United States v. Thirty-seven Photographs
Encyclopedia
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 6–3 court held that the federal statute governing the seizures was not in violation of the First Amendment
as long as the government began forfeiture proceedings within 14 days of the seizure.
The case began with the seizure of the photographs, depicting various sexual positions, from Milton Luros, a Southern California
publisher who was returning from Europe. He had intended to use them to illustrate a volume of the Kama Sutra
, or failing that, to keep them for his own personal use. A district court panel, guided by the Court's Freedman v. Maryland
decision of several years before, rejected his claims that the First Amendment allowed citizens to import obscene material, but found the statute unconstitutional due to the lack of time limits and ordered the Customs Service to return the images to Luros. The government appealed directly to the Supreme Court.
Justice Byron White
wrote for the majority
, distinguishing the case from Freedman v. Maryland
, which had also involved time limits, by noting that it was a federal statute rather than a state one and therefore the Court could give it an authoritative construction. John Marshall Harlan
and Potter Stewart
also wrote concurring opinion
s expanding on aspects of the majority holding. Stewart did not agree with the majority that the ban on personal importation of obscene material was consistent with Stanley v. Georgia
.
The dissenting
justices wrote two opinions. Hugo Black
and William O. Douglas
took issue with every aspect of the holding, believing the government had no power to regulate obscenity. Thurgood Marshall
agreed with them and Stewart that the blanket importation ban was constitutional. That issue would be reconsidered in a similar case two years later, United States v. 12 200-ft. Reels of Film
. The case would have little impact on the future development of obscenity law. It has, however, been cited as the first forfeiture case to deal with the question of time limits, and also reaffirmed a principle by which the Court avoids dealing with constitutional questions when it can through alternative constructions.
'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.
from a trip to Europe. Customs agents at Los Angeles International Airport
searched his luggage and found 37 photographs depicting naked heterosexual couples having sexual intercourse
in different positions. They confiscated
them pursuant to Title 18, Section 1305, of the United States Code
, a federal law passed in 1930 absolutely prohibiting the importation of any obscene material, but did not arrest Luros for attempting to violate it. He later revealed he had planned to use them to illustrate a copy of the Kama Sutra
, the classic Indian treatise on human sexuality
.
Two weeks later lawyers with the office of United States Attorney
William Matthew Byrne, Jr., filed for forfeiture
. A week later Luros filed a counterclaim
. He argued that the images were not obscene and claimed both the seizure and the statute authorizing it were unconstitutional. The seizure had violated his First Amendment
rights since the pictures were meant to be viewed by adults only within the privacy of their own homes, which the Supreme Court had recently held was protected activity in Stanley. As for the statute, not only was it too vague to be enforceable, it allowed seizures prior to an adversary hearing and did not require that the forfeiture action be commenced within a specified time period, both violating due process
requirements, Luros argued.
was seated along with Central District of California
judges Jesse William Curtis Jr.
and Warren John Ferguson
. They heard arguments from Luros's attorney Stanley Fleishman and the assistant U.S. attorneys representing Byrne's office and issued their decision in January 1970.
Ferguson wrote for the panel, which unanimously ruled for Luros. After rejecting the publisher's argument that Stanley absolutely covered the photographs, since he had admitted to planning a commercial use for them, the judge considered the other element of the First Amendment argument: the right of other adults to receive the book. While quoting from William Brennan
's concurrence
in Lamont v. Postmaster General
to demonstrate his agreement that it was a fundamental right, he nevertheless found it inapplicable to the case since ruling otherwise would have an economically disparate impact: "The First Amendment cannot be construed to permit those who have funds for foreign travel to bring back constitutionally protected literature while prohibiting its access by the less affluent."
Instead, Ferguson found the due-process claims much more relevant. Freedman had held that any statutory process by which obscene material was seized and potentially suppressed must explicitly require a hearing within a brief period of the seizure. While Luros admitted that the government had moved to hold a forfeiture hearing within a reasonable time period of the photographs' seizure, it still took 76 days until the court had heard the case. "All concede that under present statutory procedures it could not have been accomplished any sooner." And that was not necessarily due to bureaucratic delays. "Section 1305 does not prohibit customs agents from long delaying judicial determination," Ferguson observed. "The First Amendment does not permit such discretion." Having reached that conclusion, he declined to consider Luros's other arguments and ordered the photographs returned following a 30-day stay
to allow the government time to appeal if it wished to do so.
