adopted and thus could not be justified on traditionalist grounds. William Brennan wrote a shorter dissent, joined by the other two justices, calling the statute overbroad.
's guarantees of free speech and free expression barred them.
That began to change during the 20th century, in response to social and cultural trends of greater tolerance for literature and art that depicted such proscribed material. In the landmark 1933 case United States v. One Book Called Ulysses
, Judge John M. Woolsey
of the Southern District of New York
ruled that James Joyce
's novel Ulysses
, chapters of which had been held obscene over a decade earlier when published in a literary review, could not be barred from the United States purely on the basis of its language and content without considering its literary merit. Second Circuit
judges Learned
and Augustus Hand
upheld Woolsey on appeal, and the book, considered a masterpiece of modernist literature
, could be freely published and sold.
Censorship
battles continued in the next decades over other works of literature and art, such as Lady Chatterley's Lover, expanding to include films. In 1957 the Supreme Court finally considered a case arising from an obscenity prosecution, Roth v. United States
. William Brennan
wrote for a 6–3 majority that upheld the criminal conviction but abandoned the century-old Hicklin test in favor of a narrower definition of obscenity. It did not settle the issue, however, and the Warren Court
had to hear more cases arising from subsequent prosecutions in the next decade, during which the Sexual Revolution
began a more direct challenge to social mores on the issue.
In some of those cases, like Memoirs v. Massachusetts, the justices realized their Roth standard was inadequate but could not agree on a new one. The search for a workable legal definition of obscenity led to Potter Stewart
's famous line "I know it when I see it
", in Jacobellis v. Ohio
. Other Court decisions restricted the scope under which obscenity could be suppressed. Freedman v. Maryland
held that local film boards could not ban films, effectively eliminating them, and had to approve a film within a specified time. In Stanley v. Georgia
the Court held that possession of obscene material in the privacy of the home was constitutionally protected as well.
, like its companion case United States v. Reidel, was a Stanley-inspired challenge to the laws against the distribution of obscenity. In October 1969, Milton Luros, an adult-magazine publisher from Southern California, had challenged the seizure of the photographs, depicting naked heterosexual couples in various sexual positions, on his return to Los Angeles from Europe. He claimed he later planned to use them to illustrate a copy of the Kama Sutra
.
In addition to arguing that Stanley gave him the right to import such material, Luros also challenged the procedures of the case under the Fifth Amendment
, pointing out that the statute, Section 1305 of Title 18 of the United States Code, did not give a time frame within which the government had to begin forfeiture
proceedings against the seized material and did not even require the government move in a timely fashion. A panel of two judges from the Central District of California
and one judge from the Ninth Circuit Court of Appeals
disagreed with him on the Stanley claim but found the lack of a time limit alone enough to hold Section 1305 unconstitutional.
The statute provided for direct appeal to the Supreme Court, which heard the case in 1971. By a 6–3 margin it reversed the district court panel. "[A] port of entry
is not a traveler's home," Justice Byron White
wrote for the majority. "His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search." He found the Stanley argument less applicable since Luros had admitted to the intent of commercial use.
However, White agreed that without a time limit for when forfeiture proceedings had to begin, Section 1305 was an unconstitutional violation of due-process rights. Since Court doctrine holds that if it is possible to construe a statute in a way that avoids the constitutional question, it should be done, White construed 1305 to require a 14-day maximum from initial seizure to forfeiture filing. In separate concurrences
, John Marshall Harlan II
defended the statute against Luros's claim it was overbroad
and Potter Stewart
indicated his disagreement with the majority holding that Stanley did not extend to importing obscene material.
