United States v. 12 200-ft. Reels of Super 8MM. Film

PETITIONER:United States
RESPONDENT:12 200-ft. Reels of Super 8MM. Film
LOCATION:Wisconsin State Capitol

DOCKET NO.: 70-2
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 413 US 123 (1973)
REARGUED: Nov 07, 1972
DECIDED: Jun 21, 1973
ARGUED: Jan 19, 1972

ADVOCATES:
Erwin N. Griswold – for appellant
Thomas H. Kuchel

Facts of the case

Question

  • Oral Reargument – November 07, 1972
  • Audio Transcription for Oral Reargument – November 07, 1972 in United States v. 12 200-ft. Reels of Super 8MM. Film

    Audio Transcription for Oral Argument – January 19, 1972 in United States v. 12 200-ft. Reels of Super 8MM. Film

    Warren E. Burger:

    We’ll hear arguments next in number 70-2, United States against 12 Reels of Film.

    Mr. Solicitor General, you may proceed whenever you are ready.

    Erwin N. Griswold:

    Mr. Chief Justice and may it please the Court.

    This case comes here on appeal from the Central District Court of California, which held unconstitutional an act of Congress providing for the forfeiture of obscene material imported into the United States.

    This present case and the one which follows are sequels to the decisions of the Court last term in United States against Reidel and United States against Thirty-Seven Photographs.

    Those cases involved transmissions through the mails and importation of obscene materials for commercial purposes.

    The distinctive feature of this case is that the importation here is alleged to be for private use.

    The present proceeding is an in rem proceeding against a number of items which were imported by the claimant.

    Some of those have been returned to the claimant as not obscene.

    The others are on file at the Court.

    I believe it can be said that if anything is obscene, these items are and particularly the printed material.

    These in my view are not borderline materials.

    If the Court is disposed to hold that there is nothing that can be held to be obscene under the Constitution, that will dispose of this case.

    But if obscenity still has any constitutional meaning, then I believe that these materials would have to be found to be obscene by any standard which has ever been suggested by the Court.

    When the complaint for forfeiture came on to be heard, the District Court granted a motion to dismiss, relying on the prior decision of the same court in the Thirty-Seven Photographs case, the one which was reversed last term.

    At that time the claimant filed an affidavit, stating that the items were not, and I quote “were not imported by me for any commercial purpose, but were intended to be used and possessed by me personally.”

    And in response to the United States Attorney filed a motion for a stay of the order of dismissal in which he stated that the United States had and again I quote, “No evidence with which to contradict Mr. Paladini’s affidavit and therefore does not confess the fact that this was a private importation.”

    There are at least two lines of reasoning on which the government’s case maybe rested.

    In the first place, if these materials are obscene as I have contended or if they must be regarded as obscene, since the court below has rendered a motion to dismiss without determining the question of obscenity, then the materials are not entitled to the protection of the First Amendment and that would seem to dispose off the matter since no Fourth Amendment question is involved.

    Nearly 15 years ago in Roth, this Court decided that obscenity is not within the area of constitutionally protected speech or press.

    There is nothing in this Court’s subsequent decisions to indicate that this is still not the law and quite the contrary.

    In Stanley against Georgia which is the basis of the decision of the court below, this Court said Roth and the cases following that decision are not impaired by today’s holding, that was in 1969.

    In last term in Reidel, the Court quoted the language from Roth and said, Roth has not been overruled, it remains the law in this Court and governs this case.

    In Thirty-Seven Photographs decided the same day, Mr. Justice White speaking for four members of the Court, reiterated the statement that obscenity is not within the scope of First Amendment’s protection.

    If this material is obscene by any standard as I have contended and if obscenity is not protected by the First Amendment, then it would seem to follow that there is no constitutional basis.

    William J. Brennan, Jr.:

    May I ask this Mr. Solicitor General?

    I didn’t find that there is any disagreement that these materials are obscene.

    Two things were returned to that status, one a sealed the film and something else, and I thought there was no disagreement with —

    Erwin N. Griswold:

    I think that is correct.

    I am simply saying that they are obscene, but —

    William J. Brennan, Jr.:

    But I thought the real question here was whether the fact they bought in assuming obscenity for personal use rather than commercial use?