. The Court heard oral argument
s almost a year later, on the same day as United States v. Reidel, another case directly appealed from the Central District of California challenging, under Stanley as well, the prohibitions against mailing obscene material to willing adult recipients.
Fleishman argued for Luros and the photographs again. Solicitor General
Erwin Griswold
appeared for the government.
had declined to extend Stanley to cover the distribution of obscene material. White wrote both opinions.
In Thirty-seven Photographs, two of the justices who had joined the majority, John Marshall Harlan
and Potter Stewart
, also wrote concurrences
. Hugo Black
and William O. Douglas
, both of whom had long made it clear they believed the government had no business forbidding obscenity, wrote an extensive dissent
critical of all elements of White's opinion. Thurgood Marshall
wrote a separate concurrence in Reidel that also explained his reasons for dissenting in Thirty-seven Photographs.
of Section 1305, and found that senators during debate had been concerned about putting so much power in the hands of a low-level official. As a result the bill was amended to allow for review.
At that time no time requirement was included. Perhaps those senators, White speculated, had not seen a need to do so, but nearly four decades later there was. In some cases months had passed between the seizure and the hearing. "[F]idelity to Congress' purpose dictates that we read explicit time limits into the section," he wrote. Otherwise, the only possible resolution to the case was to hold the statute unconstitutional, but that, too, had been prevented by a severability
provision. Based on other such statutes with a time-limit provision, White found 14 days to be an apt requirement.
White did not find the analogy to Stanley convincing. That case did not support a right to import obscene materials for private use. "[A] port of entry
is not a traveler's home. 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."
, which the district court had not ruled on and so did not have to be addressed by the majority. "It is incontestable that 19 U.S.C. § 1305(a) is intended to cover, at the very least, importation of obscene materials for commercial purposes," he wrote. "Since the parties stipulated that the materials were imported for commercial purposes, Luros cannot claim that his primary conduct was not intended to be within the statute's sweep." Only a holding that Stanley covered the importation of obscene material for private use would force a reconsideration of the constitutionality of the entire statute, due to the severability clause, and Harlan thought that should be avoided since it was not necessary to decide that question in order to resolve the case.
Stewart's short concurrence differed with White and the other justices over the applicability of the Stanley holding to the importation of obscene material for private use. "The terms of the statute appear to apply to an American tourist who, after exercising his constitutionally protected liberty to travel abroad, returns home with a single book in his luggage, with no intention of selling it or otherwise using it, except to read it," he wrote. "If the Government can constitutionally take the book away from him as he passes through customs, then I do not understand the meaning of Stanley v. Georgia".
Black turned to specific issues with the majority. He had not found its explanation of how the district court had erred in applying Stanley to the importation of images for private use. As a general matter, he wrote, "[t]he mere act of importation for private use can hardly be more offensive to others than is private perusal in one's home. 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." Nor did he find the majority's specific reason, that travelers returning from abroad and their luggage are routinely subject to search
, compelling since it was just as likely that police would search a private home for reasons unrelated to suspected possession of obscene material.As had occurred in Stanley.
Perhaps, he speculated, the majority had assumed without actually saying so that the import ban was necessary to prevent the distribution of obscene material through domestic commercial channels. But an analogous argument had been specifically rejected in Stanley, and as a general principle the Court had held in other First Amendment cases that a restriction on protected rights that served a state interest had to be narrowly tailored to that interest. Since the plurality
Because Harlan had indicated he merely concurred in the Stanley analysis without joining it and Stewart did not concur with it at all, that section of the majority opinion is considered a plurality
since it does not command a majority of the justices. did not make that distinction, "I can only conclude that, at least four members of the Court would overrule Stanley. Or perhaps, in the future, that case will be recognized as good law only when a man writes salacious books in his attic, prints them in his basement, and reads them in his living room."By the 21st century, three decades after Thirty-seven Photographs was decided, this was actually possible and practical.
