United States v. Thirty-Seven (37) Photographs

PETITIONER:United States
RESPONDENT:Thirty-Seven (37) Photographs
LOCATION:Duke Power Company’s Dan River Stream Station

DECIDED BY: Burger Court (1970-1971)

CITATION: 402 US 363 (1971)
ARGUED: Jan 20, 1971
DECIDED: May 03, 1971

Facts of the case


Audio Transcription for Oral Argument – January 20, 1971 in United States v. Thirty-Seven (37) Photographs

Warren E. Burger:

We will hear arguments next in Number 133, United States against the Luros, Claimant and Thirty-Seven (37) Photographs.

Mr. Solicitor General.

Erwin N. Griswold:

May it please the court.

This case comes here on an appeal from the three-judge district court in the Central District of California.

The case is a customs seizure case.

The claimant returned to this country by air on October 24, 1969 arriving in Los Angeles.

During customs inspection, the Thirty-Seven Photographs involved here were seized together with certain other items.

All but the photographs have been returned and only the seizure of the photographs is involved here.

It is stipulated and that the photographs were intended to be incorporated into a hard covered book and I quote from page 16 of the record in the stipulation, which book describes candidly a large number of sexual positions.

On October 31, I may say the photographs have been lodged with the cleric of the court.

On October 31, 1969, the District Director of Customs advised the claimant Luros that the matter had been referred to the United States Attorney for forfeiture action.

On November 4, the claimant’s attorney demanded the return of the photographs.

On November 6, 13 days after the arrival in Los Angeles, the United States started this action for forfeiture, under title 19 of the United States Code, Section 1305(a), a statutory provision which is printed at pages 2-4 of our brief.

Eight days later, the claimant filed an answer and counter claim contending that the photographs were not obscene and that the statutory provision was unconstitutional.

He moved for a three-judge court because he sought a declaration and injunction against the enforcement of the statute.

And in order to convene, a three-judge court was entered on November 20, 1969.

The hearing was held on January 9, 1970 and the three-judge court’s opinion was issued on January 27, 1970.

The court treated the motion for injunction as a motion to dismiss and assumed that the pictures are obscene.

That issue has never been adjudicated and is not directly involved here.

What the court did was to rule that the statute is unconstitutional on its face and as applied.

It reached this conclusion by an application or perhaps one can fairly say by an extension of this court’s decision in Stanley against Georgia, in 394 U.S.

Although, the claimant had stipulated that he imported the pictures for commercial use.

The court held that he had standing to attack the statute on the basis of its application to importation for private use, to which it said the Stanley case applied.

The court also held the statute unconstitutional under Freedman against Maryland in 380 U.S. Because it failed to guarantee that any restraint on allegedly obscene material would be imposed for only a specified brief period prior to judicial resolution of the issue of “obscenity”.

The first question, I wish to present is that with respect to Stanley against Georgia.

That case was won as the court observed in the opinion of first impression.

The court wrote a careful opinion which was narrowly limited.

But in less than two years, it has proliferated in the lower courts, afar beyond anything that was presaged in this court’s opinion.

From protection to a man in his home, it has blossomed out to cover the whole world.

That extension is involved in this case in the Reidel Case which is the next on the calendar, and in several other cases which we have felt it necessary to bring to the court and in many others which are pending in lower courts awaiting this court’s decision.

Erwin N. Griswold:

It’s also involved in the case of Burn against Carolexis (ph) at number 83 which was argued last term and re-argued on November 17th.

Stanley against Georgia is obviously an important case, one that will be discussed for many years to come.

It has roots in the Boyd case of 8 years ago and Justice Brandeis’s dissent in the Olmstead case, in Justice Harlan’s dissent Peo against Ullman, in Justice Stewart’s memorandum in Mapp against Ohio and in this court’s decision in Griswold against Connecticut.

It is not the worst for the fact that its conclusion has never been firmly bound to the text of any particular constitutional provision.

That fact may indicate however that those sound in result, the verbalization may be subject to further refinement as applied to particular new situations.

In the Stanley opinion itself, the court seemed to cover a case such as this.

It distinguished in earlier cases on the ground that they and I quote, “Deal for the most part with the use of the mails to distribute objectionable material or was some sort of public distribution or dissemination,”.

That appears in page 561 of 394 U.S.

It referred to other cases as dealing and I quote, “With the power of the state and federal governments to prohibit or regulate certain public actions taken or intended to be taken with respect to obscene matter.

Citing prosecutions for sale and distribution,” that likewise is on page 561.

It referred to this court’s decision in the Roth case as involving and I quote, “The regulation of commercial distribution of obscene material.”

That’s on pages 563 and 564.

And finally the court specifically stated that and again I quote, “Roth and the cases following that decision are not impaired by today’s holding,”.

