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


  • Oral Reargument – November 07, 1972
  • 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.

    R. Kent Greenawalt:

    The government can no more exclude protected materials from the mail on the basis of their content, but it can exclude them from commerce.

    And conversely if commercial distribution of obscenity through the mails can be prohibited, so also can any sort of transportation in interstate commerce for commercial purposes.

    Assuming that Congress may validly prohibit the use of common carriers traveling interstate for the commercial distribution of obscene materials, the order of the District Court in this case should be reversed either if transportation for personal use may also be prohibited or if invalidity as to transportation for personal use does not require striking down the entire section.

    We believe the statute is constitutional in it’s non-commercial as well it’s the commercial applications.

    But I consider the overbreadth point first because we believe it’s clearly controlled by Thirty-Seven Photographs.

    First, I would like to clear up what seems to be an issue from appellee’s brief, but is not really an issue.

    We do contend that it is inappropriate to hold this section invalid on its face, but we do not contend that appellee lacks standing to make that claim.

    Appellee does have standing to make the claim that invalidity in some applications renders the section invalid for all applications, whether or not he is a commercial distributor.

    If on the other hand, as we contend, invalidity in some applications would not render the statute invalid as to all applications, then the District Court could determine in subsequent proceedings in this case, the purpose of the transportation here.

    In neither of that is this Court required to determine appellee’s purpose from this record, so that really is not an issue at this point in the case.

    In Thirty-Seven Photographs, the same six Justices who held that importation for commercial purposes could be prohibited, also held that the District Court in that case was wrong to strike down the entire section in its application to commercial importation because importation for personal use might be constitutionally protected.

    Mr. Justice White’s majority in plurality opinion said, “the proper approach was not to invalidate the section in its entirety, but to construe it narrowly and hold it valid in its application to Luros” and Justices Harlan and Stewart concurred on the same ground.

    As these opinions indicate, a holding of facial invalidity for overbreadth is not appropriate when a statute can be clearly narrowed to constitutional applications in a way that will eliminate virtually all of the possible chilling effect on protected communication.

    Potter Stewart:

    In this case, Mr. Greenawalt all we have do far as the facts go is the indictment which appears on page 1, and 2 of the Appendix, is that right?

    R. Kent Greenawalt:

    Yes, Your Honor.

    Potter Stewart:

    There are no affidavits of — ?

    R. Kent Greenawalt:

    As to the nature of these materials.

    Potter Stewart:

    Exactly or as to the — not only as to the nature of the material but as to the purpose of the defendant’s transportation or —

    R. Kent Greenawalt:

    That is correct.

    Potter Stewart:

    We have the indictment and then a motion to dismiss and that’s it.

    R. Kent Greenawalt:

    That is right, yes sir.

    As far as the overbreadth point is concerned, the language of Section 1462 involved in this case is virtually indistinguishable from the language of Section 1305 (a) involved in Thirty-Seven Photographs.

    Section 1462 involved here forbids the use of common carriers to transport obscenity interstate without respect to purpose, just as Section 1305 (a) that provided forfeiture for importation of obscene material without respect to purpose.

    Section 1462 dates back to 1897 and it is the primary prohibition against interstate transport of obscene materials in the federal law.

    It is clear that Congress would prefer this section sustained in its valid applications rather than being declared invalid on its face.

    And this case does not involve the kind of interrelated set of administrative provisions such as were present in Blount versus Rizzi and Freedman versus Maryland.

    In those kinds of cases, the Court declines to rewrite an administrative setup that defines certain provisions constitutionally invalid, but here we have a straightforward criminal statute that can be validly applied in certain applications and plainly the lower court erred in striking down the entire section on its face.

    We believe the court also erred in quite a different respect by deciding that interstate transportation of obscenity for personal use could not constitutionally be proscribed.

    We now get back to territory that’s been covered in the previous argument to some extent.

    Reidel and Thirty-Seven Photographs made clear as had Roth that obscenity is not protected by the First Amendment and congressional power to decide what goods may cross state lines extends to this unprotected material.

    R. Kent Greenawalt:

    What the plurality said in Thirty-Seven Photographs with respect to foreign commerce, a passage that the Solicitor General read to you in his argument, “Obscene materials may be removed from the channels of commerce even though intended solely for private use is equally true of interstate commerce.”