Black also criticized the imposition of the 14-day time limit on a textualist
basis, an approach he commonly employed. The majority should have simply found the statute unconstitutional for lacking one and affirmed the district court on that basis, leaving the actual revision of Section 1305 to Congress. As it was, the Court's action "represents a seizure of legislative power that we simply do not possess
under the Constitution."
There were also specific problems with that action in the instant case. Black also argued that the legislative history of the statute's adoption, which the majority had used as a basis for imposing this limit, did not in fact support its action since it referred to a version of the statute that was never actually adopted. In previous obscenity-related cases where the Court had held the statutes could be amended to bring them into constitutional compliance, it had declined to do so. Nor had it let severability
provisions stop such holdings.
Since he could not find the time limit justified by either previous jurisprudence or the legislative history of the statute, Black suspected the majority was deriving them from the First Amendment itself. If that was so, he found it:
Marshall's dissent, at Reidel, distinguished that case from Thirty-seven Photographs by noting that the delivery of obscene material via the mails presented the hazard that children or unwilling recipients would be exposed to it, which the state had an interest in preventing, whereas only Luros would be exposed to the photographs. "[T]he seized items were then in his purely private possession and threatened neither children nor anyone else.
Another in rem case, United States v. 12 200-ft. Reels of Super 8MM. Film et al, began. This time, the claimant insisted the subject materials were intended for purely private and personal use, and asserted as Luros had that Stanley permitted such importation. A similar panel relied on its predecessor's opinion in Thirty-seven Photographs and likewise held Section 1305 unconstitutional, not just for the procedural shortcomings but as a violation of the First Amendment on its face. The government appealed to the Supreme Court, which decided to hear what was now United States v. 12 200-ft. Reels of Film
.
Black and Harlan, both of whom died shortly thereafter, retired before the October 1971 term began. With their seats vacant, the case would be argued twice, along with four other obscenity-related cases the Court had decided to take. William Rehnquist
had been seated to replace Harlan before the January hearing, but the delay in seating Lewis Powell to bring the Court back to full strength delayed a rehearing into the next term, to November 1972.
The decisions in all five cases were announced on the same day at the end of the term, since one was Miller v. California
, in which a majority had agreed on a new standard of obscenity, superseding Roth. It governed the application of the other cases, including Reels of Film, which was remanded to the district court to determine if the materials met the new standard of obscenity, which relied on contemporary community standards rather than a national one.
Chief Justice Warren Burger wrote for a 5–4 majority, including the two new justices, that Stanley was still inapplicable to the importation of obscene material. "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." Douglas's much lengthier dissent reviewed the history of obscenity in the United States, noting it appeared not to have been vigorously prosecuted in Colonial America
, if at all, and thus an obscenity exemption could not be presumed to have been implicit in the First Amendment as the Miller majority had suggested. "[I]t is ironic to me that, in this Nation, many pages must be written and many hours spent to explain why a person who can read whatever he desires", he wrote, "may not without violating a law carry that literature in his briefcase or bring it home from abroad." William Brennan wrote a shorter dissent, joined by Stewart and Marshall, agreeing with the district court that Section 1305 was unconstitutional.
heard and decided Sarkisian v. United States,Alternatively known by the in rem name United States v. One Package of Antiques and Indian Jewelry. in which the Customs Service had refused to return a parcel containing jewelry purchased in Lebanon
, claiming it had been fraudulently misrepresented as antique. As in Thirty-seven Photographs the statute authorizing the seizure set no time limit for formal proceedings to begin, and the court was unconvinced by government attempts to distinguish the case for lack of an obscenity allegation. "The withholding of Sarkisian's property under the circumstances before us presents a constitutional claim of no less dignity than that arising from the dirty pictures. We thus apply the same principles", wrote Judge Oliver Seth
. It remanded the case with instructions to return the package. Several years later Judge Walter Herbert Rice
of the Southern District of Ohio
described Thirty-seven Photographs as "the earliest significant treatment of delay in a forfeiture context."
