United States v. Thirty-Seven (37) Photographs

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

DOCKET NO.: 133
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

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

Facts of the case

Question

Media for United States v. Thirty-Seven (37) Photographs

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.