Parties: United States v. Thirty-Seven (37) Photographs
Date: 1971-06-14
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Paragraph: 12 - In Freedman v. Maryland, supra, we struck down a state scheme for administrative licensing of motion pictures, holding 'that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.'
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Paragraph: 39 - Thus, for the foreseeable future this Court must sit as a Board of Supreme Censors, sifting through books and magazines and watching movies because some official fears they deal too explicitly with sex. I can imagine no more distasteful, useless, and time-consuming task for the members of this Court than perusing this material to determine whether it has 'redeeming social value.' This absurd spectacle could be avoided if we would adhere to the literal command of the First Amendment that 'Congress shall make no law * * * abridging the freedom of speech, or of the press * * *.'
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Paragraph: 23 - But 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. Customs officers characteristically inspect luggage and their power to do so is not questioned in this case; it is an old practice and is intimately associated with excluding illegal articles from the country. Whatever the scope of the right to receive obscenity adumbrated in Stanley, that right, as we said in Reidel, does not extent to one who is seeking, as was Luros here to distribute obscene materials to the public, nor does it extend to one seeking to import obscene materials from abroad, whether for private use or public distribution. As we held in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and reiterated today in Reidel, supra, obscenity is not within the scope of First Amendment protection. Hence Congress may declare it contraband and prohibit its importation, as it has elected in ยง 1305(a) to do.
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Paragraph: 40 - It would seem to me that if a citizen had a right to possess'obscene' material in the privacy of his home he should have the right to receive it voluntarily through the mail. Certainly when a man legally purchases such material abroad he should be able to bring it with him through customs to read later in his home. The 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 and 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.
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Paragraph: 42 - Perhaps, however, the plurality reasons silently that a prohibition against importation of obscene materials for private use is constitutionally permissible because it is necessary to prevent ultimate commercial distribution of obscenity. It may feel that an importer's intent to distribute obscene materials commercially is so difficult to prove that all such importation may be outlawed without offending the First Amendment. A very similar argument was made by the State in Stanley when it urged that enforcement of a possession law was necessary because of the difficulties of proving intent to distribute or actual distribution. However, the Court unequivocally rejected that argument because an individual's right to N102* 'read or observe what he pleases' is so 'fundamental to our scheme of individual liberty.'
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Paragraph: 43 - Furthermore, any argument that all importation may be banned to stop possible commercial distribution simply ignores numerous holdings of this Court that legislation touching on First Amendment freedoms must be precisely and narrowly drawn to avoid stifling the expression the Amendment was designed to protect. Certainly the Court has repeatedly applied the rule against overbreadth in past censorship cases, as in Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), where we held that the State could not quarantine N57* 'the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence.'
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Paragraph: 46 - Certainly claimant Luros has standing to raise the claim that the customs statute's failure to provide for prompt judicial decision renders it unconstitutional. Our previous decisions make clear that such censorship statutes may be challenged on their face as a violation of First Amendment rights 'whether or not (a defendant's) conduct could be proscribed by a properly drawn statute.' Freedman v. Maryland, supra, 380 U.S., at 56, 85 S.Ct., at 737. This is true because of the N58* 'danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.' NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Since this censorship statute is unconstitutional on its face, and claimant has standing to challenge it as such, that should end the case without further ado.
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Paragraph: 38 - I particularly regret to see the Court revive the doctrine of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), that 'obscenity' is speech for some reason unprotected by the First Amendment. As the Court's many decisions in this area demonstrate, it is extremely difficult for judges or any other citizens to agree on what is 'obscene.' Since the distinctions between protected speech and 'obscenity' are so elusive and obscure, almost every 'obscenity' case involves difficult constitutional issues. 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.
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