RESPONDENT: 12 200-ft. Reels of Super 8MM. Film
LOCATION: Wisconsin State Capitol
DOCKET NO.: 70-2
DECIDED BY: Burger Court (1972-1975)
CITATION: 413 US 123 (1973)
REARGUED: Nov 07, 1972
DECIDED: Jun 21, 1973
ARGUED: Jan 19, 1972
Erwin N. Griswold - for appellant
Thomas H. Kuchel -
Facts of the case
Media for United States v. 12 200-ft. Reels of Super 8MM. FilmAudio 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 --