In dissent
, Hugo Black
, joined by William O. Douglas
, reiterated his opposition to legally enforceable obscenity, and attacked the majority both for usurping the legislative prerogative of imposing a time limit where there had been none and not extending Stanley: "The right to read and view any literature and pictures at home is hollow indeed if it does not include a right to carry that material privately in one's luggage when entering the country.a" Thurgood Marshall
's dissent was at Reidel, where he felt that since Luros had those pictures in his private personal possession when he cleared customs, Stanley was applicable.
after a trip to Mexico in April 1970. Customs agents inspecting his belongings discovered "movie films, color slides, photographs, and other printed and graphic material" of a possibly obscene nature, and confiscated them, without charging Paladini. He claimed they were for his own personal use, and challenged the asset forfeiture
proceedings as Luros had before him. Since he had not been criminally charged, the case was an in rem civil forfeiture
action, with the reels of film and other items named as defendants.
Unlike Luros, he alleged no procedural defect in Section 1305. Instead he argued the entire statute was unconstitutional, since Stanley v. Georgia
had held that the First Amendment protected the right to possess, read and view obscene material in the home, and that allowed him to import such material for that use. The district court panel agreed, citing Thirty-seven Photographs, and struck down the statute. Again, the government appealed directly to the Supreme Court.
and agreed to hear the case. Before the beginning of the October 1972 term, Justices Hugo Black
and John Marshall Harlan II
retired, their deaths imminent. President Richard Nixon
appointed William Rehnquist
and Lewis Powell to replace them. Oral argument
in Reels of Film was held in January, with no decision for the rest of the term since the Court had agreed to take some other obscenity cases. Arguments were reheard in November 1972.
Thomas Kuchel
, recently defeated in his re-election bid for his U.S. Senate seat from California, argued the case for the claimant at rehearing, by invitation of the Court. Solicitor General
Erwin Griswold
argued the case for the government. Amicus curiae
briefs
were filed by the American Civil Liberties Union
and First Amendment Lawyers Association in support.
, it succeeded where it had failed seven years earlier in Memoirs v. Massachusetts, producing a new standard
for obscenity that superseded the 1957 Roth v. United States
holding. Miller impacted all the cases decided that day.
As he had in Miller, Chief Justice Warren Burger wrote for a five-justice majority in Reels of Film. He reaffirmed the Thirty-seven Photographs holding on the import ban, finding no distinction for private use, and noting how holding it a protected activity could create a loophole that would make other laws intended to suppress the domestic distribution of obscenity ineffectual. However, in this case the majority ordered the case remanded to district court to determine whether Paladini's materials were obscene under Miller, which called for "contemporary community standards" to be applied, rather than a national standard.
William O. Douglas
wrote a lengthy dissent
, responding in part to the Miller majority. At length, citing from histories of the era, he argued that at the time of the country's founding writers like Benjamin Franklin
and John Cleland
had enjoyed far greater freedom to write about sexual topics than even current law now allowed. The rights granted by Stanley were useless, he said, if one could not freely obtain the materials to read or view in the home. In a separate dissent, William Brennan said Section 1305 was overbroad
and unconstitutional.
and the Fourth Amendment
rather than free speech and the First.
Courts should avoid granting inferential, incremental steps like these, Burger cautioned, in one of the most frequently quoted sections of the case:
It did not matter that, unlike the claimant in Thirty-seven Photographs, Paladini insisted the materials were for private personal use. "To allow such a claim would be not unlike compelling the Government to permit importation of prohibited or controlled drugs for private consumption as long as such drugs are not for public distribution or sale." In one of the other cases, United States v. Orito, the Court had upheld federal law prohibiting obscenity from being sent through domestic cargo shippers, paralleling its decision of two years earlier in Thirty-seven Photographs' s companion case United States v. Reidel, which affirmed the prohibition on sending obscenity through the mail. Congress could, Burger admitted, allow the transmission and import of such materials with appropriate security measures to prevent unwilling recipients or children from being exposed to them, two legitimate state interests Stanley had recognized. But it had not.
Having dealt with the major issue, Burger added an afterthought an observation "that it is extremely difficult to control the uses to which obscene material is put once it enters this country" since it was by then technologically possible to make many copies very quickly and cheaply of a single original. But, "[w]hile it is true that a large volume of obscene material on microfilm could rather easily be smuggled into the United States by mail, or otherwise, and could be enlarged or reproduced for commercial purposes, Congress is not precluded from barring some avenues of illegal importation because avenues exist that are more difficult to regulate."