This seems clear enough and it seems clearly applicable to the present case which after all involves importation and area traditionally subject to close control by Congress and importation for commercial purposes.

The difficulty arises because of some passages in the opinion which I think must be regarded as passing references and not central to the decision itself.

The court did say that and I quote, “It is now well established that the constitution protects the right to receive information and ideas.”

And a little later on in the same paragraph, the court said that and I quote, “This right to receive information and ideas regardless of their social worth is fundamental to our free society.

That is fairly strong language but even that refers to the recipient and does not assert any such right to distribute.”

A little later, the court referred to “the transmission of ideas.”

But the essence of this court’s decision, we submit is found in it’s concern for Mr. Stanley.

It referred to a man sitting alone in his own home and in his own house.

It referred to his right to satisfy his intellectual and emotional needs in the privacy of his own home.

The majority of the court used some First Amendment language.

Other members of the court preferred to express the conclusion in Fourth Amendment terms.

Perhaps it could fairly be said here that the Fourteenth Amendment would suffice.

But it was Mr. Stanley who was protected in the privacy of his own home, it was not the materials.

They are still expressly subject to Roth.

Indeed it was only last Thursday in the mailbox’s case that the court reiterated its previous determination that constitutionally protected expression is separated, and that is the word use by the court in quoting from one of its earlier opinions is separated from obscenity.

Mr. Stanley was found to be protected within wide limits, within the privacy of his own home.

Even on that however, there are I think some limits and this maybe shown by a case which crossed my desk last week and is before the court.

Erwin N. Griswold:

This is Reidel against the United States No. 6266, this term where a man was legally arrested in his own apartment.

If you remember in Stanley, there was a valid search warrant to search the apartment.

At the time of his arrest, a sort of shotgun was in plain view and this was seized by the police.

His conviction for possession of an unregistered sort of shotgun was affirmed by the Eight Circuit Court of Appeals.

Apparently, it is not the privacy alone which is the test, but privacy in association with ideas regardless of the character of the ideas.

The significant point, I think, is that it is not the material which is protected by Stanley, just as sort of shutdown was not protected in the Biddle case.

It is the man in his house, it was not the obscene film which was the object of this court’s concern, it was the knock on the door, the intrusion on privacy under a warrant which did not in anyway referred to the material actually seized.

This was indeed very closely parallel to situation in Mapp against Ohio where a similar results were reached quashing of the conviction though by a some what different root.

As one author has said, quoted on page 13 of our brief, “The privilege recognized in Stanley is in short, a shield for the private citizen not a sword for the prevail.”

There is, we submit no right to be let alone in a custom search at the nation’s borders.

At that point, a man is not in the privacy of his own home or sitting in his own house to use the phrases used by the court in the Stanley opinion, Mr. Stanley was accused of a crime, here, no crime is charged.

The procedures in rem against the merchandise.

Congress is exercising its undoubted power to exclude what it deems not just to the nation as a whole and which in itself can claim no First Amendment protection.

Once beyond the custom’s barrier, materials cannot be retrieved no matter how they are used. The importation here was for a commercial purpose but this court’s decision should not turn on that fact.

What is important here was that there is no invasion of privacy, no entry into a man’s home in either case.

I now turn to the second question covered in our brief.

The court below did not hold that the statute was unconstitutional with respect to commercial importation.

Instead, it held that it would be unconstitutional if applied to an importation for private use relying on Stanley.

Warren E. Burger:

Solicitor general, before you leave the Stanley, have all the Lower Court, have they been uniformed in giving what you call this standard due Stanley?

Erwin N. Griswold:

All but one I believe Mr. Justice, it’s very widespread, it’s recited at length in the appendices to the brief of the respondent in this case, I believe there is one case which has narrowed the extension of Stanley.

It has been from our point of view a very insidious disease.

The court below held that it would be unconstitutional to apply the statute in this case, to an importation for private use relying on Stanley and then held that the claimant here could attack the statute on that ground even though his importation was avowedly a commercial one.

As I’ve indicated, we think the court was wrong in its decision as to importation for private use.

I don’t think that there is legitimately a difference between importations for commercial or for private use or that the Stanley case so requires.

But that question is involved in the United against 1200 foot reels of film, no. 364 of this term and in the United States against various articles of obscene merchandise, number 706 this term which are now pending on jurisdictional statement but there is no justification we submit for denying the application of the statute to an avowed commercial and imported merely because there may be a question in another application of the statute.

The statute itself has a clear and broad Separability Clause applicable not only to provisions of the statute but to application to persons and places and this should be applied here.

It would be improper to strike down the entire statute, we submit as the court below did at the behest of one to whom it validly applies.

And finally, I come to the question arising under Freedman against Maryland and under the recent application of that decision in the mailbox case of last week.