    The majority opinion in Stanley versus Georgia indicates that the government may not invade a person’s home to ascertain if he possesses forbidden material.

    Warren E. Burger:

    I take it what you are saying there that if Mr. Stanely for example wanted to give the materials involved in the Stanley case to someone else, he would be violating the statute if he sent it through the mails, but he could get in his car and drive from wherever he lived to some other place and deliver it to a friend as a gift?

    R. Kent Greenawalt:

    Our position would be as a matter of constitutional law that, that could be forbidden.

    This section covers only transportation by common carrier and 1465 would be the relevant federal section for that, I think that in terms of transportation for sale or distribution, yes.

    Now then I suppose you have a nice statutory question as to whether if you give a book to a friend, that’s distribution or not, within the terms of the statute?

    Warren E. Burger:

    But in — judge to that statute would it indicate that it was intended for — to deal with the commercial distribution?

    R. Kent Greenawalt:

    That is clear Your Honor that that was the purpose of the stature and certainly there would be a strong statutory argument that, that would not be distribution within the meaning of the statute.

    Byron R. White:

    How about a gift to the Library of Congress?

    R. Kent Greenawalt:

    For somebody who didn’t start in the District of Columbia, well, I would think that is not distribution.

    It is our position that if it is obscene material and someone used a common carrier to give the material to the library of Congress then unless you read in a statutory exception for that kind of thing that could constitutionally be covered.

    Thurgood Marshall:

    What about in Texas (Inaudible) they the bill, book across the middle of a street.

    You know in Texas, Arkansas and Texas, come down at the middle of the main street?

    R. Kent Greenawalt:

    Yes, yes that’s right.

    We would say that constitutionally it could be covered.

    For similar reasons that we think that if there was a town that which there maybe, in which Canada and United States would split the border, we think that that could be covered as well.

    Potter Stewart:

    Mr. Greenawalt, earlier in your arguments you gave us a citation 332 F. Supp. 833, as I got it at least, and I set to that and I think it’s not the correct citation.

    During the lunch period, could you check it?

    R. Kent Greenawalt:

    Did you find it Mr. Justice Douglas?

    Potter Stewart:

    Just tell me the once, if you could.

    R. Kent Greenawalt:

    Yes, certainly.

    Well, it is our content that Stanley versus Georgia —

    William O. Douglas:

    It’s not the right citation.

    Potter Stewart:


    R. Kent Greenawalt:

    Alright, I am sorry I will check that —

    does not require the government to stand aside for the channels of commerce are employed by individuals who are interested in constitutionally unprotected material.

    Moreover, the government does have a special interest in the use of common carriers which are open to the general public and closely regulated in the public interest.

    If persons choose to use such carriers, they must do so in ways not deemed inconsistent with the public interest.

    Practically, there are substantial reasons for allowing the government to forbid the use of common carriers to transport obscenity irrespective of purported purpose, reasons that we do not believe were applicable on Stanley.

    Each state legislature has the power to set it’s on policy with respect to the sale and purchase of obscene material.

    R. Kent Greenawalt:

    One state may forbid the sale of all constitutionally unprotected material.

    Another may permit their sale, as Oregon has chosen to do.

    If the federal government is powerless to stop transportation across the state lines —

    Warren E. Burger:

    I think we will pick up at that point after lunch.

    [Luncheon Break]

    You may continue.

    R. Kent Greenawalt:

    Mr. Chief Justice and may it please the Court.

    I had mis-transcribed one of the page numbers and it’s 332 F. Supp 883, instead of 833 as I have said before.

    I was in the middle of the argument that this statute is constitutional as it reaches non-commercial transportation and I have made the basic argument that the material is unprotected and therefore Congress can prohibit its passage in interstate commerce and I turn to some of the practical reasons that support that conclusion.

    And I have mentioned that state legislatures may forbid constitutionally unprotected material from being sold, but that other states may permit their sales such as Oregon has chosen to do and that if the federal government is powerless to stop transportation across the state lines, citizens of a state that forbids the purchase of pornography can circumvent that policy of that state by buying material in a more permissive jurisdiction and bringing it back to their own state.