He responded to the Miller majority's argument that the First Amendment necessarily incorporated the common-law strictures on obscenity that existed at that time. James Madison
, in drafting the Bill of Rights
, intended for them to apply strictly to the federal government.After the Fourteenth Amendment
was adopted following the Civil War
, the Bill of Rights was held to apply to the states as well. "Tying censorship to the movement of literature or films in interstate commerce or into foreign commerce would have been an easy way for a government of delegated powers to impair the liberty of expression. It was to bar such suppression that we have the First Amendment. I daresay Jefferson and Madison would be appalled at what the Court espouses today."
Histories of the era, Douglas wrote, show that at the time of the Constitution's adoption many sexually frank works such as Fanny Hill
circulated widely, with little censorship or prosecution." In Bridges v. California, a 1941 decision overturning the contempt conviction of a labor leader for publishing a telegram from a state official, the Court had itself quoted Madison to the effect that the Revolution
specifically intended to replace English common law on freedom of speech and the press, since the Magna Carta
said nothing about them And the Court's own recent efforts to define obscenity "have not been productive of meaningful standards ... The reason is not the inability or mediocrity of judges".
"[I]t is ironic to me," Douglas concluded, "that, in this Nation, many pages must be written and many hours spent to explain why a person who can read whatever he desires ... may not without violating a law carry that literature in his briefcase or bring it home from abroad. Unless there is that ancillary right, one's Stanley rights could be realized, as has been suggested, only if one wrote or designed a tract in his attic and printed or processed it in his basement, so as to be able to read it in his study."Douglas was referring to Black's suggestion as such in his Thirty-seven Photographs dissent, 402 U.S. at 382.
Brennan's short dissent reflected the change in his thinking about obscenity. It alluded to his dissent in another of the companion cases, Paris Adult Theatre I v. Slaton
, in which he said he no longer believed it was reasonably possible for judges to define obscenity, even narrowly. For that reason he considered any statute that attempted to do so, or suppressed obscenity based on that definition, as overbroad
and unconstitutional on its face.
, the production and distribution of which Congress banned with the Child Protection Act of 1978. Four years later, the Court held that obscene material depicting actual children was not protected speech in New York v. Ferber
in 1982.
Until that statute was further revised in 1984, possession of child pornography was still legal.The Court upheld possession bans in Osborne v. Ohio
, . An Oregon man appealed his 1983 conviction for receiving sexually explicit films with underage teenagers in the mail from Sweden asked the Ninth Circuit
to reject the Reels of Film holding. It instead relied on it in upholding the conviction, telling the appellee to take it up with the Supreme Court.
Justice Antonin Scalia
, who replaced Burger in 1986, has twice approvingly quoted the chief justice's warning in Reels of Film about the dangers of incremental
judicial expansion of a statutory construction. In NLRB v. Electrical Workers, upholding union disciplinary action against members who had worked for a nonunion employer, decided in Scalia's first term, he cited Burger in his concurrence
explaining his textualist
approach to jurisprudence, calling it "nowhere more applicable". Almost two decades later, dissenting in Tennessee v. Lane
, he repeated the entire passage again.
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
required that citizens be allowed to import obscene material for their personal and private use at home, already held to be protected several years earlier. By a 5–4 margin the Court held that it did not.
The case was very similar to United States v. Thirty-seven Photographs
United States v. Thirty-seven Photographs
United States v. Thirty-seven Photographs, , is a 1971 United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material...
, a case the Court had heard two years earlier. It began when the films, and other visual and textual material with predominant explicit sexual content, were seized by customs agents from Paladini, a California man returning from Mexico. Federal law at the time prohibited the import of any material that might be judged to obscene. Paladini challenged the forfeiture
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
proceedings the government initiated, on the grounds that he intended the material for his personal use in the privacy of his own home, an activity the Court had ruled was protected under the First Amendment in Stanley v. Georgia
Stanley v. Georgia
Stanley v. Georgia, , was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law.The Georgia home of Robert Eli Stanley, a suspected and previously convicted bookmaker, was searched by police with a federal warrant to seize betting paraphernalia...