Warren E. Burger:

Before you go on with that Mr. Solicitor General, let me see if I clarify that last point.

Your statement goes there’s no difference in an importation case.

Warren E. Burger:

We put in another way there.

The purpose, the intended use is irrelevant in an importation case I take it —

Erwin N. Griswold:

That is our position although we don’t have to sustain that in this particular case.

Warren E. Burger:

Then the casual tourist coming back with the same material for the private use in his home is not protected by Stanley at least you argued because Stanley protected it only when it was in his home.

Erwin N. Griswold:

When it was in the privacy of his own home, sitting by his own fire.

The man’s home is his castle idea seems to me to be central to the Stanley decision.

However I point out that that issue is not involved here directly because this importation was avowedly for commercial purposes.

Warren E. Burger:

What you’re saying is that Stanley isn’t an obscenity case at all.

Erwin N. Griswold:

I’m saying that Stanley is an obscenity or most at all but I put in the sort of shotgun to shows that Stanley doesn’t protect everything in the home.

What it really shows is that Stanley doesn’t protect the material.

You have to do a lot of editing to get the references for the First Amendment out of the Stanley 2145 wouldn’t you?

Erwin N. Griswold:

Yes Mr. Justice but i —

But you’re embracing the concurring opinion of the three members of the court put in on the Fourth Amendment.

Erwin N. Griswold:

No Mr. Justice, I don’t think — I repeat, there’s a lot of First Amendment language in Stanley but I don’t know that the case has been rested on the First Amendment and if so, I don’t know the clause or the wording in the First Amendment which is applicable to it and which covers it.

It can be rested it seems to me only on some sort of a penumbra over the First Amendment and I find penumbras rather cloudy I think and it isn’t clear to me — I am satisfied with the result in Stanley but it isn’t clear to me just what the verbalization is which firmly supports it.

Potter Stewart:

Did you say Mr. Solicitor General that we have two cases ending on jurisdictional statements, so I didn’t raise a question of which would cover the Chief Justices —

Erwin N. Griswold:

With respect to importation for private purposes, there maybe even more than two, I’ve been trying to hold these off but when Lower Courts won’t grant injunctions and won’t grant stays, and the consequence and in rem matter is, that it is imported and you lose jurisdiction, I have found it necessary to file a number of jurisdictional statements which I hope can simply be held in advance until the issue is determined.

With respect to the Freedman problem, the procedural system involved in this case affords we submit, the protection with freedman and its progeny require.

The government bears the burden of proof throughout, not merely the burden of proof but the burden of taking action.

It must secure judicial condemnation of any material it seeks to buy.

The periods of time involved are the shortest which are compatible with sound resolution of the question of obscenity.

That is shown by the situation in this case where the importation was on October 24, 1969.

One week later, the matter was referred to the United States Attorney for forfeiture action and to get this government to move within one week is a remarkable achievement and the claimant was so advised.

On November 6 or 13 days after the importation, the United States commenced the present action in the court.

Any further delays had been required by judicial proceedings and had been affected by the fact that the claimants sought a hearing by a three-judge court.

If the claimant had been willing simply to go to trial on the issue of obscenity, as a case cited in a footnote, and our brief shows, the whole matter could’ve been disposed off within two to three months at the outside.

Although fixed time limits are not prescribed by the statute.

Statutory provisions do require custom’s agents to report their actions on these matters “immediately,” to the collector.

And when the matter is referred to the United States Attorney, another statutory provision directs him to start and prosecute the proceedings “forthwith without delay.”

The latter provision is Section 1604 in Title 19 of the U.S. Code.

Erwin N. Griswold:

The only gap in this procedure is with respect to the collector’s transmission of the case to the United States Attorney.

This is however covered by a Bureau of Customs’ circular cited in the footnote to page 26 of our brief, which was developed by the customs’ bureau and the Department of Justice for the purpose of eliminating delays.

Now, that circular provision, it seems to me is worth looking at.

It’s the footnote on page 26, it provides that the first examination shall be made “as soon as possible,” after it’s available for customs’ examination.

If the first examining officer concludes that it is something that should be looked into, it shall be reviewed by the District Director or his delegate “no later than the following business day.”

If at any review the material is determined not to be obscene, it shall be released.

If at any review the material is determined to be obscene, and assent to forfeiture shall be solicited “forthwith.”

If dissent is not forthcoming “within one week,” or if assent is declined, the material shall be referred to the United States Attorney immediately.

And if it is felt that the material is probably obscene but there is no clear precedent for the determination, the material shall immediately be forward for review by the bureau, by the most expeditious means.

This procedure worked well in this case both administratively and judicially.

Moreover, the materials here have a sort of timeless quality.

They are not like news or even like a current motion picture film.

I have no doubt that they have commercial value if they can be use commercially.