It has also been a touchstone case for the Court's standard of review
. Later cases cited it as reaffirming the principle by which the Court avoids ruling on the constitutionality of a statute if it can find a way to construe the statute such that the constitutional question is avoided.The language quoted where the case is cited to this effect—"It is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided"— is actually from a much earlier case, Crowell v. Benson
, , 62 (1932), Hughes
, C.J. The Court itself quoted this section in Lorillard v. Pons, , Marshall, J.). The Third Circuit
's citation of this in Cox v. Keystone Carbon Co., 861 F.2d 390, 393 note 4 (3rd Cir.,1988), is the most notable lower-court reference. In New York v. Ferber
, its landmark 1982 holding that child pornography
was outside First Amendment protection, the Court clarified that under Thirty-seven Photographs, if such a construction was impossible but the statute was severable
, only the unconstitutional portions should be invalidated.
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
of imported obscene
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
material. A 6–3 court held that the federal statute governing the seizures was not in violation of the First Amendment
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...
as long as the government began forfeiture proceedings within 14 days of the seizure.
The case began with the seizure of the photographs, depicting various sexual positions, from Milton Luros, a Southern California
Southern California
Southern California is a megaregion, or megapolitan area, in the southern area of the U.S. state of California. Large urban areas include Greater Los Angeles and Greater San Diego. The urban area stretches along the coast from Ventura through the Southland and Inland Empire to San Diego...
publisher who was returning from Europe. He had intended to use them to illustrate a volume 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...
, or failing that, to keep them for his own personal use. A district court panel, guided by the Court's 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,...
decision of several years before, rejected his claims that the First Amendment allowed citizens to import obscene material, but found the statute unconstitutional due to the lack of time limits and ordered the Customs Service to return the images to Luros. The government appealed directly to the Supreme Court.
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
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....
, distinguishing the case from 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,...
, which had also involved time limits, by noting that it was a federal statute rather than a state one and therefore the Court could give it an authoritative construction. John Marshall Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...
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,...
also wrote concurring opinion
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...
s expanding on aspects of the majority holding. Stewart did not agree with the majority that the ban on personal importation of obscene material was consistent with 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 dissenting
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....
justices wrote two opinions. 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 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...
took issue with every aspect of the holding, believing the government had no power to regulate obscenity. Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
agreed with them and Stewart that the blanket importation ban was constitutional. That issue would be reconsidered in a similar case two years later, United States v. 12 200-ft. Reels of Film
United States v. 12 200-ft. Reels of Film
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...
. The case would have little impact on the future development of obscenity law. It has, however, been cited as the first forfeiture case to deal with the question of time limits, and also reaffirmed a principle by which the Court avoids dealing with constitutional questions when it can through alternative constructions.
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
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...
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.
Underlying dispute
In October 1969 Milton Luros, a former illustrator turned adult-magazine publisher, returned to Los AngelesLos Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
from a trip to Europe. Customs agents at Los Angeles International Airport
Los 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...
searched his luggage and found 37 photographs depicting naked heterosexual couples having sexual intercourse
Sexual intercourse
Sexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
in different positions. They confiscated
Confiscation
Confiscation, from the Latin confiscatio 'joining to the fiscus, i.e. transfer to the treasury' is a legal seizure without compensation by a government or other public authority...
them pursuant to Title 18, Section 1305, of the United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
, a federal law passed in 1930 absolutely prohibiting the importation of any obscene material, but did not arrest Luros for attempting to violate it. He later revealed he had 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...
, the classic Indian treatise on human sexuality
Human sexuality
Human sexuality is the awareness of gender differences, and the capacity to have erotic experiences and responses. Human sexuality can also be described as the way someone is sexually attracted to another person whether it is to opposite sexes , to the same sex , to either sexes , or not being...
.
Two weeks later lawyers with the office of United States Attorney
United States Attorney
United States Attorneys represent the United States federal government in United States district court and United States court of appeals. There are 93 U.S. Attorneys stationed throughout the United States, Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands...
William Matthew Byrne, Jr., filed for 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...
. A week later Luros filed a counterclaim
Counterclaim
In civil procedure, a party's claim is a counterclaim if the defending party has previously made a claim against the claiming party.Examples of counterclaims include:...