    Erwin N. Griswold:

    Yes, Mr. Justice, that is the question, but I don’t think that question can be escaped by examining the material and saying it is not obscene and that is the — for example, blank pieces of paper and this is not a framed issue, this is a real case.

    William J. Brennan, Jr.:

    Well, speaking from myself.

    I have not thought, compared it to this argument, and that is, I had to two another cases, that I had to examine the material.

    I didn’t think that any issue of obscenity was contested (Inaudible)

    Erwin N. Griswold:

    I think that is accurate Mr. Justice, except that I think that these materials are obscene.

    William J. Brennan, Jr.:

    Well, I don’t have to look at it, do I?

    Erwin N. Griswold:

    Not to assume that they are obscene.

    William J. Brennan, Jr.:

    Well, no one seems to have contested?

    Erwin N. Griswold:

    Or if you say that obscenity is not relevant in the case, it seems to me that it should not be disposed of on ground that obscenity has not been established.

    Another approach leads to the same result.

    Stanley against Georgia held that obscene material seized in a man’s library in his home under a search warrant, authorizing a search for evidence of gambling materials could not be made the basis of a criminal prosecution for possessing the obscene items.

    I find no basis for objecting to the result, though as I contended last week in Counselman against Hitchcock, some of the language used may have been unnecessarily broad.

    As it was pointed out by the three concurring justices in that case, the decision is perhaps best rested on the Fourth Amendment as an illegal search, not adequately supported by the warrant which the officers had obtained.

    But on that basis, it is not a First Amendment case and has no application here.

    This is borne out by the Court’s decision in the Reidel and Thirty-Seven Photographs cases.

    The Reidel decision held that the rationale of Stanley was not sufficient to bar a prosecution of a person who on a commercial basis mailed obscene material to a recipient at his home.

    Though Stanley had referred to the right to receive information and ideas, this right for receive was not sufficient to allow the recipient to obtain obscene material through the mails from a commercial mailer as against the right of the United States, constitutionally to forbid its passage through to the mails.

    And in Thirty-Seven Photographs, this conclusion was reached with respect to obscene material, a single set of 37 photographs which an individual had acquired abroad and sought to bring into the United States through customs with a view to using them in a commercial publication.

    As indicated by my response to Mr. Justice Brennan’s question, the sole difference between this case and Thirty-Seven Photographs, is that here the importation is allegedly to be for the personal use of the importer, and we have no evidence to the contrary.

    In view of Reidel however, that would seem to be a distinction without a difference.

    If a person cannot have things mailed to him without causing the mailer to commit a crime, it is rather hard to see that he should be able to bring things into the country himself as against the “broad and sweeping” powers of Congress to regulate foreign commerce and the traditional comprehensive power of this and all other nations over all materials entering the country at the borders.

    Now this was the view of the four justices constituting the plurality in Thirty-Seven Photographs.

    They said in Thirty-Seven Photographs, the trial court erred in reading Stanley as immunizing from seizure, obscene materials possessed at a port of entry for the purpose of importations for private use.

    And then obscene material maybe removed in the channels of commerce when discovered in the luggage of a returning foreign traveler, even though intended solely for his private use and the finally, a port of entry is not a traveler’s home.

    As I have contended the First Amendment does not apply since the material is obscene or must be taken as obscene and it is no less obscene, because it is imported to private use.

    The Court would not hold I suppose that a person who would lawfully bring in narcotics or a hand grenade on the ground that he was going to use the narcotics or the hand grenade personally.

    I know of no basis on which it can be determined, either under the First Amendment or otherwise that personal use provides some sort of a protection against otherwise applicable laws.

    Now I suppose if the Court hold is a person can import foreign credit book, which violates an American copyright on the ground that he is going to use the book himself.

    I well remember the (Inaudible) editions of American books, which we used to buy in Europe a generation ago, and there a clear statement that they could not be imported into the United States under the copyright laws.

    Erwin N. Griswold:

    I’ve read a Farewell to Arms in a (Inaudible) edition and took care to have it finished before I came home, perhaps this was unnecessary, if the decision below is sound, but I did not think so then.

