United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), is a United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material. A 6–3 court held that the federal statute governing the seizures was not in violation of the First Amendment as long as the government began forfeiture proceedings within 14 days of the seizure.
The case began with the seizure of the photographs, depicting various sexual positions, from Milton Luros, a Southern California publisher who was returning from Europe. He had intended to use them to illustrate a volume of the Kama Sutra, or failing that, to keep them for his own personal use. A district court panel, guided by the Court's Freedman v. Maryland decision of several years before, rejected his claims that the First Amendment allowed citizens to import obscene material, but found the statute unconstitutional due to the lack of time limits and ordered the Customs Service to return the images to Luros. The government appealed directly to the Supreme Court.
Justice Byron White wrote for the majority, distinguishing the case from Freedman v. Maryland, which had also involved time limits, by noting that it was a federal statute rather than a state one and therefore the Court could give it an authoritative construction. John Marshall Harlan and Potter Stewart also wrote concurring opinions expanding on aspects of the majority holding. Stewart did not agree with the majority that the ban on personal importation of obscene material was consistent with Stanley v. Georgia.
The dissenting justices wrote two opinions. Hugo Black and William O. Douglas took issue with every aspect of the holding, believing the government had no power to regulate obscenity. Thurgood Marshall agreed with them and Stewart that the blanket importation ban was constitutional. That issue would be reconsidered in a similar case two years later, United States v. 12 200-ft. Reels of Film. The case would have little impact on the future development of obscenity law. It has, however, been cited as the first forfeiture case to deal with the question of time limits, and also reaffirmed a principle by which the Court avoids dealing with constitutional questions when it can through alternative constructions.
Background of the case For most of American history, literary and artistic works depicting or even alluding to sexual acts and topics or using profane language, had been banned from publication or distribution, often by both confiscation of the works themselves and criminal prosecution of all individuals involved, following the traditions of English common law on obscenity and statutes at the state and federal levels. At the same time, demand for such materials continued, and the laws were often widely flouted. No defendant or claimant in such an action had ever persuaded a court to entertain the argument that the First Amendment's guarantees of free speech and free expression barred them.
That began to change during the 20th century, in response to social and cultural trends of greater tolerance for literature and art that depicted such proscribed material. In the landmark 1933 case United States v. One Book Called Ulysses, Judge John M. Woolsey of the Southern District of New York ruled that James Joyce's novel Ulysses, chapters of which had been held obscene over a decade earlier when published in a literary review, could not be barred from the United States purely on the basis of its language and content without considering its literary merit.United States v. One Book Called Ulysses, 5 F.Supp. 182 (S.D.N.Y., 1933). Second Circuit judges Learned Hand and Augustus Hand upheld Woolsey on appeal,, 72 F.2d 705 (2nd Cir., 1934) and the book, considered a masterpiece of modernist literature, could be freely published and sold.
Censorship battles continued in the next decades over other works of literature and art, such as Lady Chatterley's Lover, expanding to include films. In 1957, the Supreme Court finally considered a case arising from an obscenity prosecution, Roth v. United States.Roth v. United States, . William Brennan wrote for a 6–3 majority that upheld the criminal conviction but abandoned the century-old Hicklin test in favor of a narrower definition of obscenity. It did not settle the issue, however, and the Warren Court had to hear more cases arising from subsequent prosecutions in the next decade, during which the Sexual Revolution began a more direct challenge to social mores on the issue.
In some of those cases, like Memoirs v. Massachusetts, the justices realized their Roth standard was inadequate, but they could not agree on a new one.Memoirs v. Massachusetts, . The search for a workable legal definition of obscenity led to Potter Stewart's famous line "I know it when I see it", in Jacobellis v. Ohio.Jacobellis v. Ohio, . Other Court decisions restricted the scope under which obscenity could be suppressed. Freedman v. Maryland held that local film boards could not ban films, effectively eliminating them, and had to approve a film within a specified time.Freedman v. Maryland, . In Stanley v. Georgia, the Court held that possession of obscene material in the privacy of the home was constitutionally protected as well.Stanley v. Georgia, .
Underlying dispute In October 1969, Milton Luros, a former illustrator turned adult magazine publisher, returned to Los Angeles from a trip to Europe. Customs agents at Los Angeles International Airport searched his luggage and found 37 photographs depicting naked heterosexual couples having sexual intercourse in different positions. They confiscated them pursuant to Title 19, Section 1305, of the United States Code, a federal law passed in 1930 absolutely prohibiting the importation of any obscene material, but they did not arrest Luros for attempting to violate the law. He later revealed he had planned to use the photos to illustrate a copy of the Kama Sutra, the classic Indian treatise on human sexuality.United States v. Thirty-seven (37) Photographs, 390 F.Supp. 36, 37 (C.D. Cal., 1970).United States v. Thirty-seven Photographs, , 366, (1971), White, J.