. He argued that the images were not obscene and claimed both the seizure and the statute authorizing it were unconstitutional. The seizure had violated his First Amendment
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...
rights since the pictures were meant to be viewed by adults only within the privacy of their own homes, which the Supreme Court had recently held was protected activity in Stanley. As for the statute, not only was it too vague to be enforceable, it allowed seizures prior to an adversary hearing and did not require that the forfeiture action be commenced within a specified time period, both violating due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
requirements, Luros argued.
In district court
The law provided for contested forfeitures to be heard by a panel of three judges, similar to an appellate hearing. Since Luros had not been criminally charged himself, the case was an in rem action, with the photographs themselves as the defendants. Stanley Barnes from the Ninth Circuit Court of AppealsUnited 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...
was seated along with 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...
judges Jesse William Curtis Jr.
Jesse William Curtis Jr.
Jesse William Curtis Jr. was a United States federal judge.Born in San Bernardino, California, Curtis received a B.A. from the University of Redlands in 1928 and a J.D. from Harvard Law School in 1932. He was in private practice in San Bernardino, California from 1932 to 1953...
and Warren John Ferguson
Warren John Ferguson
Warren John Ferguson was a United States federal judge.Born in Eureka, Nevada, Ferguson received a B.A. from the University of Nevada in 1942 and was in the United States Army during World War II, from 1942 to 1945. He received an LL.B. from the University of Southern California Law School in 1949...
. They heard arguments from Luros's attorney Stanley Fleishman and the assistant U.S. attorneys representing Byrne's office and issued their decision in January 1970.
Ferguson wrote for the panel, which unanimously ruled for Luros. After rejecting the publisher's argument that Stanley absolutely covered the photographs, since he had admitted to planning a commercial use for them, the judge considered the other element of the First Amendment argument: the right of other adults to receive the book. While quoting from 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...
's 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...
in Lamont v. Postmaster General
Lamont v. Postmaster General
Lamont v. Postmaster General, 381 U.S. 301 , was a landmark First Amendment Supreme Court case, in which the ruling of the Supreme Court struck down § 305 of the Postal Service and Federal Employees Salary Act of 1962a federal statute requiring the Postmaster General to detain and deliver only upon...
to demonstrate his agreement that it was a fundamental right, he nevertheless found it inapplicable to the case since ruling otherwise would have an economically disparate impact: "The First Amendment cannot be construed to permit those who have funds for foreign travel to bring back constitutionally protected literature while prohibiting its access by the less affluent."
Instead, Ferguson found the due-process claims much more relevant. Freedman had held that any statutory process by which obscene material was seized and potentially suppressed must explicitly require a hearing within a brief period of the seizure. While Luros admitted that the government had moved to hold a forfeiture hearing within a reasonable time period of the photographs' seizure, it still took 76 days until the court had heard the case. "All concede that under present statutory procedures it could not have been accomplished any sooner." And that was not necessarily due to bureaucratic delays. "Section 1305 does not prohibit customs agents from long delaying judicial determination," Ferguson observed. "The First Amendment does not permit such discretion." Having reached that conclusion, he declined to consider Luros's other arguments and ordered the photographs returned following a 30-day stay
Stay of proceedings
A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial. The court can subsequently lift the stay and resume proceedings. However, a stay is sometimes used as a device to postpone proceedings indefinitely.-United Kingdom:In United...
to allow the government time to appeal if it wished to do so.
Before the Court
The government appealed directly to the Supreme Court as statute allowed it do so, and was 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...
. The Court heard 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...
s almost a year later, on the same day as United States v. Reidel, another case directly appealed from the Central District of California challenging, under Stanley as well, the prohibitions against mailing obscene material to willing adult recipients.
Fleishman argued for Luros and the photographs again. 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...
appeared for the government.
Decision
The Court handed down its decision in the case in May 1971, on the same day as Reidel. In both cases the majoritiesMajority 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....
had declined to extend Stanley to cover the distribution of obscene material. White wrote both opinions.
In Thirty-seven Photographs, two of the justices who had joined the majority, John Marshall Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...
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,...
, also wrote 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...
. 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 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...
, both of whom had long made it clear they believed the government had no business forbidding obscenity, wrote an extensive 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....
critical of all elements of White's opinion. Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
wrote a separate concurrence in Reidel that also explained his reasons for dissenting in Thirty-seven Photographs.