. Thus, he argued, he had a right to obtain such material abroad for that purpose.
After a district court panel agreed with him and declared the statute unconstitutional, the case went to the Supreme Court directly. Its opinion was one of four obscenity cases handed down along with Miller v. California
Miller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
, in which the Court announced a new standard of obscenity for the first time since Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
17 years before. By a 5–4 margin the Court held that the statute was constitutional but ordered the district court to review the material under its new standard
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
and consider whether it was still obscene.
Chief Justice Warren Burger wrote for the majority
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
, reaffirming a similar holding in Thirty-seven Photographs that the right to possess something in one's home which might otherwise be unlawful outside of it did not give rise to a right to import it. William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
wrote a lengthy dissent, responding as much to the majority holding in Miller, arguing that history showed obscenity laws were not vigorously enforced at the time the Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
was adopted and thus could not be justified on traditionalist grounds. William Brennan wrote a shorter dissent, joined by the other two justices, calling the statute overbroad.
Background of the case
For most of American history, literary and artistic works depicting or even alluding to sexual acts and topics, or using profane language, had been banned from publication or distribution, often by both confiscation of the works themselves and criminal prosecution of all individuals involved, following the traditions of English common law on obscenity and statutes at the state and federal levels. At the same time demand for such materials continued and the laws were often widely flouted. No defendant or claimant in such an action had ever persuaded a court to entertain the argument that the First AmendmentFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
's guarantees of free speech and free expression barred them.
That began to change during the 20th century, in response to social and cultural trends of greater tolerance for literature and art that depicted such proscribed material. In the landmark 1933 case United States v. One Book Called Ulysses
United States v. One Book Called Ulysses
United States v. One Book Called Ulysses was a 1933 case in the United States District Court for the Southern District of New York dealing with freedom of expression. At issue was whether James Joyce's novel Ulysses was obscene. In deciding it was not, Judge John M...
, Judge John M. Woolsey
John M. Woolsey
John Munro Woolsey was a United States federal judge in New York City.Born in Aiken, South Carolina, Woolsey attended Phillips Academy, and received an A.B. from Yale University in 1898. He was awarded an LL.B. from Columbia Law School in 1901, where he was a founder of the Columbia Law Review...
of the Southern District of New York
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
ruled that James Joyce
James Joyce
James Augustine Aloysius Joyce was an Irish novelist and poet, considered to be one of the most influential writers in the modernist avant-garde of the early 20th century...
's novel Ulysses
Ulysses (novel)
Ulysses is a novel by the Irish author James Joyce. It was first serialised in parts in the American journal The Little Review from March 1918 to December 1920, and then published in its entirety by Sylvia Beach on 2 February 1922, in Paris. One of the most important works of Modernist literature,...
, chapters of which had been held obscene over a decade earlier when published in a literary review, could not be barred from the United States purely on the basis of its language and content without considering its literary merit. Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
judges Learned
Learned Hand
Billings Learned Hand was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit...
and Augustus Hand
Augustus Noble Hand
Augustus Noble Hand was an American judge who served on the United States District Court for the Southern District of New York and later on the United States Court of Appeals for the Second Circuit. His most notable rulings restricted the reach of obscenity statutes in the areas of literature and...
upheld Woolsey on appeal, and the book, considered a masterpiece of modernist literature
Modernist literature
Modernist literature is sub-genre of Modernism, a predominantly European movement beginning in the early 20th century that was characterized by a self-conscious break with traditional aesthetic forms...
, could be freely published and sold.