    More significant perhaps in terms of actual impact on prosecutions is the fact that if only commercial transportation maybe stopped, it may sometimes be difficult to prove a commercial motive although that is the real reason for the transportation and I remind you of the Solicitor General’s argument about the difficulties of drawing that particular line.

    Also, in this situation, a holding of constitutional protection of private transportation would cast a jeopardy, scores of convictions under 1462 where transportation was in fact for commercial purposes, but in which the jury determination of guilt of course, did not require a finding to that effect.

    Finally, there is the danger that materials taken by common carriers will be seen by other members of the public who maybe offended.

    Potter Stewart:

    Just going back to your last point, you say that there have been scores of convictions under the statute?

    R. Kent Greenawalt:

    I am informed that there are approximately 25 prosecutions a year under 1462, anything in that range.

    Potter Stewart:

    We would be concerned here of course, of people who were serving sentences I suppose?

    R. Kent Greenawalt:

    Yeah, and then all problems about collateral attack —

    Potter Stewart:

    We are not talking about convictions of 30 years ago.

    R. Kent Greenawalt:

    Well, except that the court’s rule is now about mootness or rather liberal toward people that have been convicted of crimes and their ability to challenge crimes that might have adverse effects in some future proceedings.

    Potter Stewart:

    The collateral challenge?

    R. Kent Greenawalt:

    Yeah, even though they are out of prison.

    Potter Stewart:

    You don’t know how many —

    I suppose a typical prison sentence would be like, well, what is it maximum five years?

    R. Kent Greenawalt:

    For first offenders, there is maximum of ten years for second defender, but I would guess, as I think you are suggesting that the usual sentence is not terribly long.

    Potter Stewart:

    I was just wandering about the practical impact of the argument?

    R. Kent Greenawalt:

    I don’t know about the average sentences, or how many people are still in jail.

    The wisdom of trying to stop transportation for private use may be argued well and in fact, the government does not prosecute those whom it believes are transporting for personal use.

    But it is our contention that there is no constitutional bar to set the prosecution because Section 1462 is patently constitutional as to use of common carriers to transport obscenity for sale and both because its coverage of transportation for personal use is also constitutional and because the proper approach, if the section is unconstitutional in some applications is to limit the section rather than invalidate it on its face, the order of the district court in this case should be reversed and the indictment should be reinstated.

    I would like to reserve the remainder of my time.

    Warren E. Burger:

    Very Well, Mr. Greenawalt.

    Warren E. Burger:

    Mr. Shellow.

    James M. Shellow:

    Mr. Chief Justice, may it please the Court.

    My friend misconceives the thrust of our argument.

    We do not seek any derivative rights under Stanley.

    We do not seek any correlative rights under Stanley.

    The appellee in this case is charged with the private possessory transportation of obscene material.

    We assert that if Stanley holds any meaning, it says that one cannot be prosecuted for the private possession of obscene material and that’s precisely what’s charged in this case.

    The private possession of obscene material and the First and Ninth Amendment underpinnings of Stanley protect the man who is carrying the obscene or pornographic book which he is reading on an airplane just as it would protect him if he were reading it in his home provided that he doesn’t read it in such a way that he exposes it to persons who don’t want to see it or who would be offended by it.

    Warren E. Burger:

    Let me see if I follow you.

    Suppose instead of a book it was pictures and he had a suitcase full of them on the airplane, a private possession I suppose in one sense, would you say that’s protected.

    James M. Shellow:


    Warren E. Burger:

    500 of those pictures?

    James M. Shellow:

    Yes, if he had 500 pictures in his luggage on an airplane.

    Warren E. Burger:

    All the same pictures.

    James M. Shellow:

    Well, the only —

    I submit that the only inference that can be drawn from 500 pictures all the same, if he is going to go into the business and do something with these pictures and if this Court wishes to draw the line and say that 1462 applies only to commercial transportation, then I should think it would be a fairly easy matter of proof that in fact, this was a commercial venture.

    If however he has one picture, or ten pictures and he has them in his pocket on the airplane, then he is protected.

    If he has one picture or ten pictures in his luggage on the airplane, I submit this is protected under the direct folding of Stanley.

    Stanley doesn’t have to be extended.