    William O. Douglas:

    Because that was well before Stanley decided.

    Erwin N. Griswold:

    That was before Stanley was decided, but this is the same constitution Mr. Justice and the same for First Amendment.

    Congress has sweeping power at our borders though its power to regulate foreign commerce, not power of course to violate the Constitution, but power under the Constitution to regulate foreign commerce in terms which are not qualified by the constitutional provision itself.

    I can find nothing in the terms of the First Amendment, which limits the power of Congress to bar the importation of obscene materials, even when they are intended for private use.

    It can be done, I suggest, only by erecting a very substantial penumbra around the First Amendment extending quite far beyond its terms and beyond the privacy of the home or the person which were involved in the Stanley case and in Griswold against Connecticut.

    Such an extension is not warranted by any constitutional precedent or standard that I know of.

    If it were done, it is hard to tell how the limits of the penumbra could be determined.

    It would be I suppose whatever this Court thinks it should be.

    Of course, constitutional improvisations cannot always be interpreted literally, but finding support in the First Amendment for the result reached by the court below would carry the Court farther way from the constitutional language, I submit, than the Court ought to go, and farther away from the language than is required or authorized by any prior decision of the Court.

    Finally, let me suggest that any construction that the materials can be imported for personal use against the will of Congress, though not for commercial purposes, is not only unsupported by anything in the Constitution, but is too illusory and (Inaudible) a distinction to be erected into constitutional terms.

    How is fact of personal use to be determined?

    Is the importer’s statement to be conclusive either legally or as a practical matter?

    How binding is the claimant’s assertion on him?

    How long must the intention last?

    What happens when it changes?

    How in the ordinary case can the government counter the assertion of the importer, that his importation is for private purposes?

    Of course, if he brings in a bale of duplicate copies, it will look like a commercial importation, but the sophisticated will not do that.

    With the ready availability of duplicating machinery these days, a single copy suffices to make possible wide-scale distribution.

    How can the government, as a practical matter police this?

    What happens if the importer for private use dies or goes bankrupt?

    Can his trustee in bankruptcy sell the material along with the rest of bankrupt’s valuable library on the ground that it was lawfully imported, indeed, constitutionally imported for private use and if not, why not?

    Suppose the importer for private use tires of the material, can he give it to a friend or perhaps sell it for a good price after a decent interval has elapsed since the importation, if not, again, why not?

    Potter Stewart:

    Well, I think of why not is, Reidel, isn’t it, Reidel against the United States, that covers the seller, doesn’t it?

    Erwin N. Griswold:

    Cover the?

    Potter Stewart:

    The seller — the seller of such material?

    Erwin N. Griswold:

    Yes.

    Potter Stewart:

    It is — that’s squarely covered by the Reidel case, is it not?

    Erwin N. Griswold:

    The Reidel case is the transportation through the mails.

    There nothing in the Reidel case that has anything to do with a simple sale and delivery.

    Potter Stewart:

    I didn’t know you thought it was such a narrow decision?

    Erwin N. Griswold:

    Well, Reidel was a — it involved a prosecution under a statute which makes it a crime to transmit through the mails and as far as I know that’s the only thing that was there decided.

    I don’t know of any federal basis for jurisdiction with respect to a simple transfer between man and man of obscene or other material wholly within a state not involving interstate commerce or the use of the mails.

    Potter Stewart:

    Well, and the Federal government has no ligitimate —

    Erwin N. Griswold:

    This is I think it’s exactly my point, that once this material is admitted on the ground that it is for private use, there is no way that I know of by which that can be controlled or a change in the importer for private use decide that he’s tired of it and he would like to sell it indeed, or give it way.

    Potter Stewart:

    Except possibly by State Law.

    Erwin N. Griswold:

    That might be under State Law, but the Federal government would have to rely on State Law, and I suggest that a restriction on such a sale couldn’t be found in the First Amendment and I don’t know where else it could be found.

    Are we not reading too much into the First Amendment when we get into this area at all?

    Is it not sounder to say that the First Amendment has nothing to do with this case since as this Court has said and reaffirmed not long ago, obscenity is not within the area of constitutionally protected speech or press and the judgment below should be reversed.