And I do not think that value can be said to be lessened by the lapse of time.

There will no doubt always be audiences for such items.

As they were in Greece and (Inaudible).

I do not say this to excuse delay because I do not think there was in fact inappropriate delay on this case or any delay that is held invalid by the Freedman case.

It is simply that I think that the time pressures on these facts may well be less than they would be in some other case not now before the court.

The period here was we submit completely consistent with prompt yet responsible administrative and judicial proceedings on the issue of the obscenity of the material seized.

And for these reasons, because Stanley against Georgia does not apply to this case where no privacy of the home is involved, because the importation here was commercial and the claimant should not be allowed to assert any defect in the statute, if there is one in its application to importation for private use, and because the requirements of Freedman against Maryland were met here, the judgment below should be reversed.

Byron R. White:

May I ask Mr. Solicitor General, under this circular, the review for obscenity, I gather as simply a ex-parte unilateral sort of thing.

Erwin N. Griswold:

This is an administrative within the treasury —

Byron R. White:

Nothing like the administrative review we dealt with and booked and —

Erwin N. Griswold:

Nothing like that all and it is solely for the purpose of making the necessary and appropriate administrative determination as to whether the matter shall be referred to the United States Attorney for starting judicial proceedings forthwith.

There is no binding determination of any sort within the treasury except that the matter shall be forwarded to the U.S. Attorney.

Warren E. Burger:

And part of the obscenity of the (Inaudible)

Erwin N. Griswold:

No, Mr. Justice, the obscenity has not been passed on by the Lower Court and is not involved here.

Warren E. Burger:

If you prevail this case it goes back?

Erwin N. Griswold:

It would go back to the trail court presumably a one judge district court then for determination of that issue as it was done in another case which is cited in one of the footnotes in our brief.

Warren E. Burger:

Mr. Fleishman, you may proceed whenever you’re ready.

Stanley Fleishman:

Mr. Chief Justice, may it please the court.

This case arose when Mr. Luros was returning from Europe.

He had in his luggage the 37 photographs involved in this case.

He also had the two odd books, one, a Rollingsons and one of Peter Fendi and he also had a girlie magazine.

The customs’ inspector made his snap judgment and found all of these items to be obscene.

After we intervened in the case as the government did as the Solicitor General says, did return everything except the 37 photographs.

It was stipulated that the photographs were intended to be used in the Kama Sutra; a book which the customs used to think was obscene but no longer believes to be obscene.

We call to the attention of customs at the time by letter that the use of the book would be private in the sense that it was to be distributed only to consenting adults under such circumstances that it would not offend the general public.

This was not to be distributed broadside.

Potter Stewart:

How was that to be accomplished?

Stanley Fleishman:

Well, it can be accomplished by inviting people who are interested in buying an illustrated Kama Sutra to write in and say that they would like to purchase such a book and to have adequate safeguards that the person is an adult.

Under those circumstances, it’s a private person who privately elects to read a book illustrated.

Warren E. Burger:

The certification that you speak of the protection is that the purchaser must certify that he’s over 21 or over?

Stanley Fleishman:

An adult that it defers.

Of course that’s not in occasional although it was in the case, it’s all let into the customs and now pleaded.

Our pleading is that —

Warren E. Burger:

Is that relating now to Mr. Justice Stewart’s questioning to you when you called it protection?

Stanley Fleishman:

Well, Your Honor, one can protect it in a lot of ways.

I have clients who require adults to send in a statement with some kind of proof as to their age. Some clients require, for example, that they send in a copy of their driver’s license.

So that there are ways where you can assure yourself that it will in fact be to consenting adults only.

The point that I’m making is that this case really is a privacy case in the same sense if we will, that it was privacy in Mr. Stanley’s situation.

Potter Stewart:

Where is that in the stipulation or anywhere else around?

Stanley Fleishman:

Page 19, Your Honor there is a copy of my letter and it states that it was to be distributed in the fashion that I have indicated.

Potter Stewart:

Well, that’s just —

Stanley Fleishman:

The material is not being imported for distribution to minors nor to be trusted upon unwilling dealers and it is spelled out a little bit more fully in our answer to the complaint and our cross complaint which also sets forth the intention.

Potter Stewart:

It’s not that that’s pleading and that’s a letter from counsel for one of the parties.

There’s nothing under stipulation —

Stanley Fleishman:

Well, the letter was part of the stipulation.

Yes that was attached to the stipulation Your Honor.

That is exhibit —

Potter Stewart:

As an exhibit or was it incorporated in everything and all their allegations here true?

Stanley Fleishman:

Well, this is Appendix C, Your Honor to the stipulation.

The stipulation said that I wrote this letter and that this was the content.

So as we come knowing in this case, it’s stipulated that customs was told that this was the intended purpose of the distribution.

