United States v. Thirty-Seven Photographs/Concurrence Stewart

Mr. Justice STEWART, concurring in the judgment and in Part I of Mr. Justice WHITE'S opinion.

I agree that the First Amendment does not prevent the border seizure of obscene materials sought to be imported for commercial dissemination. For the reasons expressed in Part I of Mr. Justice WHITE'S opinion, I also agree that Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, requires that there be time limits for the initiation of forfeiture proceedings and for the completion of the judicial determination of obscenity.

But I would not in this case decide, even by way of dicta, that the Government may lawfully seize literary material intended for the purely private use of the importer. The terms of the statute appear to apply to an American tourist who, after exercising his constitutionally protected liberty to travel abroad, returns home with a single book in his luggage, with no intention of selling it or otherwise using it, except to read it. If the Government can constitutionally take the book away from him as he passes through customs, then I do not understand the meaning of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.