Censorship
Censorship in the United States
In general, censorship in the United States, which involves the suppression of speech or other public communication, raises issues of freedom of speech, which is constitutionally protected by the First Amendment to the United States Constitution....
battles continued in the next decades over other works of literature and art, such as Lady Chatterley's Lover, expanding to include films. In 1957 the Supreme Court finally considered a case arising from an obscenity prosecution, Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
. William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
wrote for a 6–3 majority that upheld the criminal conviction but abandoned the century-old Hicklin test in favor of a narrower definition of obscenity. It did not settle the issue, however, and the Warren Court
Warren Court
The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents...
had to hear more cases arising from subsequent prosecutions in the next decade, during which the Sexual Revolution
Sexual revolution
The sexual revolution was a social movement that challenged traditional codes of behavior related to sexuality and interpersonal relationships throughout the Western world from the 1960s into the 1980s...
began a more direct challenge to social mores on the issue.
In some of those cases, like Memoirs v. Massachusetts, the justices realized their Roth standard was inadequate but could not agree on a new one. The search for a workable legal definition of obscenity led to Potter Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
's famous line "I know it when I see it
I know it when I see it
The phrase "I know it when I see it" is a colloquial expression within the United States by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. The phrase was famously used by United States Supreme Court...
", in Jacobellis v. Ohio
Jacobellis v. Ohio
Jacobellis v. Ohio, , was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of a French film called The Lovers which the state had deemed obscene.Nico Jacobellis, manager of the Heights Art...
. Other Court decisions restricted the scope under which obscenity could be suppressed. Freedman v. Maryland
Freedman v. Maryland
Freedman v. Maryland, , is a United States Supreme Court case that ended government-operated rating boards with a decision that a rating board could only approve a film and had no power to ban a film. The ruling also concluded that a rating board must either approve a film within a reasonable time,...
held that local film boards could not ban films, effectively eliminating them, and had to approve a film within a specified time. In Stanley v. Georgia
Stanley v. Georgia
Stanley v. Georgia, , was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law.The Georgia home of Robert Eli Stanley, a suspected and previously convicted bookmaker, was searched by police with a federal warrant to seize betting paraphernalia...
the Court held that possession of obscene material in the privacy of the home was constitutionally protected as well.
United States v. Thirty-seven Photographs
United States v. Thirty-seven PhotographsUnited States v. Thirty-seven Photographs
United States v. Thirty-seven Photographs, , is a 1971 United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material...
, like its companion case United States v. Reidel, was a Stanley-inspired challenge to the laws against the distribution of obscenity. In October 1969, Milton Luros, an adult-magazine publisher from Southern California, had challenged the seizure of the photographs, depicting naked heterosexual couples in various sexual positions, on his return to Los Angeles from Europe. He claimed he later planned to use them to illustrate a copy of the Kama Sutra
Kama Sutra
The Kama Sutra is an ancient Indian Hindu text widely considered to be the standard work on human sexual behavior in Sanskrit literature written by Vātsyāyana. A portion of the work consists of practical advice on sexual intercourse. It is largely in prose, with many inserted anustubh poetry verses...
.
In addition to arguing that Stanley gave him the right to import such material, Luros also challenged the procedures of the case under the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, pointing out that the statute, Section 1305 of Title 18 of the United States Code, did not give a time frame within which the government had to begin forfeiture
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
proceedings against the seized material and did not even require the government move in a timely fashion. A panel of two judges from the Central District of California
United States District Court for the Central District of California
The United States District Court for the Central District of California serves over 18 million people in southern and central California, making it the largest federal judicial district by population...
and one judge from the Ninth Circuit Court of Appeals
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
disagreed with him on the Stanley claim but found the lack of a time limit alone enough to hold Section 1305 unconstitutional.
The statute provided for direct appeal to the Supreme Court, which heard the case in 1971. By a 6–3 margin it reversed the district court panel. "[A] port of entry
Port of entry
In general, a port of entry is a place where one may lawfully enter a country. It typically has a staff of people who check passports and visas and inspect luggage to assure that contraband is not imported. International airports are usually ports of entry, as are road and rail crossings on a...
is not a traveler's home," Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
wrote for the majority. "His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search." He found the Stanley argument less applicable since Luros had admitted to the intent of commercial use.