Majority opinion
Unlike the situation in Freedman, White observed, the challenged statute was federal, rather than state. Thus, "it is possible to construe the section to bring it in harmony with constitutional requirements." He reviewed the legislative historyLegislative history
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken...
of Section 1305, and found that senators during debate had been concerned about putting so much power in the hands of a low-level official. As a result the bill was amended to allow for review.
At that time no time requirement was included. Perhaps those senators, White speculated, had not seen a need to do so, but nearly four decades later there was. In some cases months had passed between the seizure and the hearing. "[F]idelity to Congress' purpose dictates that we read explicit time limits into the section," he wrote. Otherwise, the only possible resolution to the case was to hold the statute unconstitutional, but that, too, had been prevented by a severability
Severability
In law, severability refers to a provision in a contract which states that if parts of the contract are held to be illegal or otherwise unenforceable, the remainder of the contract should still apply...
provision. Based on other such statutes with a time-limit provision, White found 14 days to be an apt requirement.
White did not find the analogy to Stanley convincing. That case did not support a right to import obscene materials for private use. "[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. 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."
Concurrences
Justices Harlan and Stewart had also joined the first part of White's opinion, creating the 14-day rule from Freedman. Harlan chose to defend the statute from Luros's claim it was overbroadOverbreadth 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...
, which the district court had not ruled on and so did not have to be addressed by the majority. "It is incontestable that 19 U.S.C. § 1305(a) is intended to cover, at the very least, importation of obscene materials for commercial purposes," he wrote. "Since the parties stipulated that the materials were imported for commercial purposes, Luros cannot claim that his primary conduct was not intended to be within the statute's sweep." Only a holding that Stanley covered the importation of obscene material for private use would force a reconsideration of the constitutionality of the entire statute, due to the severability clause, and Harlan thought that should be avoided since it was not necessary to decide that question in order to resolve the case.
Stewart's short concurrence differed with White and the other justices over the applicability of the Stanley holding to the importation of obscene material for private use. "The terms of the statute appear to apply to an American tourist who, after exercising his constitutionally protected liberty to travel abroad, returns home with a single book in his luggage, with no intention of selling it or otherwise using it, except to read it," he wrote. "If the Government can constitutionally take the book away from him as he passes through customs, then I do not understand the meaning of Stanley v. Georgia".
Dissents
At the beginning of his dissent, Black reiterated his opposition to the concept of obscenity as completely beyond the reach of the Constitution. "In my view, the First Amendment denies Congress the power to act as censor and determine what books our citizens may read and what pictures they may watch." He found it most objectionable that the majority had returned to that aspect of the Roth holding since the Court's own jurisprudence since then had found the concept difficult to define. "After Roth, our docket and those of other courts have constantly been crowded with cases where judges are called upon to decide whether a particular book, magazine, or movie may be banned. I have expressed before my view that I can imagine no task for which this Court of lifetime judges is less equipped to deal." As such he had thought the Court was beginning to abandon Roth. Since it had instead affirmed it in both of the cases it decided that day, he warned that:Black turned to specific issues with the majority. He had not found its explanation of how the district court had erred in applying Stanley to the importation of images for private use. As a general matter, he wrote, "[t]he mere act of importation for private use can hardly be more offensive to others than is private perusal in one's home. 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." Nor did he find the majority's specific reason, that travelers returning from abroad and their luggage are routinely subject to search
Border search exception
The border search exception is a doctrine of United States criminal law that exempts searches of travelers and their property from the Fourth Amendment warrant requirement....
, compelling since it was just as likely that police would search a private home for reasons unrelated to suspected possession of obscene material.As had occurred in Stanley.
Perhaps, he speculated, the majority had assumed without actually saying so that the import ban was necessary to prevent the distribution of obscene material through domestic commercial channels. But an analogous argument had been specifically rejected in Stanley, and as a general principle the Court had held in other First Amendment cases that a restriction on protected rights that served a state interest had to be narrowly tailored to that interest. Since the plurality
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
Because Harlan had indicated he merely concurred in the Stanley analysis without joining it and Stewart did not concur with it at all, that section of the majority opinion is considered a plurality
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
since it does not command a majority of the justices. did not make that distinction, "I can only conclude that, at least four members of the Court would overrule Stanley. Or perhaps, in the future, that case will be recognized as good law only when a man writes salacious books in his attic, prints them in his basement, and reads them in his living room."By the 21st century, three decades after Thirty-seven Photographs was decided, this was actually possible and practical.
