United States v. Thirty-Seven Photographs

Customs agents seized as obscene photographs possessed by claimant Luros when he returned to this country from Europe on October 24, 1969. Section 1305 (a) of 19 U.S.C., pursuant to which the agents acted, prohibits the importation of obscene material, provides for its seizure at any customs office and retention pending the judgment of the district court, and specifies that the collector of customs give information of the seizure of the district attorney, who shall institute forfeiture proceedings. The agents referred the matter to the United States Attorney, who brought forfeiture proceedings on November 6. Luros' answer denied that the photographs were obscene and counterclaimed that § 1305 (a) was unconstitutional. He asked for a three-judge court, which on November 20 was ordered to be convened. Following a hearing on January 9, 1970, the court on January 27 held § 1305 (a) unconstitutional on the grounds that the statute (1) failed to meet the procedural requirements of Freedman v. Maryland, 380 U.S. 51, and (2) was overly broad as including within its ban obscene material for private use, making it invalid under Stanley v. Georgia, 394 U.S. 557.

Held: The judgment is reversed and the case remanded. Pp. 367-379.

309 F. Supp. 36, reversed and remanded.

MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded in Part I that § 1305 (a) can be construed as requiring administrative and judicial action within specified time limits that will avoid the constitutional issue that would otherwise be preserved by Freedman, supra. Pp. 367-375.


 * (a) In Freedman, unlike the situation here, the statute failing to specify time limits was enacted pursuant to state authority and could not be given an authoritative construction by this Court and avoid the constitutional issue. P. 369.


 * (b) The reading into § 1305 (a) of the time limits required by Freedman, comports with the legislative purpose of the statute and furthers the policy of statutory construction to avoid a constitutional issue. Pp. 370-373.


 * (c) Section 1305 (a) may be constitutionally applied as construed to require intervals of no longer than 14 days from seizure of the goods to the institution of judicial proceedings for their forfeiture and no longer than 60 days from the filing of the action to final decision in the district court (absent claimant-induced delays). Pp. 373-374.

MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR. JUSTICE BLACKMUN, concluded in Part II that Congress' constitutional power to remove obscene materials from the channels of commerce is unimpaired by this Court's decision in Stanley, supra. Cf. United States v. Reidel, ante, p. 351. Pp. 375-377.

MR. JUSTICE HARLAN concluded that Luros, who stipulated with the Government that the materials were imported for commercial purposes, lacked standing to challenge the statute for overbreadth on the ground that it applied to importation for private use. P. 378.

MR. JUSTICE STEWART, while agreeing that the First Amendment does not prevent the border seizure of obscene materials imported for commercial dissemination and that Freedman v. Maryland, 380 U.S. 51, imposes time limits for initiating forfeiture proceedings and completing the judicial obscenity determination, would not even intimate that the Government may lawfully seize literature intended for the importer's purely private use. P. 378.

WHITE, J., announced the Court's judgment and delivered an opinion in which (as to Part I) BURGER, C.J., and HARLAN, BRENNAN, STEWART, and BLACKMUN, JJ., joined, and in which (as to Part II), BURGER, C.J., and BRENNAN and BLACKMUN, JJ., joined. HARLAN, J., post, p. 377, and STEWART, J., post, p. 378, filed opinions concurring in the judgment and concurring in Part I of WHITE, J.'s opinion. BLACK, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 379. MARSHALL, J., filed a dissenting opinion, ante, p. 360.

Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson and Roger A. Pauley.

Stanley Fleishman argued the cause for appellees. With him on the brief was Sam Rosenwein.