    Stanley was not actually viewing obscene film at the time the officers arrived with a search warrant, Stanley was merely possessing them with the intent at some future date to view them, just as the man on the airplane, whether in his pocket or in his luggage is possessing the material with an intent at some future time to privately enjoy his collection of erotica.

    Similarly it’s no extension of Stanley to protect the possession in his suitcase on the airplane.

    He is on the airplane, the suitcase is on the airplane, this is as protected as it would be, as if it were in Stanley’s house or in the traveler’s pocket.

    As we move to a more attenuated examples, I think, Stanley still confers direct protection.

    The man who moves from a residence in California to a residence in Wisconsin and shifts by common carrier, his collection of pornography where he is the shipper and the consignee, he is protected, the shipment is protected.

    This is a private use in a private setting.

    It’s as protected as if he stayed in his residence in California and the man who takes the magazine to his hunting lodge in another state by common carrier.

    Each of these are examples of private possessory transportation.

    The key isn’t the possession.

    There is no distribution of it and we submit it that that’s precisely the interdiction of 1462.

    1462 permits such persons to be prosecuted and flies directly in the mandate of family.

    James M. Shellow:

    We assert that to the extent that Stanley or some of the opinions in Stanley would, we found these two opinions, Stanley would have found Stanley’s right on a Fourth Amendment claim as my friend has asserted that it might be, to that extent our interstate traveler is protected as well.

    In Katz this Court said that the Fourth Amendment protects people not places.

    In Mancoosi (ph) this Court said that the Fourth Amendment protects places where the individual has a reasonable expectation and he will be free from governmental intrusion.

    And we submit that each of these considerations applies to the man who has a pornographic picture in his pocket, the film in his luggage as he travels from one state to another.

    William H. Rehnquist:

    Mr. Shellow.

    James M. Shellow:

    Yes, Mr. Justice Rehnquist.

    William H. Rehnquist:

    Would it be fair to say that the position you are now taking is inconsistent with the language earlier mentioned by Justice Marshall in the prior case from the plurality opinion in the Thirty-Seven Photographs case?

    James M. Shellow:

    I don’t think so.

    I view Thirty-Seven Photographs not only as pure private possessory transportation, but as a case in which Mr. Luros asked the affirmative assistance of the government in bringing this material into the country, and perhaps the distinction can be drawn between he who imports privately and seeks to have some government customs agent authorize his importation than the man who seeks nothing from the government and merely seeks to go to his hunting lodge in Utah.

    That is how I will distinguish it, that is how I believe it doesn’t conflict with Thirty-Seven Photographs with the plurality opinion.

    We then come to the question, can this Court narrowly construe Section 1462 so that the statute and the ambit of the statute applies only to commercial — to the distributive process, and I am not certain whether the Court would approach it from the point of view of the commercial aspects or the distributive aspects.

    Certainly, one wouldn’t be prosecuted who brought in his luggage from Milwaukee to Washington the exhibits which form the basis of his argument and yet that is of course within the ambit of 1462 as well.

    We start I think in looking as to whether or not this Court can construe the statute narrowly to exclude private possessory transportation at the words of the statute.

    The words of the statute clearly do not have any reference to commercial or distributive for functions unlike Section 1465.

    We look to the words of the statute and we remember the recent words of Mr. Justice Stewart in Camp versus Sorana (ph) in which he stated the principle of strict construction of criminal statutes demands that some determinant limit be established based upon the actual words of the statute and there are no determinant limits that can be placed upon the actual words of this statute.

    This statute would not require construction, it would require rewriting.

    What this Court would be doing would be adding an additional element to the offense which was enacted by Congress in Section 1462 of Title 18.

    The distinctions of course between what the appellee asserts you cannot do in this case and you did do in Thirty-Seven Photographs.

    Alright, but number one, Thirty-Seven Photographs is not a criminal proceeding, it’s a civil forfeiture proceeding.

    Secondly, you don’t have the same kind of severability clause to work with.

    The severability clause which applies to Title 19 permits the Court to severe out unconstitutional applications.

    The severability clause which is appended to Title 18 as we recite in our yellow brief does not permit the severing out of unconstitutional applications.

    It’s a different kind of severability.

    Perhaps more important is the matter that we touched on tangentially in our brief and now I would like to elaborate on it in more detail.