    Warren E. Burger:

    Thank you Mr. Solicitor general.

    Senator Kuchel.

    Thomas H. Kuchel:

    Mr. Chief Justice, may it please the Court.

    Appearing as a friend of the Court, we would urge that the statute in this case is unconstitutional because of overbreadth, because it would seek to deprive one Paladini, the citizen whose luggage was inspected on his way back to this country, of the right to receive information and ideas and to his private possession of that information.

    In Stanley versus Georgia, the Court recognized two fundamental liberties encompassed within the First Amendment.

    It recognized the right to receive information and ideas, regardless of their social worth.

    It recognized the right of privacy, from unwanted government intrusion to films or books for personal use.

    Mr. Chief Justice whether or not materials possessed for private use are obscene, is completely irrelevant to the recognition of the fundamental liberties described in Stanley versus Georgia.

    And I quote two sentences from Reidel, “the personal constitutional rights of those like Stanley,” said this Court, “to possess and read obscenity in their homes and their freedom of mind and thought, do not depend on whether the materials are obscene or whether obscenity is constitutionally protected.

    Their rights to have and to view that material in private, are independently saved by the Constitution.”

    The right to have —

    Thurgood Marshall:

    There is a quotation in Thirty-Seven Photos on page 376 where it says Stanley doesn’t apply to such a quote,” right?

    Thomas H. Kuchel:

    There is that language in Thirty-Seven Photos.

    I would most respectfully urge that —

    Thurgood Marshall:

    It says Stanley’s emphasis was on the freedom of thought and mind and privacy of their homes, but the thought of entry is not the traveler’s home.”

    Doesn’t that what it says?

    Thomas H. Kuchel:

    No sir, it does not.

    Potter Stewart:

    In first place that was not a court opinion, was it?

    Thomas H. Kuchel:

    Sir.

    Mr. Justice, I do want most respectfully to come in on that particular language in the —

    Byron R. White:

    But it was only before Justices?

    Thomas H. Kuchel:

    Yes sir, but I would not argue from that point of view.

    William J. Brennan, Jr.:

    Senator, may I ask, getting it back to my colloquy with the Solicitor General.

    I am right am I not, that we may decide this case on the premise material here involved by any definition are obscene?

    Thomas H. Kuchel:

    You are, yes Mr. Justice.

    The right to have and to view materials in privacy can be meaningful at all only if all places of privacy are given equal dignity.

    Materials can be possessed privately outside the home, such as in one’s office, something which the appellant’s brief incidentally recognizes, in one’s luggage, in one’s clothing.

    If Stanley had a right to possess for private use, obscenity in his home, surely it would be a rather narrow constitutional right, if as he stepped off the steps leading to his home with whatever he had in his pocket, that at that point the protection of the First Amendment would evaporate.

    It would be illogical and destructive of privacy to permit intrusion into the freedom of mind, and thought in private places other than the home.

    And it could lead to an absurd result, that a man could be prosecuted for private possession of materials when he left his home, possessing books on his person, on his way to his office, or to take up another residence, or to retire to the privacy of a mountain cabin.

    The law recognizes that privacy is not restricted to one’s home.

    This Court has said that the law protects people, and not places.

    Stanley versus Georgia, clearly doesn’t derive its vitality, from the fact that Stanley’s home was involved.

    The home is not a search proof heaven for possession of illegal materials to the contrary in Stanley itself, a valid search warrant to both local officers and federal officers in the Stanley’s home.

    But this Court vindicated Stanley’s right to keep certain articles and there can be no difference between the kind of inspection under the Fourth Amendment in Stanley than the Customs inspection which took place with respect to the luggage of Paladini as he returned to this country.

    If Stanley had a right of privacy, if he had a right regardless of the type of materials which he had, to possess in his home, should he not have a right to bring similar materials into this country and is it not irrelevant that a customs inspection took place as he arrived back in this country.

    Warren E. Burger:

    Senator Kuchel, let me ask you this.