However, White agreed that without a time limit for when forfeiture proceedings had to begin, Section 1305 was an unconstitutional violation of due-process rights. Since Court doctrine holds that if it is possible to construe a statute in a way that avoids the constitutional question, it should be done, White construed 1305 to require a 14-day maximum from initial seizure to forfeiture filing. In separate concurrences
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
, John Marshall Harlan II
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
defended the statute against Luros's claim it was overbroad
Overbreadth doctrine
In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment. American courts have recognized several exceptions to the speech protected by the First Amendment , and states therefore have some latitude to regulate unprotected...
and Potter Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
indicated his disagreement with the majority holding that Stanley did not extend to importing obscene material.
In dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
, Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
, joined by William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
, reiterated his opposition to legally enforceable obscenity, and attacked the majority both for usurping the legislative prerogative of imposing a time limit where there had been none and not extending Stanley: "The right to read and view any literature and pictures at home is hollow indeed if it does not include a right to carry that material privately in one's luggage when entering the country.a" Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
's dissent was at Reidel, where he felt that since Luros had those pictures in his private personal possession when he cleared customs, Stanley was applicable.
Underlying dispute
Paladini returned to Los Angeles International AirportLos Angeles International Airport
Los Angeles International Airport is the primary airport serving the Greater Los Angeles Area, the second-most populated metropolitan area in the United States. It is most often referred to by its IATA airport code LAX, with the letters pronounced individually...
after a trip to Mexico in April 1970. Customs agents inspecting his belongings discovered "movie films, color slides, photographs, and other printed and graphic material" of a possibly obscene nature, and confiscated them, without charging Paladini. He claimed they were for his own personal use, and challenged the asset forfeiture
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
proceedings as Luros had before him. Since he had not been criminally charged, the case was an in rem civil forfeiture
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
action, with the reels of film and other items named as defendants.
Unlike Luros, he alleged no procedural defect in Section 1305. Instead he argued the entire statute was unconstitutional, since Stanley v. Georgia
Stanley v. Georgia
Stanley v. Georgia, , was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law.The Georgia home of Robert Eli Stanley, a suspected and previously convicted bookmaker, was searched by police with a federal warrant to seize betting paraphernalia...
had held that the First Amendment protected the right to possess, read and view obscene material in the home, and that allowed him to import such material for that use. The district court panel agreed, citing Thirty-seven Photographs, and struck down the statute. Again, the government appealed directly to the Supreme Court.
Before the Court
The Court, as it had in Thirty-seven Photographs, granted certiorariCertiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
and agreed to hear the case. Before the beginning of the October 1972 term, Justices Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
and John Marshall Harlan II
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
retired, their deaths imminent. President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
appointed William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
and Lewis Powell to replace them. Oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
in Reels of Film was held in January, with no decision for the rest of the term since the Court had agreed to take some other obscenity cases. Arguments were reheard in November 1972.
Thomas Kuchel
Thomas Kuchel
Thomas Henry Kuchel was a moderate Republican U.S. Senator from California. From 1959 to 1969 he was the minority whip in the Senate, where he was the co-manager on the floor for the Civil Rights Act of 1964 and the Voting Rights Act of 1965.-Biography:Kuchel was born in Anaheim in Orange County,...
, recently defeated in his re-election bid for his U.S. Senate seat from California, argued the case for the claimant at rehearing, by invitation of the Court. Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
Erwin Griswold
Erwin Griswold
Erwin Nathaniel Griswold was an appellate attorney who argued many cases before the U.S. Supreme Court. Griswold served as Solicitor General of the United States under Presidents Lyndon B. Johnson and Richard M. Nixon. He also served as Dean of Harvard Law School for 21 years. Several times he...
argued the case for the government. Amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
briefs
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
were filed by the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
and First Amendment Lawyers Association in support.
Decision
In June 1973, near the end of the term, the Court handed down its opinion in all five. In Miller v. CaliforniaMiller v. California
Miller v. California, was an important United States Supreme Court case involving what constitutes unprotected obscenity for First Amendment purposes...
, it succeeded where it had failed seven years earlier in Memoirs v. Massachusetts, producing a new standard
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
for obscenity that superseded the 1957 Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
holding. Miller impacted all the cases decided that day.