    The Court will recall that in its opinion in Blount versus Rizzi, the issue was raised as to whether or not the legislation there could not be saved by a construction which would provide for judicial review and this Court noted that that was what the Post Master sought.

    He sought to avoid precisely that, and so the court wasn’t free to impose a constitutional meaning on the section there involved.

    In this case, this isn’t a case in which Congress in Section 1462 never considered the commercial applications of it.

    When this statute was first enacted in 1897, the final clause which prohibits one who takes from a common carrier obscene material, was limited to commercial distribution and it was in that statute that it said whoever takes from a common carrier with the intent to sell, distribute, or circulate.

    That was the way the Act was in 1897, that was the way it was reenacted in 1905, and when it went into the 1907, 1908, 1909 general revision of the penal laws, the joint committee, the joint committee of the Senate and House which reported it out, reported it out changed from the earlier statute in two material respects.

    The first respect, the committee added to the first clause, the importation clause that it must be for the purpose of disposing of the material.

    James M. Shellow:

    That importation would not be unlawful unless it was for the purpose of disposing, and retained in the final clause this with intent to sell, distribute, or circulate.

    When it came to the floor and was reported out on the floor of the house, Congressman Houston amended the Senate proposal, the joint proposal by striking both of those provisions and 1462 for practical purposes appears now at least as far as this aspect is concerned as it was amended by Congressman Houston of Tennessee.

    But Congress on at least three occasions and probably four if you consider the predecessor bill that was passed by the Senate and not by the House, on four occasions has addressed itself to whether this statute should be limited to commercial activity and on at least three occasions, and it said no.

    So I think that in the face of that kind of legislative history, we can’t distort the language of a statute, we can’t add an additional element to this offense.

    We can’t indict individuals or offenses which were not enacted by the Congress.

    The construction which would narrow 1462 to commercial applications would pose all sorts of problems of truth.

    As the Solicitor General pointed out in his previous argument, as my friend pointed out in this argument, to limit the construction would impose an unreasonable burden on the government in how you go about proving that it was for commercial purposes and will the self-proving declarations of defendants be sufficient to defeat a prosecution further, should this Court then enact some sort of presumption as appears in 1465 to make proof easier.

    1465 is of interest by its terms would apply also to transportation by common carriers.

    The legislative history of 1465 suggests that it was to fill the loophole and to permit prosecution of private carriers, but certainly nothing in the language of the statute is that restrictive.

    So would this Court then enact a presumption so that if you had five or more copies of a magazine or two copies of one magazine and three of another, then this is presumptive evidence for the commercial purpose.

    Also, I submit that the statutes which are enacted, most of the statutes, which are enacted which prohibit some form of transportation of something around the country from one state to another.

    Warren E. Burger:

    Can you think of any statute Mr. Shellow that permits a jury to draw inferences of the kind that are involved in drawing inferences about commercial purposes from the numbers of more carriers?

    James M. Shellow:

    Oh certainly, I think that 1465 if they don’t have the requisite number to permit the instruction on the presumption then I think the jury can be instructed, you may consider, although you do not need to the number of magazines possessed by this defendant.

    Warren E. Burger:

    Then maybe I misunderstood you.

    I thought you were suggesting that it imposed an impossible or a great unrealistic burden to let a jury decide the issues like that.

    James M. Shellow:

    It poses problems.

    I don’t know, I guess, perhaps that was a little straw, but for example in the post Leary cases that without the presumption of unlawful importation and knowledge thereof, the prosecutions have been few and far between and I would submit that it’s a difficult proof, it’s not impossible.

    Harry A. Blackmun:

    Mr. Shellow.

    James M. Shellow:

    Yes sir.

    Harry A. Blackmun:

    Your opposition referred to this recent case by Judge Gordon, I haven’t read it, do you have any comment on changing his position?

    James M. Shellow:


    First, it’s an interesting case.

    The indictment in Zacher is identical to the indictment in this case, that is that both Zacher and Orito were charged with the same transportation at the same time and the same place.

    It appears they were both on the same airplane, it’s difficult to determinate whose luggage it was, that appears to be the case.

    As far as Judge Gordon’s opinion is concerned, Judge Gordon misses the thrust of our argument and to be perfectly fair, this argument was never made to Judge Gordon, this concept of possessory transportation, it wasn’t necessary.