    Let’s assume for the moment if we accept that proposition that the rights of privacy which attaches to a Stanley in his home, follows him wherever he takes that material, that is if he takes it to his office or as you said summer place or out in the park, as long as he is not bothering anyone else with it, does that necessarily – does it necessarily follow that, that right of privacy pretends the bringing into the United States at the borders having in mind the broad powers of government to deal with him importations, or do you not have to carry it one step beyond that’s really what I am asking?

    Thomas H. Kuchel:

    Mr. Justice, I would urge no.

    I would urge that Congress has under the Constitution a broad power with respect to post offices and post roads.

    I would urge that Congress has a broad power with respect to regulation of Commerce, but this Court in determining the power of Congress in those fields must take into consideration, the liberties guaranteed in the Bill of Rights, and particularly with respect to this case, the First Amendment, that is what makes a book or a film, Mr. Chief Justice, I most respectfully say different from narcotics or steel the government of the United States can obtain the right to search a home in order to determine whether narcotics are possessed by the individual who lives there and seize them.

    The difference which makes the film or the print or the book, a greatly distinct problem is because of the First Amendment guarantees.

    William H. Rehnquist:

    Senator, I take it that the Solicitor General’s argument is that since all concede that the material here was obscene and since Roth says obscenity is not protected by the First Amendment that therefore, the fact that it may have been in form of book, does not really make it any difference from narcotics.

    What is your response to that line of argument?

    Thomas H. Kuchel:

    My response would be that this Court, Mr. Justice Rehnquist, in Stanley, particularly determined that Stanley was entitled to posses obscenity in his home for private use that is the decision of this Court.

    It was a First Amendment decision.

    I respectfully disagree with the Solicitor General.

    It was on the basis of the First and the Fourteenth Amendment that this Court’s opinion was written.

    My argument would be that if there is a right, under Stanley, or a person to have a right of privacy in his home to obscenity, that right does not rest upon the fact that it is in his home, but that it is protected by the First Amendment.

    William J. Brennan, Jr.:

    I suppose Senator, would that be your answer also, you know under the Fourth Amendment, I think there have been decisions partly against the Courts of Appeals certainly the Ninth Circuit, that for Fourth Amendment purposes border searches allow wide latitude, and would search his house, from the searches at home.

    Would you answer be the same I guess to the colloquy you were having with the Chief Justice?

    William J. Brennan, Jr.:

    Like a distinction between border and other inspections, in light of the greater latitude, that’s easily stems from the Fourth Amendment border searches?

    Thomas H. Kuchel:

    No Mr. Justice, it seems to me that the Customs Inspector was performing a function which was closed by law.

    He had a responsibility to make that search in a reasonable fashion, but the fact that he made that search should not interfere with Paladini’s rights to possess for private purposes, the films that are involved in this case.

    What is the difference between Stanley’s right?

    William J. Brennan, Jr.:

    What I was trying to get is that I gather you are saying that Stanley’s rights, the privacy aspect more on the on the First Amendment than it does on the Fourth?

    Thomas H. Kuchel:

    Yes sir, yes Mr. Justice.

    William J. Brennan, Jr.:

    So that would be your answer to why is there no difference for the border search or border inspection and the seizure at home?

    Thomas H. Kuchel:

    Yes sir.

    Potter Stewart:

    Stanley’s home and the things in it certainly could have been added in search by — under a search?

    Thomas H. Kuchel:

    Precisely.

    Potter Stewart:

    There may have been more rigid standards under the Fourth and Fourteenth Amendments than a border search under the Fourth Amendment but it was searchable under the proper Fourth Amendment standards, but that did not deter the Court from saying that he absolutely could not be prosecuted or convicted substantively because the First and Fourteenth Amendment, is that your point?

    Thomas H. Kuchel:

    It is precisely, Mr. Justice Stewart.

    Warren E. Burger:

    I suppose then in separating the search from the seizure, what you are really saying is that you don’t want to inhibit their right to search, which is for a broad prophylactic purposes, narcotics, guns, hand grenades, but what they find during that search then falls under the ban of Stanley?

    Thomas H. Kuchel:

    That is correct Mr. Justice because if I read Stanley correct, it was because the First Amendment rights that prevented the seizure of the items in the Stanley.

    Warren E. Burger:

    Wasn’t Stanley more narrowly a privacy than a broad First Amendment base?