As he had in Miller, Chief Justice Warren Burger wrote for a five-justice majority in Reels of Film. He reaffirmed the Thirty-seven Photographs holding on the import ban, finding no distinction for private use, and noting how holding it a protected activity could create a loophole that would make other laws intended to suppress the domestic distribution of obscenity ineffectual. However, in this case the majority ordered the case remanded to district court to determine whether Paladini's materials were obscene under Miller, which called for "contemporary community standards" to be applied, rather than a national standard.
William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
wrote a lengthy dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
, responding in part to the Miller majority. At length, citing from histories of the era, he argued that at the time of the country's founding writers like Benjamin Franklin
Benjamin Franklin
Dr. Benjamin Franklin was one of the Founding Fathers of the United States. A noted polymath, Franklin was a leading author, printer, political theorist, politician, postmaster, scientist, musician, inventor, satirist, civic activist, statesman, and diplomat...
and John Cleland
John Cleland
John Cleland was an English novelist most famous and infamous as the author of Fanny Hill: or, the Memoirs of a Woman of Pleasure....
had enjoyed far greater freedom to write about sexual topics than even current law now allowed. The rights granted by Stanley were useless, he said, if one could not freely obtain the materials to read or view in the home. In a separate dissent, William Brennan said Section 1305 was overbroad
Overbreadth doctrine
In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment. American courts have recognized several exceptions to the speech protected by the First Amendment , and states therefore have some latitude to regulate unprotected...
and unconstitutional.
Majority
Burger recounted the facts of the case, and then turned to the Stanley argument. "But it is now well established that obscene material is not protected by the First Amendment", he wrote, referring to the Court's other holdings that day. Stanley he continued, was fundamentally a case about privacyPrivacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
and the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
rather than free speech and the First.
Courts should avoid granting inferential, incremental steps like these, Burger cautioned, in one of the most frequently quoted sections of the case:
It did not matter that, unlike the claimant in Thirty-seven Photographs, Paladini insisted the materials were for private personal use. "To allow such a claim would be not unlike compelling the Government to permit importation of prohibited or controlled drugs for private consumption as long as such drugs are not for public distribution or sale." In one of the other cases, United States v. Orito, the Court had upheld federal law prohibiting obscenity from being sent through domestic cargo shippers, paralleling its decision of two years earlier in Thirty-seven Photographs
Having dealt with the major issue, Burger added an afterthought an observation "that it is extremely difficult to control the uses to which obscene material is put once it enters this country" since it was by then technologically possible to make many copies very quickly and cheaply of a single original. But, "[w]hile it is true that a large volume of obscene material on microfilm could rather easily be smuggled into the United States by mail, or otherwise, and could be enlarged or reproduced for commercial purposes, Congress is not precluded from barring some avenues of illegal importation because avenues exist that are more difficult to regulate."
Dissents
"I know of no constitutional way by which a book, tract, paper, postcard, or film may be made contraband because of its contents", Douglas began, reiterating the opposition to obscenity laws he had stated in many opinions over the preceding years. "The Constitution never purported to give the Federal Government censorship or oversight over literature or artistic productions, save as they might be governed by the Patent and Copyright Clause ..."He responded to the Miller majority's argument that the First Amendment necessarily incorporated the common-law strictures on obscenity that existed at that time. James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
, in drafting the Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
, intended for them to apply strictly to the federal government.After the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
was adopted following the Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
, the Bill of Rights was held to apply to the states as well. "Tying censorship to the movement of literature or films in interstate commerce or into foreign commerce would have been an easy way for a government of delegated powers to impair the liberty of expression. It was to bar such suppression that we have the First Amendment. I daresay Jefferson and Madison would be appalled at what the Court espouses today."