Now, the case Your Honor is not the case as set forth in the government’s brief of the power to regulate customs and foreign trade.

We conceive that of course, government does have a broad power to exclude materials all we say is that government in this area is an all area as circumscribed by the First Amendment.

And that it may not pass a Shotgun Law such as the Customs Law here which prohibits an adult from bringing in which satisfies his; the emotional needs will satisfy some informational needs that he may have nor does it permit that we submit the government to keep such material from circulating under the controlled circumstances that we have here.

The government’s argument really comes down to this.

The government states that, “Roth held in the first instance that obscenity was outside of the protection of the First Amendment and then as if nothing else has happened since Roth, as if there hadn’t been really dozens and dozens of cases with refinements and nuances and cutbacks, as if nothing had happened since Roth, they mechanically argued that obscenity is outside the protection of the First Amendment and can be handled exactly as any other merchandise.

That is the burden of the government’s argument.

The Solicitor General here interestingly calls to our attention the Biddle case which seems to me to show what is obvious that a book or other matter of communication cannot be treated and never has been treated by this court, the same as shotguns or gambling devices or the like.

I’d like to spend, if I may a moment in terms of Roth and what has happened since Roth because I think that we cannot fairly evaluate Stanley without such a background and I agree completely with the Solicitor General that Stanley is a very important case and a case which will be looked at for many years to come.

As I stated, in 1957 —

Warren E. Burger:

Mr. Fleishman, do you mean that in the sense that it’s important in its impact in obscenity per se?

Stanley Fleishman:

Yes, important as an important obscenity case.

I think that Stanley —

Warren E. Burger:

I don’t think that’s what the Solicitor General said, at least I didn’t hear him say that that was an important case in obscenity.

Stanley Fleishman:

Well, I believe he was suggesting that it was an important case and that it would be debated for a long period of time.

I think it will be discussed for a long period of time and I think that just as the lower courts have embraced it as holding essentially that adults, consenting adults have the right to read what they want to that it will be important for that reason too.

Thurgood Marshall:

And to limit that and he has the right to read what he want is his own good law alone?

Stanley Fleishman:

Oh, I would not —

Thurgood Marshall:

If anyone else is in the Stanley other than that, this is bachelor with one person at home.

Stanley Fleishman:

That’s —

Thurgood Marshall:

It was found in his desk drawer in his bedroom.

Stanley Fleishman:

It was, Your Honor.

But I would submit in all deference Mr. Justice Marshall that just as a bachelor can get some information and can satisfy some of his emotional needs by viewing such a film, a married person may also get it.

I suspect that Stanley is not limited to bachelor’s reading or viewing of such material.

The government in Burn initially stated that it was not only in the privacy of one’s home but also in an office.

That’s what Burn says.

When the government wrote Burn, they said it was the privacy of a home and office.

Stanley Fleishman:

Well, I would suspect that a person could take a book and go to the park and get whatever information or emotional satisfaction there just as well.

The crucial point as I read and read Stanley is that government does have legitimate interests and those will be protected completely but that those legitimate interests are narrow.

One of the legitimate interest is not ever to tell adults what they should read or what they should see and it doesn’t matter whether they see it in a private boot walk, they see it in a friend’s home.

If they see it in their office, the important thing is, that it’s not thrust upon an un-willing audience and that we have adequate of protection to see that the material is not distributed to minors.

And those are we submit, the synthesis of all that has happened since Roth.

Now at the time of Roth, the court was faced really with choices as the court has always faced.

There were three arguments that were being put forward.

I was here then and I was making an absolutist argument.

I was saying that obscenity was absolutely protected.

There was, and before the house, the whole (Inaudible) arguments that obscenity had a very broad reach in terms of minors or portions of a book condemned the (Inaudible).

And what the court did, it seems to me was to strike a balance and I must say in retrospect, the balance was one that although I didn’t agree with it then as I look back has a logic to it.

The balance that was struck was to try and get at the legitimate interests of society in this whole area and there was an enormous amount of protection given to such material in the Roth case even as the court said that “obscenity” was outside of the protection of the First Amendment.

And almost everything that this court has done since Roth with a few unhappy exceptions but almost everything that has been done since then has been to, first of all narrow the reach of the obscenity laws and secondly to expand and of course the other side of the same coin to expand the First Amendment protection afforded to sex material.

The cases came down procedurally.

Searches and seizures were narrowly cutback so that a lot of material would not be suppressed under Roth.

The (Inaudible) requirement was found necessary in Smith.

In case after case, this court has said that this person or that person, this organization or that organization, it was not a Fifth party to determine what is and what is not obscene until finally in Rowen, the court came down and really sad, yes we’re entitled to have censorship and the censorship by 200 million people.

Each person is his own censor and responsible to himself.

And we don’t need postal inspectors or customs inspectors or district attorneys or police officers to make this determination.