    Thomas H. Kuchel:

    I do not understand.

    Warren E. Burger:

    That Stanley was based on the right of privacy narrowly rather than upon broad First Amendment rights with respect to materials and publications and that sort of thing?

    Thomas H. Kuchel:

    Mr. Justice, I thought that Stanley determined that there was a right to receive and a right to posses so long as those rights were exercised in private, so long as there was no vindication of a public distribution.

    Whether, it be commercial or not, I think, so long as those rights were exercised by the individual himself in private that he was protected and I read that as an interpretation of rights accruing to the citizen under the First Amendment.

    I think it is also fair to say that Stanley put to rest any notion that the difficulties in prosecution of commercial distribution is a reason for denying First Amendment freedom of individuals to receive information and to be free from government intrusion.

    Byron R. White:

    Senator what about Reidel?

    Would you say Stanley – how much of Stanley — what part of your argument about Stanley can survive Reidel?

    Thomas H. Kuchel:

    I would argue that Reidel represented a case involving public distribution, commercial distribution —

    Byron R. White:

    But what about — Senator I’ll put you in a case.

    Suppose a bookstore owner is charged with selling an obscene item to a certain customer and he responds, well, it’s sold for his private use in his home and the government concedes that that’s quite true, but nevertheless that this was commercialization of obscenity and Reidel permits a prosecution for that?

    Thomas H. Kuchel:

    Do we assume that the book is obscene under the courts definition?

    Byron R. White:

    Oh, yes, oh, yes.

    Thomas H. Kuchel:

    Then it is a sale.

    Then it is a public distribution and that is something entirely different.

    Byron R. White:

    So, you would say Stanley would permit, even on the opposition, Stanley would permit prosecutions for selling to a person for his private use in his home, that doesn’t bother you at all?

    Thomas H. Kuchel:

    I would, but that is not a question.

    Byron R. White:

    That’s your case, but what is it, do you think your position is inconsistent with that?

    Thomas H. Kuchel:

    Not at all, not at all.

    I think that your and my rights of privacy, under the First Amendment, have got to be considered in every question that comes.

    Byron R. White:

    So, you would say that, you may have the right to possess obscene material in your home, but you have no right to buy it.

    In the sense, at least you don’t such a right to buy it, but your seller is immune?

    Thomas H. Kuchel:

    You would never have a purchaser before this Court in a lawsuit.

    Byron R. White:

    Well, you have sellers though and —

    Thomas H. Kuchel:

    You have?

    Byron R. White:

    So, you would say the seller, even if the purchaser has the right to have it, even if a man has the right to have in his own home, a seller doesn’t necessarily or just doesn’t have the right to sell obscene material though?

    Thomas H. Kuchel:

    It’s just what I believe that Roth and Reidel, may stand alongside of Stanley and alongside of the judgment in the District Court in this case and I most respectfully say to you that with respect to Reidel, I do not quarrel with the decision in that case, but I do quarrel with the language which then went on in that case and indicated that even for private use, a person would be guilty.

    Byron R. White:

    Thirty-Seven Photographs?

    Thomas H. Kuchel:

    Excuse me, excuse me.

    Warren E. Burger:

    What you’re saying I take it is that the individual in Stanley’s posture may go somewhere and buy or go abroad and bring it back, and it is protected by the privacy in the home under Stanley even thought the seller from who he acquired it in the United States, if he brought it here, might be prosecuted for the sale?

    Thomas H. Kuchel:

    Yes, I would not urge any Rights of the seller of obscenity in this country and there is the question of where the material which Paladini in the case at bar acquired is unanswered.

    Presumably he purchased it abroad and flew back into this country with it in his luggage, but I do not believe it is necessary in order to vindicate First Amendment rights of privacy to protect the seller of obscenity.

    William J. Brennan, Jr.:

    Now, tell me senator.

    We had number of cases that recognized the time and location limitations in exercise of First Amendment right.

    For example if someone couldn’t get up here and make a speech in the middle of your argument from the audience.

    Isn’t there something of that involved here, a distinction between the home and the exercise of the right as you describe at the border?

    Thomas H. Kuchel:

    I do not believe so.