    It wasn’t necessary that it’d be elaborated in the detail in which I presented to you for it was not necessary that he thread his way to Reidel and Luros, Reidel and Thirty-Seven Photographs.

    I think that Judge Gordon misconceives the thrust of our argument, although we did not argue Zacher.

    He misconceives the thrust of in it that we are not asking that this Court or that court extend Stanley one iota.

    Zacher and Orito were engaged in a private possessory transportation, and Stanley protects those who privately possess.

    Neither of them were distributing, no inference of distributing can be drawn.

    James M. Shellow:

    Their activity is protected by the First and Ninth Amendments. As we thread our way through Reidel and Thirty-Seven Photographs, we note, but do not rely upon the fact that those who ship or carry on common carriers in interstate commerce obscene material do not seek the affirmative intervention of our government for their enterprise, for their private enjoyment of obscenity.

    It maybe that the government and this Court can hold that if you wish to enjoy obscenity in the privacy of your home or the privacy of your railroad car, that’s alright, but don’t ask us to help you with it.

    That is don’t seek the affirmative assistance of the government in permitting you to enjoy your sordid reading habits.

    I submit that on that basis some distinction can be drawn between Reidel, Thirty-Seven Photographs, Gable versus Jenkins which in a sense there the defendants — plaintiffs in that case, there they sought the two acquired derivative rights.

    They sought to take Stanley and say that because Stanley has the right to read, we have the right to sell to him, because Stanley has the right to possess, we have the right to deliver.

    The court made short script to that argument.

    I don’t think that the opinion, this one sentence opinion in Gable versus Jenkins poses any problems to us for we do not seek any derivative benefits.

    We place ourselves squarely within Stanley, we claim that those who possess obscene material as long as they possess it in a way in which it is unlikely that it will be exposed to unwilling adults or exposed to children or placed in front of an unwilling public, as they long as they privately possess it in an area in which there is reasonable expectation of privacy, then they are protected.

    They are protected by the Ninth Amendment and by the First Amendment and to the extent that Stanley is the Fourth Amendment question by the Fourth Amendment as well.

    Warren E. Burger:

    Do you suggest that Stanley would have been decided in the same way if Mr. Stanley have had 100 or 200 copies of whatever it was involved there.

    James M. Shellow:

    We submit that if Stanley had 100 or 200 copies and he was prosecuted under the Georgia statute that makes it unlawful to possess for purposes of sale, that the prosecution could not have been blocked by the Stanley opinion, that is the Stanley opinion does not expend to those who possess for purposes of sale and it more than extends to those who possess for purposes of distribution, leaving aside for the moment the thorny question of what this does this Court do about private distribution.

    The issue of, may I send my obscene book by common carrier to the library of Congress, may I bring with me in my luggage the obscene exhibits before I argue to this Court.

    Leaving aside that thorny question Stanley does not reach the commercial distributor, Stanley does not reach the one who has not yet engaged in his commercial distribution, but is possessing repertory to that distribution.

    So I find that as no problem.

    What I find is the basic problem here is that 1462 extends to purely private possessory transportation and the statute from its legislative history, from the words that are used, from the fact that it was amended at the same time, that 1465 was enacted that Congress was perfectly aware of the problems of private possessory transportation.

    That the statute can’t be construed such as to emasculate the clear congressional intent that it was intended to apply to what this court has held to be protected.

    I submit that when there is a statute in which the intent of the framers clearly and unequivocally demonstrate that the statute is intended to impose criminal sanctions upon protected conduct, and the statute cannot be permitted to stand.

    Thank you very much.

    Mr. Shellow, Mr. Greenawalt, you have little time left.

    R. Kent Greenawalt:

    Mr. Chief Justice and may it please the Court.

    I have only a few very brief comments.

    I don’t think this issue was raised by this case, but I think that what may seem to be the troublesome hypothetical of someone who carries in his pocket one obscene book, there is I think a question as to whether the statute that covers that person.

    The language in the statute reported in the 1955 revision I believe was deposit with the common carrier and the change in language was designed to extend the venue of provision so that people could be prosecuted at jurisdictions which they travel through as well as the place that they had put the materials on the carriers.

    So I think there might be an argument that use of a common carrier doesn’t cover that situation.