The truth of the matter is that this court has said even that or suggested, I know that Mr. Justice Brennan suggested and the earliest case, the Kingsley Boot case that a judge without a jury wasn’t qualified.

There was a thought that we need juries and yet we see within many jury cases coming up that the juries also are not able to make the sensitive judgment.

So jury verdicts have been overturned by this court which was necessarily then forced to act as a super censor to everybody’s discomfort and so this court has been attempting I submit, and properly to extricate itself from having to sit as a Board of super censors.

And what has come down out of all this, it seems to me is to get away from this business of reading a book and looking in a movie and said yes, this is good or this is bad.

It’s futile.

I think in that sense, that the Stanley opinion really synthesizes all of the legitimate interest and says a number of things.

First of all, it says that government simply has no business telling people what to read or view.

All of the traditional arguments are no good; protect his morality, that’s his business.

The government shouldn’t be protecting the morality of individuals.

Anti-social conduct, no proof of that at all and besides, when the conduct appears, it’s time enough to act.

In short, the court seemed to have said, now let’s get to it and what is it that we’re concerned with?

Stanley Fleishman:

We’re concerned with minors, we have said so in the Ginsburg against New York file, minors can be protected.

We’re concerned with trusting it upon unwilling audiences because the truth of the matter is that for many people to have a strong, explicit, sexual material thrust upon them, is very offensive not too unlike.

perhaps the analogy in Chiplinsky which is thrusting and has some kind of a physical, emotional reaction.

But beyond that, to say that government has the right to tell adults that they ought to read this because they may become aroused sexually or because they may have some fantasies, we know now, that that was a futile task which really bred a great deal of lawlessness below because the standards were always impossibly vague and there wasn’t always an enormous of hypocrisy.

And so it was that after some 14 years of dealing with Roth and with a number of suggestions as to where we were going.

Mr. Justice Brennan in Jacobella (ph) suggested back in 1964 that perhaps it would be wise or in better, if the states were to pinpoint their legislation at minors which then seemed to be the major concern of society.

Then in the Ginsburg case, Ralph Ginsburg, another legitimate state interest, governmental emerged and that was the business of thrusting it upon an unwilling audience and then finally in the Sam-Ginsburg case, this court said that minors could have a different standards.

So that this Court before Stanley had carved down, it seems to me and had suggested that most of it in Redrup had carved out legitimate state interest and had said that here the government has a legitimate concern and the other side of the coin, we submit is that beyond that, there is no legitimate concern.

And that I believe is where Rowen also seems to have a relevance to this because Rowen, it’s not mentioned by the government at all here but Rowen also has the two sides.

Rowen says that if a person doesn’t want something to cross the threshold of his home by mail, he can say no to that and he has the broadest power in saying no.

Warren E. Burger:

Well, did the court say that or did the court merely indicate at whole that Congress permissibly has such a statute.

Stanley Fleishman:

Well, the court of course held that Congress might permissibly passage a statute but the opinion said that the right of mailer to send into a home ends at that point where the mailer says no.

Beyond that, has a right to communicate —

Warren E. Burger:

What you’re making is the court didn’t invent that concept —

Stanley Fleishman:

That is to —

Warren E. Burger:

— for constitution.

It didn’t violate the constitution.

Stanley Fleishman:

Although, in all fairness, I think the court did kind of invent it in Ginsburg which preceded the legislation that was somewhat comparable.

But of course, it’s true that Section 4009 was then enacted by Congress and this court merely said that that was a permissible exercise of the rights.

Now, it’s within this framework, as I say that we come to Stanley, the Solicitor General says, he doesn’t know what provision of the First Amendment is applicable.

Over and over again, the court said it was the First Amendment and we’re dealing with pure speech.

We’re really dealing with pure speech; we’re talking about the right of a person to just read.

It’s got nothing to do with any of the conduct cases in any way.

We’re not talking about anything that’s peripheral.

We’re saying that the court has said that a man has the right to satisfy his curiosity, to get information from sexual material by reading what is explicit as explicit as it can be.

So that, I don’t see how the opinion really could’ve been any clearer that it was bottomed on the First Amendment.

The entire argument about the right to receive information and ideas, the court wasn’t right talking abstractly, I suppose, we were talking within the framework of Stanley.

Stanley had a film which was explicitly sexual and the court said he had the right to possess it, he had the right to view it and he had the right to receive it.

All of that is traditional, clean First Amendment arguments.

So that the attempt of the government now to bootleg in a Fourth Amendment argument is really as has been suggested before an attempt on the part of the Solicitor General to make the concurring opinion, the majority opinion.

Stanley Fleishman:

It was before the court, Mr. Justice Stewart wanted to go off on the search and seizure privacy aspect.

But the court didn’t.