Black also criticized the imposition of the 14-day time limit on a 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...
basis, an approach he commonly employed. The majority should have simply found the statute unconstitutional for lacking one and affirmed the district court on that basis, leaving the actual revision of Section 1305 to Congress. As it was, the Court's action "represents a seizure of legislative power that we simply do not possess
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
under the Constitution."
There were also specific problems with that action in the instant case. Black also argued that the legislative history of the statute's adoption, which the majority had used as a basis for imposing this limit, did not in fact support its action since it referred to a version of the statute that was never actually adopted. In previous obscenity-related cases where the Court had held the statutes could be amended to bring them into constitutional compliance, it had declined to do so. Nor had it let severability
Severability
In law, severability refers to a provision in a contract which states that if parts of the contract are held to be illegal or otherwise unenforceable, the remainder of the contract should still apply...
provisions stop such holdings.
Since he could not find the time limit justified by either previous jurisprudence or the legislative history of the statute, Black suspected the majority was deriving them from the First Amendment itself. If that was so, he found it:
Marshall's dissent, at Reidel, distinguished that case from Thirty-seven Photographs by noting that the delivery of obscene material via the mails presented the hazard that children or unwilling recipients would be exposed to it, which the state had an interest in preventing, whereas only Luros would be exposed to the photographs. "[T]he seized items were then in his purely private possession and threatened neither children nor anyone else.
Subsequent jurisprudence
The Supreme Court got a chance to reconsider Thirty-seven Photographs very quickly. While it reached a broader, similar conclusion, the law was eventually repealed and there were no further cases. The case has also been cited for its procedural holdings in other forfeiture cases.United States v. 12 200-ft. Reels of Film
Shortly after the case had been heard in district court, another very similar seizure action started the next case that would allow the Supreme Court to revisit the issues of Thirty-seven Photographs, with a key difference. In April 1970 a California resident named Paladini was searched by customs agents in Los Angeles upon returning from Mexico. As they had with Luros, they found obscene material in his luggage, described later as "movie films, color slides, photographs, and other printed and graphic material". He, too, was not charged, and challenged the forfeiture.Another in rem case, United States v. 12 200-ft. Reels of Super 8MM. Film et al, began. This time, the claimant insisted the subject materials were intended for purely private and personal use, and asserted as Luros had that Stanley permitted such importation. A similar panel relied on its predecessor's opinion in Thirty-seven Photographs and likewise held Section 1305 unconstitutional, not just for the procedural shortcomings but as a violation of the First Amendment on its face. The government appealed to the Supreme Court, which decided to hear what was now United States v. 12 200-ft. Reels of Film
United States v. 12 200-ft. Reels of Film
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...
.
Black and Harlan, both of whom died shortly thereafter, retired before the October 1971 term began. With their seats vacant, the case would be argued twice, along with four other obscenity-related cases the Court had decided to take. 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...
had been seated to replace Harlan before the January hearing, but the delay in seating Lewis Powell to bring the Court back to full strength delayed a rehearing into the next term, to November 1972.
The decisions in all five cases were announced on the same day at the end of the term, since one was 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 a majority had agreed on a new standard of obscenity, superseding Roth. It governed the application of the other cases, including Reels of Film, which was remanded to the district court to determine if the materials met the new standard of obscenity, which relied on contemporary community standards rather than a national one.
Chief Justice Warren Burger wrote for a 5–4 majority, including the two new justices, that Stanley was still inapplicable to the importation of obscene material. "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." Douglas's much lengthier dissent reviewed the history of obscenity in the United States, noting it appeared not to have been vigorously prosecuted in Colonial America
Colonial America
The colonial history of the United States covers the history from the start of European settlement and especially the history of the thirteen colonies of Britain until they declared independence in 1776. In the late 16th century, England, France, Spain and the Netherlands launched major...