    I believe that —

    William J. Brennan, Jr.:

    How do you distinguish those cases in which you have said there are those limitations in the exercise of First Amendment right?

    Thomas H. Kuchel:

    Would you repeat that Mr. Justice?

    William J. Brennan, Jr.:

    I said how do you distinguish this situation from those cases in which we said there are those limitations on the exercise of First Amendment right, and time and location when we couldn’t make a speech as (Inaudible)

    Thomas H. Kuchel:

    Simply because you were applying a rule of reason to the rights of free speech and I think when you curtail certain out bursts, you did it because —

    William J. Brennan, Jr.:

    Well, I am thinking of the speech that certainly the First Amendment might protect it if delivered out on steps, but not if it was delivered in this Court?

    Potter Stewart:

    All those cases Senator involve do they do not interference with the rights of others, personal or private that is the use of the streets by the citizenry or the use of the courthouse as in the Cox case or so on?

    Thomas H. Kuchel:

    Yes.

    Potter Stewart:

    Quite different from this case?

    Thomas H. Kuchel:

    Yes.

    I misunderstood.

    The Solicitor General asked how could a customs collector counter that traveler’s claim.

    I would say that that is not the basis question on which this Court should deny Paladini his First Amendment rights of privacy.

    There are statutory procedures under which a federal employee, working in customs may ask questions, may make a determination on his own as to what the intent may be, by which a person brings items of personal property back into this country.

    And I — Stanley itself went on to say, we are faced with the argument that prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution.

    That argument is based on a alleged difficulties that proving an intent to distribute or in producing evidence of actual distribution.

    We are not convinced that such difficulties exist, but even if they did, we do not think that they would justify infringement of the individual’s right to read or observe what he pleases because that right is so fundamental to our scheme of individual liberty.

    It’s restriction may not be justified, by the need to ease the administration of otherwise valid federal laws to somewhat — There is no question raised here about obscenity.

    This is a question of the private possession of obscenity for private use.

    We would urge this Court to recognize that a citizen under this constitution ought to have a right in private to read and to possess what he pleases.

    And we would urge that, that right would be unnecessarily and unreasonably constrict if it were made to apply only to his home.

    That right against Governmental Thought Control ought to follow him when he leaves his home, with whatever kind of tract, political or other, goes to his office, and it ought also to accompany him when he returns from a trip overseas.

    Warren E. Burger:

    Let me ask you a one question to pursue a point that the Solicitor General was making.

    I think he made the point of the difficulty of tracking this type of material once it got to into the country.

    Now, under your submission in this case, suppose two weeks after he got it safely at home under your theory that he was protected to bring it there, he then made a 100,000 copies and began to sell them.

    Then under, Roth and the other cases, I suppose your position would be that state or the Federal Government — the state can deal with him at that stage by prosecuting him if they have an appropriate statute?

    Thomas H. Kuchel:

    I would indeed.

    I think he falsified his position when he returned to this country and he should not be covered.

    There is a statute I believe in the State of New York which finds that if there are more than half-a-dozen copies of something that an individual has, that is evidence of the intention, of he who possess it to sell.

    There are many ways that you might credibly judge the intent, with which a person returns to this country with a book that he may have purchased abroad.

    But surely the difficulties involved in the enforcement of the law ought not to be used as a basis to punish the Rights to the First Amendment.

    Just one more sentence, and I’m through; there could be chilling effect, Mr. Chief Justice if the Court please, on an American citizen going to abroad.

    If he wanted to buy a book to read and yet wondered, whether he would be subjected to scorn when he returned to this country because it might be a borderline case that some one in the government would determine was obscene and therefore it would have a chilling effect on the traveling American.

    All in all, we would most respectfully urge, that judgment of the District Court be affirmed.

    Warren E. Burger:

    Thank you, Mr. Solicitor General, do you have anything further?

    Senator Kuchel before you leave, you appeared in this case under unusual circumstances and under our request.

    On behalf of the Court, we want to thank you for you assistance tor us and towards the assistance to the your unknown client to whom, you represented here.

    Thank you.

    Thomas H. Kuchel:

    Thank You, Sir.

    Thomas H. Kuchel:

    I am honored by your words.