The court went off absolutely on the First Amendment.

The text which precedes footnote 11 of the opinion states, that this case is decided under the First and Fourteenth Amendments and then the footnote points out the kind of illustration that the Solicitor General gave and that as Mr. Justice Marshall said, that does not mean that a person has the right of privacy in his home to have such things as sort of shotguns or dope or other things, but he does have the right under the First Amendment to have books and films because they are protected expression.

Warren E. Burger:

Mr. Fleishman.

I think you may proceed.

Stanley Fleishman:

Mr. Chief Justice, comment was made earlier of the fact that most of the lower courts considering Stanley have concluded that it has the meaning that we attribute to it here.

And I believe there’s a good reason for that.

I believe truly that Stanley as we interpret it, represents an idea whose time has come.

Virtually, everyone of the thoughts expressed in Stanley has found reflection in the Lockhart Commission report which was a study as Your Honors know of some two years.

For example, in Stanley, it was stated that there was no evidence that the reading or viewing of obscene material had any anti-social effect.

That’s exactly what the commission concluded.

The commission stated, empirical investigations supports the opinion of a substantial majority of persons professionally engaged in the subject that exposure to sexually explicit materials has no harmful causal role.

I go on to say that it appears to be a usual and harmless part of the process of growing up in our society and a frequent and non-damaging occurrence among adults.

The commission report also stated that this explicit material which was thought to be totally valueless in fact does have a great deal of value that many persons find that they are benefited by having exposure to this material, and I suspect that this was part of what was meant in Stanley when the court said that Mr. Stanley had the right to satisfy his emotional and his intellectual needs by viewing this motion picture film which was plainly extraordinarily explicit.

The commission also found that a majority of people in this country believed that adults are to be able to read and view this explicit material if they so choose.

The commission also found that a majority of the people believed that minors ought not be exposed to such material.

The commission addressed itself to the question of morality which has been discussed here.

And also came up with the conclusion and with some arguments that I think are persuasive, that historically and consistent with the First Amendment, there simply is no power in government to try and control the morality of individuals or society by reason of what goes into their heads as opposed to the conduct of persons.

The argument has been made here in the brief and by the Solicitor General that you have to have a stopping of this material at the board and because otherwise you don’t know how the material will be used.

That’s exactly the argument that the state made in the Georgia case, Georgia argued that if the state was powerless to get the material while it was at the home, then there would be difficulty of law enforcement and this court said that has never been thought to be a sufficient reason to interfere with the great rights that we’re being asserted in Stanley and those great rights again were the right to satisfy an intellectual and emotional need of the individual.

Now there is a statute, an interesting provision which I believe also supports the argument we are making here.

Although the government has sought to use it somewhere differently.

The provision I have reference to is the so called discretionary clause.

There is in this customs law a provision which says that the secretary of the treasury in his absolute discretion can permit the so called “classics” to be brought into this country, if they are brought in for non-commercial purposes.

There is no limits on the discretion that can be exercised.

Now, the government argues, of course that provision doesn’t mean anything now because under the opinions of this court, if the obscenity is a classic, it has redeeming social value and therefore it’s protected so there’s no need for the exception.

Hugo L. Black:

If it’s a what?

Stanley Fleishman:

If it’s a classic, it is a provision in the statute would says that classical obscenity may be brought in and to say if it’s obscene for an intellectual, it’s all right but if it’s obscene for a truck driver, presumably it’s not.

Hugo L. Black:

Is that in the statute.

Stanley Fleishman:

The statute says that secretary of the treasury may permit obscene classics to be brought in for private —

Hugo L. Black:

(Inaudible) does it give a definition of the classic?

Stanley Fleishman:

It does not.

And the way it’s been applied really has been strictly on a class basis Mr. Justice Black.

That is to say, if the secretary of the treasury and his friends think its good, then it can be brought in but if it’s below their intellectual standards, then presumably it’s not a classic and it may not be brought in.

Warren E. Burger:

Don’t you think you could have a little more precise definition of a classic on that in the abstract?

Stanley Fleishman:

Not really, the way it’s been applied by the secretary of the treasury.

Warren E. Burger:

Oh, it’s not for a criminal statute but I think don’t you think it could be a little bit less expensive than you suggest it.

Stanley Fleishman:

Perhaps, this was broad argument Mr. Chief Justice.

The argument has been made by the Solicitor General that the appellee here does not have standing to attack the statute on its face because, as it quite properly points out we did stipulate that the material was to be used commercially under the limitations that we have spoken about.

The Solicitor General doesn’t deny the general rule that where there is a statute which affects First Amendment Rights that you don’t have to show that the particular conduct is covered by the person who raises the fact, that this statute is unconstitutionally broad because of its possible chilling effects upon freedom of speech.