Histories of the era, Douglas wrote, show that at the time of the Constitution's adoption many sexually frank works such as Fanny Hill
Fanny Hill
Memoirs of a Woman of Pleasure is an erotic novel by John Cleland first published in England in 1748...
circulated widely, with little censorship or prosecution." In Bridges v. California, a 1941 decision overturning the contempt conviction of a labor leader for publishing a telegram from a state official, the Court had itself quoted Madison to the effect that the Revolution
American Revolution
The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...
specifically intended to replace English common law on freedom of speech and the press, since the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
said nothing about them And the Court's own recent efforts to define obscenity "have not been productive of meaningful standards ... The reason is not the inability or mediocrity of judges".
"[I]t is ironic to me," Douglas concluded, "that, in this Nation, many pages must be written and many hours spent to explain why a person who can read whatever he desires ... may not without violating a law carry that literature in his briefcase or bring it home from abroad. Unless there is that ancillary right, one's Stanley rights could be realized, as has been suggested, only if one wrote or designed a tract in his attic and printed or processed it in his basement, so as to be able to read it in his study."Douglas was referring to Black's suggestion as such in his Thirty-seven Photographs dissent, 402 U.S. at 382.
Brennan's short dissent reflected the change in his thinking about obscenity. It alluded to his dissent in another of the companion cases, Paris Adult Theatre I v. Slaton
Paris Adult Theatre I v. Slaton
Paris Adult Theatre I v. Slaton, . The U.S. Supreme Court upheld a state court's injunction against the showing of obscene films in a movie theatre restricted to consenting adults. The Court distinguished the case from Stanley v. Georgia, 394 U.S...
, in which he said he no longer believed it was reasonably possible for judges to define obscenity, even narrowly. For that reason he considered any statute that attempted to do so, or suppressed obscenity based on that definition, as overbroad
Overbreadth doctrine
In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment. American courts have recognized several exceptions to the speech protected by the First Amendment , and states therefore have some latitude to regulate unprotected...
and unconstitutional on its face.
Subsequent jurisprudence
The Court's clear holding that the privately possess obscene material did not create the right to distribute it became part of its general body on the subject. In the wake of Miller, that has not had to be revisited, since general obscenity prosecutions declined, technology allowed more discreet methods of obtaining pornography and the Court has not had to reconsider its standard. Enforcement mostly turned to child pornographyChild pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
, the production and distribution of which Congress banned with the Child Protection Act of 1978. Four years later, the Court held that obscene material depicting actual children was not protected speech in New York v. Ferber
New York v. Ferber
New York v. Ferber, , was a United States Supreme Court decision. The Court ruled unanimously that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity....
in 1982.
Until that statute was further revised in 1984, possession of child pornography was still legal.The Court upheld possession bans in Osborne v. Ohio
Osborne v. Ohio
Osborne v. Ohio, , was a case in which the Supreme Court of the United States held that the First Amendment allows states to outlaw the mere possession, as distinct from the distribution, of child pornography. In so doing, the Court extended the holding of New York v...
, . An Oregon man appealed his 1983 conviction for receiving sexually explicit films with underage teenagers in the mail from Sweden asked the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
to reject the Reels of Film holding. It instead relied on it in upholding the conviction, telling the appellee to take it up with the Supreme Court.
Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, who replaced Burger in 1986, has twice approvingly quoted the chief justice's warning in Reels of Film about the dangers of incremental
Incrementalism
Incrementalism is a method of working by adding to a project using many small , incremental changes instead of a few large jumps. Wikipedia, for example, illustrates the concept by building an encyclopedia bit by bit, continually adding to it...
judicial expansion of a statutory construction. In NLRB v. Electrical Workers, upholding union disciplinary action against members who had worked for a nonunion employer, decided in Scalia's first term, he cited Burger in his concurrence
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
explaining his textualist
Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
approach to jurisprudence, calling it "nowhere more applicable". Almost two decades later, dissenting in Tennessee v. Lane
Tennessee v. Lane
Tennessee v. Lane, 541 U.S. 509 , was a case in the Supreme Court of the United States involving Congress's enforcement powers under section 5 of the Fourteenth Amendment....
, he repeated the entire passage again.
See also
- List of United States Supreme Court cases, volume 413
- List of United States Supreme Court cases by the Burger Court
- List of United States Supreme Court cases involving the First Amendment