, if at all, and thus an obscenity exemption could not be presumed to have been implicit in the First Amendment as the Miller majority had suggested. "[I]t is ironic to me that, in this Nation, many pages must be written and many hours spent to explain why a person who can read whatever he desires", he wrote, "may not without violating a law carry that literature in his briefcase or bring it home from abroad." William Brennan wrote a shorter dissent, joined by Stewart and Marshall, agreeing with the district court that Section 1305 was unconstitutional.
Other cases
Most later jurisprudence that has relied on Thirty-seven Photographs has referred to its requirement of a time limit for forfeiture proceedings. Within six months the Tenth CircuitUnited States Court of Appeals for the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...
heard and decided Sarkisian v. United States,Alternatively known by the in rem name United States v. One Package of Antiques and Indian Jewelry. in which the Customs Service had refused to return a parcel containing jewelry purchased in Lebanon
Lebanon
Lebanon , officially the Republic of LebanonRepublic of Lebanon is the most common term used by Lebanese government agencies. The term Lebanese Republic, a literal translation of the official Arabic and French names that is not used in today's world. Arabic is the most common language spoken among...
, claiming it had been fraudulently misrepresented as antique. As in Thirty-seven Photographs the statute authorizing the seizure set no time limit for formal proceedings to begin, and the court was unconvinced by government attempts to distinguish the case for lack of an obscenity allegation. "The withholding of Sarkisian's property under the circumstances before us presents a constitutional claim of no less dignity than that arising from the dirty pictures. We thus apply the same principles", wrote Judge Oliver Seth
Oliver Seth
Oliver Seth was a United States federal judge.Born in Albuquerque, New Mexico, Seth received a B.A. from Stanford University in 1937 and an LL.B. from Yale Law School in 1940. He was in private practice in Santa Fe, New Mexico in 1940. He was in the United States Army Major from 1940 to 1946...
. It remanded the case with instructions to return the package. Several years later Judge Walter Herbert Rice
Walter Herbert Rice
Walter Herbert Rice is a United States federal judge.Rice was born in Pittsburgh, Pennsylvania. He received a Bachelor of Arts from Northwestern University in 1958, and a joint J.D./M.B.A. degree from Columbia University in 1962....
of the Southern District of Ohio
United States District Court for the Southern District of Ohio
The United States District Court for the Southern District of Ohio is one of two United States district courts in Ohio and includes forty-eight of the state's eighty-eight counties. Appeals from the court are taken to the United States Court of Appeals for the Sixth Circuit at Cincinnati The...
described Thirty-seven Photographs as "the earliest significant treatment of delay in a forfeiture context."
It has also been a touchstone case for the Court's standard of review
Judicial review in the United States
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself....
. Later cases cited it as reaffirming the principle by which the Court avoids ruling on the constitutionality of a statute if it can find a way to construe the statute such that the constitutional question is avoided.The language quoted where the case is cited to this effect—"It is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided"— is actually from a much earlier case, Crowell v. Benson
Crowell v. Benson
Crowell v. Benson, 285 U.S. 22 is the first United States Supreme Court decision that approved the adjudication of private rights by an administrative agency, not an Article III court...
, , 62 (1932), Hughes
Charles Evans Hughes
Charles Evans Hughes, Sr. was an American statesman, lawyer and Republican politician from New York. He served as the 36th Governor of New York , Associate Justice of the Supreme Court of the United States , United States Secretary of State , a judge on the Court of International Justice , and...
, C.J. The Court itself quoted this section in Lorillard v. Pons, , Marshall, J.). The Third Circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
's citation of this in Cox v. Keystone Carbon Co., 861 F.2d 390, 393 note 4 (3rd Cir.,1988), is the most notable lower-court reference. 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....
, its landmark 1982 holding that child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
was outside First Amendment protection, the Court clarified that under Thirty-seven Photographs, if such a construction was impossible but the statute was severable
Severability
In law, severability refers to a provision in a contract which states that if parts of the contract are held to be illegal or otherwise unenforceable, the remainder of the contract should still apply...
, only the unconstitutional portions should be invalidated.
See also
- List of United States Supreme Court cases, volume 402
- List of United States Supreme Court cases by the Burger Court
- List of United States Supreme Court cases involving the First Amendment