Two weeks later, lawyers with the office of United States Attorney William Matthew Byrne, Jr. filed for forfeiture. A week later, Luros filed a counterclaim. He argued that the images were not obscene, and he claimed that both the seizure and the statute authorizing it were unconstitutional. The seizure had violated his First Amendment rights since the pictures were meant to be viewed by adults only within the privacy of their own homes, which the Supreme Court had recently held was protected activity in Stanley. As for the statute, not only was it too vague to be enforceable, it allowed seizures prior to an adversary hearing and did not require that the forfeiture action be commenced within a specified time period, both violating due process requirements, Luros argued.
In district court The law provided for contested forfeitures to be heard by a panel of three judges, similar to an appellate hearing. Since Luros had not been criminally charged himself, the case was an in rem action, with the photographs themselves as the defendants. Stanley Barnes from the Ninth Circuit Court of Appeals was seated along with Central District of California judges Jesse William Curtis Jr. and Warren John Ferguson. They heard arguments from Luros's attorney Stanley Fleishman and the assistant U.S. attorneys representing Byrne's office, and they then issued their decision in January 1970.
Ferguson wrote for the panel, which unanimously ruled for Luros. After rejecting the publisher's argument that Stanley absolutely covered the photographs, since he had admitted to planning a commercial use for them, the judge considered the other element of the First Amendment argument: the right of other adults to receive the book. While quoting from William Brennan's concurrence in Lamont v. Postmaster General to demonstrate his agreement that it was a fundamental right,Lamont v. Postmaster General, , 308, (1965), Brennan, J., concurring, quoted at 309 F.Supp at 37 he nevertheless found it inapplicable to the case, since ruling otherwise would have an economically disparate impact: "The First Amendment cannot be construed to permit those who have funds for foreign travel to bring back constitutionally protected literature while prohibiting its access by the less affluent."309 F.Supp. at 38.
Instead, Ferguson found the due-process claims much more relevant. Freedman had held that any statutory process by which obscene material was seized and potentially suppressed must explicitly require a hearing within a brief period of the time of seizure. While Luros admitted that the government had moved to hold a forfeiture hearing within a reasonable time period of the photographs' seizure, it still took 76 days until the court had heard the case. "All concede that under present statutory procedures it could not have been accomplished any sooner." The delay was also not necessarily due to bureaucratic delays. Ferguson observed that "Section 1305 does not prohibit customs agents from long delaying judicial determination. The First Amendment does not permit such discretion." Having reached that conclusion, he declined to consider Luros's other arguments and ordered the photographs returned following a 30-day stay to allow the government time to appeal if it wished to do so.
Before the Court The government appealed directly to the Supreme Court, as statute allowed it to do so, and was granted certiorari. The Court heard oral arguments almost a year later, on the same day as United States v. Reidel, another case directly appealed from the Central District of California challenging, under Stanley as well, the prohibitions against mailing obscene material to willing adult recipients.
Fleishman argued for Luros and the photographs again. Solicitor General Erwin Griswold appeared for the government.
Decision The Court handed down its decision in the case in May 1971, on the same day as Reidel. In both cases, the majorities had declined to extend Stanley to cover the distribution of obscene material. Justice White wrote both opinions.
In Thirty-seven Photographs, two of the justices who had joined the majority, John Marshall Harlan and Potter Stewart, also wrote concurrences. Hugo Black and William O. Douglas, both of whom had long made it clear they believed the government had no business forbidding obscenity, wrote an extensive dissent critical of all elements of White's opinion. Thurgood Marshall wrote a separate concurrence in Reidel that also explained his reasons for dissenting in Thirty-seven Photographs.
Majority opinion Unlike the situation in Freedman, Justice White observed, the challenged statute was federal, rather than state. Thus, "it is possible to construe the section to bring it in harmony with constitutional requirements."Thirty-seven Photographs, 402 U.S. at 368. He reviewed the legislative history of Section 1305 and found that senators during debate had been concerned about putting so much power in the hands of a low-level official. As a result, the bill was amended to allow for review.Thirty-seven Photographs, 402 U.S. at 369–71.
At that time, no time requirement was included. Perhaps those senators, Justice White speculated, had not seen a need to do so, but, nearly four decades later, there was. In some cases, months had passed between the seizure and the hearing. "[F]idelity to Congress' purpose dictates that we read explicit time limits into the section," he wrote. Otherwise, the only possible resolution to the case was to hold the statute unconstitutional, but that, too, had been prevented by a severability provision. Based on other such statutes with a time-limit provision, Justice White found 14 days to be an apt requirement.Thirty-seven Photographs, 402 U.S. at 371–73.