United States v. Orito

PETITIONER: United States
LOCATION: Georgia State Capitol

DOCKET NO.: 70-69
DECIDED BY: Burger Court (1972-1975)

CITATION: 413 US 139 (1973)
REARGUED: Nov 07, 1972
DECIDED: Jun 21, 1973
ARGUED: Jan 19, 1972

Erwin N. Griswold - for appellant on reargument
James M. Shellow - for appellee
R. Kent Greenawalt - for appellant

Facts of the case


Media for United States v. Orito

Audio Transcription for Oral Reargument - November 07, 1972 in United States v. Orito

Audio Transcription for Oral Argument - January 19, 1972 in United States v. Orito

Warren E. Burger:

We'll hear arguments next in 70-69, United States against Orito.

Mr. Greenawalt you may proceed whenever you are ready.

R. Kent Greenawalt:

Mr. Chief Justice and may it please the Court.

This case is on direct appeal from the District Court for the Eastern District of Wisconsin.

The court dismissed an indictment charging that appellee had transported 82 reels of obscene film interstate by means of a common carrier.

The court held that the relevant statutory provision, 18 U.S.C. Section 1462 is on its face constitutionally invalid because it is overbroad in forbidding the use of common carriers for the non-public transportation of obscene material

The government appealed directly to this Court pursuant to the old Criminal Appeals Act.

Like Reidel and Thirty-Seven Photographs and the case just argued, this case arises from an expansive interpretation of Stanley versus Georgia by the District Court.

Precise issue in this case, is the constitutionality of the statute that prohibits the knowing use of a common carrier for the interstate transportation of obscene material.

We believe that Reidel and Thirty-Seven Photographs have effectively settled the issues raised here.

Indeed, the judge who decided this case has subsequently sustained the constitutionality of this section after those cases were handed down.

That is not cited in our briefs and the citation to that case is United States versus Zacher 332 F. Supp. 833.

William J. Brennan, Jr.:


R. Kent Greenawalt:

833, yes Your Honor.

In trying to evade the clear import of Reidel and Thirty-Seven Photographs, appellee makes two different arguments.

One is that even when transportation is for the purpose of sale, Congress cannot prohibit the use of common carriers to transport obscene materials interstate.

The second argument assumes that commercial transportation maybe forbidden, but contends that the statute is invalid as it applies to non-commercial transportation and that this impermissible overbreadth renders the entire section invalid on its face.

It is the government's position that the statute is constitutional in both its commercial and non-commercial applications.

If however, it is considered unconstitutional in some or all non-commercial applications, it is our position that the statute should not be declared invalid on its face, but limited to its permissible application.

I turn first to the argument that even transportation for sale is constitutionally protected.

In Reidel, as Court refused to recognize a constitutional right to distribute or sell obscene materials and reiterated the principle of Roth that obscenity and its distribution are outside the reach of the First Amendment.

In Thirty-Seven Photographs, six justices squarely held that importation of obscenity for commercial distribution is not constitutionally protected.

Appellee concedes that the First Amendment would not protect the commercial distributor of obscene materials who wishes to import such materials or send them through the mails, but he argues that the same commercial distributor who wishes to transport materials in interstate commerce is constitutionally protected.

Congress' plenary power to prohibit not just materials from flowing in interstate commerce, has long been a cornerstone of this Court's interpretation of the Commerce Clause.

In Gibbons versus Ogden, the Court said that Congress' power over commerce among the states is vested, “as absolutely as it would be in a single government.”

And in the lottery cases as well as many others, it has sustained absolute prohibitions against items of commerce judged harmful.

In Hope versus United States which is cited in our briefs, where the Court sustained the White Slave Traffic Act, the Court assumed the constitutionality of these provisions and used those as a premise to reach the result in that case.

Congress' powers over commerce are of course, limited by the First Amendment, but the First Amendment is also relevant to what Congress can preclude from the mails or forbid from being imported.

Appellee cites a number of cases for the proposition that the government has special powers over mail because it operates the postal system.

But in this First Amendment context at least, these cases have no authority after Blount versus Rizzi and Lamont versus Postmaster General.