But the Solicitor General says, there’s an additional requirement, the statute must not only be overbroad but it must be vague and he says this statute of course is a model of clarity and there is no vagueness in this customs law.

Now, I submit that if we do have to have both over breadth and vagueness, we have over breadth and we do have vagueness.

I doubt that there is a federal statute that is more vague than the obscenity statute, plus the fact that the lying that the government suggest is a lying between commercial and non-commercial without any attempts to refine how that might be applied.

For example, there are cases which say that it’s really not commercial as a person just charges what it costs him for example, one would look at that as possibly commercial or possibly not commercial.

The truth of the matter is that the obscenity — this customs obscenity law is vague as well as being overbroad and that the appellee does in fact have the standing to challenge it and that the court was quite the court below was quite proper in stating that if there was any way that the statute could be applied in violation of constitutional rights, then it should be stricken down.

I hasten to add that we also contended below and we contend here that the court below should have reached the other view, also that it was not only unconstitutional for the reason given that it would interfere with the right of consenting adults to import obscene material but it was also unconstitutional, we contend because it interfered with the specific conduct that appellee was talking about.

That is to say to put the pictures into a hard-covered book for distribution to consenting adults only.

That we believe is the correct construction that the limitations rather that Congress has and that the any statute that went beyond that would be unconstitutional.

So that, it is our position that the court below was plainly right on the ground that it decided the case and that it was also in order to go beyond that.

I see my time is up and I would only say that on the point of procedure, the Freedman versus Maryland, the vice that this court found in the mailbox case with regard to time is equally applicable in this case.

Thank you Mr. Chief Justice —

Warren E. Burger:

Mr. Solicitor General, you have about three minutes left.

Erwin N. Griswold:

In the time I have available, I want to make only two points.

First in my principal argument, I said that I was not aware of any cases which had taken our view with respect to Stanley and on that I was wrong, I think it is a mechanic of the Solicitor General’s office that I see the case if we lose and don’t see the cases if we win.

There are in fact three decisions of Courts of Appeals, all of which I think can be distinguished somewhere on their facts, one of them is a clear case of pandering and another could be said to be pandering.

But the Fourth Circuit, the Fifth Circuit, and the Ninth Circuit have all held that Stanley should not be enlarged and with the court’s permission, I will submit a memorandum to the clerk which gives the citations in these cases.

I would like only to read from Judge Sobeloff’s opinion in United States against Melvin in 419 U.S.

The cases Stanley against Georgia decided this year and relied upon by the appellant is not to the contrary.

There the Supreme Court merely stuck down the statute as unconstitutional, insofar as it made criminal, the mere private possession of obscene material in one’s own home, the decision did not deal with congressional power to regulate the interstate transportation of obscene material by common carrier.

Erwin N. Griswold:

And then finally, there is a three-judge district court decision in–

Hugo L. Black:

That is a customs case?

Erwin N. Griswold:

No, that happens to be a transport by common carrier case which is like the next case we’re going to present to the court which is mail but I think the principle of the extended Stanley is exactly parallel in all of them.

Potter Stewart:

Do you have the citations of the three cases —

Erwin N. Griswold:

Yes, Mr. Justice in the United States against Melvin, the one to which I just referred 419 federal second, 136 a Fourth Circuit decision, Fragus against United States 428 F.2d 1211, a Fifth Circuit decision and plainly involving pandering and Miller against the United States 431 F.2d 655 a Ninth Circuit decision and then I would like to refer to the decision of a three-judge district court in Georgia, Gable against Jenkins, 309 federal supplement 998, which also took a narrower or a non-expensive view of Stanley.

It was appealed to this court and this court affirmed the decision below per curiam in 397 U.S 205 and that should surely have been cited in our brief.

I would like only to say in conclusion that I think there is verbal explanations for these words in the Stanley opinion which have caused us trouble.

The court in Stanley said and spoke twice of the right to receive information or ideas but in the Roth decision, the court said that obscenity is not ideas or information and so that language in Stanley may have been very carefully chosen to exclude the right to receive obscenity.

It’s true that in the Stanley case, the court said–

Hugo L. Black:

Can I have that citation– .

Erwin N. Griswold:

The affirmance Mr. Justice is in 397 U.S. 205.

Two members of the court who thought the probably jurisdiction should be noted but the court affirmed the decision.

In the Stanley case, it is true that the court said it would not decide whether the movies in Stanley had ideational content that is constituted information and ideas under the facts of that case because of the risk to Stanley’s First Amendment rights inherent in that inquiry.

But that again, returned one to Stanley’s right not to have his thoughts pride into.

We need not concede and do not that the right to receive information and ideas referred to in the Stanley opinion included the films there involved.

Warren E. Burger:

Thank you Mr. Solicitor General.

Thank you, Mr. Fleishman.

The case is submitted.