    I don’t say that; that’s right, and we don’t think —

    Thurgood Marshall:

    Mr. Greenawalt what if he sent a box of 25 or 100 books all different and all obscene and sealed and sent by common carrier to his country home?

    R. Kent Greenawalt:

    That — and assuming that it’s in another state, the country home, that is clearly covered by the statute and we think that the statute is constitutional in that application.

    We go back to our original argument on that point, and this possible distinction I am suggesting, we don’t suggest it in constitutional intervention.

    Thurgood Marshall:

    Suppose the owner — the sole owner of the moving carrier, ships by his company the same way, the statue would cover, wouldn’t it?

    R. Kent Greenawalt:

    Well, if the owner of a common — I mean if a guy drives his own bus whether that’s still a common carrier, I am not sure, so there would be that question as to whether it’s a common carrier we are putting.

    R. Kent Greenawalt:

    If the owner of the railroad gets on his own train, then that’s covered.

    Thurgood Marshall:

    No, no, you can’t get out that easy.

    This one has — it should (Inaudible) from the interstate commerce commission.

    The Stanley Transportation Company and they ship a box of 100 of the same, his own books that nobody has ever seen, but him to his country home which is 16 inches on the other side of the state line, he has violated this test.

    R. Kent Greenawalt:

    If that’s still a common carrier, yes, he has and I think it would be, no.

    Byron R. White:

    And you would think the statute would cover a situation where a man calls out to a bookstore and says please send me over —

    please mail to me a copy of so and so and it’s mailed to him?

    R. Kent Greenawalt:

    There is a separate provision for mail.

    I mean, if its’ set by — that’s 1461.

    Byron R. White:

    So you don’t think that would be constitutional?

    R. Kent Greenawalt:

    Oh absolutely, I mean Reidel makes that clear I should think.

    Byron R. White:

    Well, Reidel was going (Inaudible).

    R. Kent Greenawalt:

    Oh well, yes we do think that if there is not a right to sell, there is also not a right to buy.

    Byron R. White:

    So that —

    R. Kent Greenawalt:

    We think that prosecution could be brought against the purchaser.

    Byron R. White:

    So you say that the statute wouldn’t be invalidated by Stanley if it authorized seizure of an allegedly obscene material in the mail is addressed to a user and would have Stanley rights if he ever got it inside his house?

    R. Kent Greenawalt:

    That is correct.

    In other words, if you set off a book company asking them to send you something, and it was sent to you, we don’t think there would been a constitutional bar to constitute the purchaser as well the seller.

    On the severability point, I’d like to suggest the language of United States versus Jackson 390 US 570, in an opinion by Mr. Justice Stewart, at footnote on page 585, he says — the Court said, whatever relevance in such an explicit clause may have in creating a presumption of severability, the ultimate determination of severability will rarely turn the presence or absence of such a clause.

    We think it’s clear that whatever this specific language of the severability provision, basically the question is trying to ascertain congressional intent as to what –the remainder of the statute preserved or not.

    Finally, as to the legislative history that’s been suggested there seems to me the major defect with the argument as has been made is that the conclusion doesn’t follow up on the premise.

    It is clearly true that Congress does mean to cover non-commercial transportation, but it does not follow from that; but if it has to have only commercial transportation or nothing at all, that it would choose nothing at all and that really is the question here on the overbreadth point.

    I might mention that because I think in the sense this supports another point we were making that this provision, well first of all, the original 1897 statute did not, if you deposited the material in the common carrier, there was no requirement of wanting to sell it or distribute it, it was only the person who took the material from the common carrier that had the limit that my brother has mentioned.

    So that is relevant to receiver, not to the person who deposited the material.

    Secondly, in 1909 when this change was made, a similar change was made as to Section 1461 and the congressional record in the House indicates that the reason that the change was made was because it was very difficult to prove the element that was required in showing the purpose of a person who was receiving the material from the common carrier.

    So that the words were eliminated to eliminate a difficult element of proof and I think that supports our argument that to draw that constitutional distinction does create a difficult element of proof which Congress has not wished to impose and which is not required by any of this Court’s decision.

    Thank you.

    Warren E. Burger:

    Thank you Mr. Greenawalt.

    The case is submitted.