# United States v. Thirty-Seven Photographs/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Harlan Stewart
* Dissenting Opinion Black
United States Supreme Court
402 U.S. 363
United States v. Thirty-Seven Photographs
Argued: Jan. 20, 1971. --- Decided: May 3, 1971
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
* I dissent from the judgments of the Court for the reasons stated in many of my prior opinions. See, e.g., Smith v. California, 361 U.S. 147, 155, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (1959) (Black, J., concurring); Ginzburg v. United States, 383 U.S. 463, 476, 86 S.Ct. 942, 950, 16 L.Ed.2d 31 (1966) (Black, J., dissenting). In my view the First Amendment denies Congress the power to act as censor and determine what books our citizens may read and what pictures they may watch.
I particularly regret to see the Court revive the doctrine of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), that 'obscenity' is speech for some reason unprotected by the First Amendment. As the Court's many decisions in this area demonstrate, it is extremely difficult for judges or any other citizens to agree on what is 'obscene.' Since the distinctions between protected speech and 'obscenity' are so elusive and obscure, almost every 'obscenity' case involves difficult constitutional issues. After Roth our docket and those of other courts have constantly been crowded with cases where judges are called upon to decide whether a particular book, magazine, or movie may be banned. I have expressed before my view that I can imagine no task for which this Court of lifetime judges is less equipped to deal. Smith v. California, supra, (Black, J., concurring).
In view of the difficulties with the Roth approach, it is not surprising that many recent decisions have at least implicitly suggested that it should be abandoned. See Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). Despite the proved shortcomings of Roth, the majority in Reidel today reaffirms the validity of that dubious decision. Thus, for the foreseeable future this Court must sit as a Board of Supreme Censors, sifting through books and magazines and watching movies because some official fears they deal too explicitly with sex. I can imagine no more distasteful, useless, and time-consuming task for the members of this Court than perusing this material to determine whether it has 'redeeming social value.' This absurd spectacle could be avoided if we would adhere to the literal command of the First Amendment that 'Congress shall make no law * * * abridging the freedom of speech, or of the press * * *.'
Wholly aside from my own views of what the First Amendment demands, I do not see how the reasoning of Mr. Justice WHITE'S opinion today in United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822, can be reconciled with the holdings of earlier cases. That opinion insists that the trial court erred in reading Stanley v. Georgia, supra, 'as immunizing from seizure obscene materials possessed at a port of entry for the purpose of importation for private use.' At 376, 91 S.Ct., at 1408. But it is never satisfactorily explained just why the trial court's reading of Stanley was erroneous. It would seem to me that if a citizen had a right to possess 'obscene' material in the privacy of his home he should have the right to receive it voluntarily through the mail. Certainly when a man legally purchases such material abroad he should be able to bring it with him through customs to read later in his home. The mere act of importation for private use can hardly be more offensive to others than is private perusal in one's home. The right to read and view and literature and pictures at home is hollow indeed if it does not include a right to carry that material privately in one's luggage when entering the country.
The plurality opinion seems to suggest that Thirty-Seven Photographs differs from Stanley because 'Customs officers characteristically inspect luggage and their power to do so is not questioned in this case * * *.' At 376, 91 S.Ct., at 1408. But surely this observation does not distinguish Stanley, because police frequently search private homes as well, and their power to do so is unquestioned so long as the search is reasonable within the meaning of the Fourth Amendment.
Perhaps, however, the plurality reasons silently that a prohibition against importation of obscene materials for private use is constitutionally permissible because it is necessary to prevent ultimate commercial distribution of obscenity. It may feel that an importer's intent to distribute obscene materials commercially is so difficult to prove that all such importation may be outlawed without offending the First Amendment. A very similar argument was made by the State in Stanley when it urged that enforcement of a possession law was necessary because of the difficulties of proving intent to distribute or actual distribution. However, the Court unequivocally rejected that argument because an individual's right to 'read or observe what he pleases' is so 'fundamental to our scheme of individual liberty.' 394 U.S., at 568, 89 S.Ct., at 1249.
Furthermore, any argument that all importation may be banned to stop possible commercial distribution simply ignores numerous holdings of this Court that legislation touching on First Amendment freedoms must be precisely and narrowly drawn to avoid stifling the expression the Amendment was designed to protect. Certainly the Court has repeatedly applied the rule against overbreadth in past censorship cases, as in Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), where we held that the State could not quarantine 'the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence.' Id., at 383, 77 S.Ct., at 526. Cf. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967).
Since the plurality opinion offers no plausible reason to distinguish private possession of 'obscenity' from importation for private use, I can only conclude that at least four members of the Court would overrule Stanley. Or perhaps in the future that case will be recognized as good law only when a man writes salacious books in his attic, prints them in his basement, and reads them in his living room.
The plurality opinion appears to concede that the customs obscenity statute is unconstitutional on its face after the Court's decision in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), because this law specifies no time limits within which forfeiture proceedings must be started against seized books or pictures, and it does not require a prompt final judicial hearing on obscenity. 402 U.S., at 368-369, 91 S.Ct., at 1405. Once the plurality has reached this determination the proper course would be to affirm the lower court's decision. But the plurality goes on to rewrite the statute by adding specific time limits. The plurality then notes that the Government here has conveniently stayed within these judicially manufactured limits by one day, and on that premise it concludes the statute may be enforced in this case. In my view the plurality's action in rewriting this statute represents a seizure of legislative power that we simply do not possess under the Constitution.
Certainly claimant Luros has standing to raise the claim that the customs statute's failure to provide for prompt judicial decision renders it unconstitutional. Our previous decisions make clear that such censorship statutes may be challenged on their face as a violation of First Amendment rights 'whether or not (a defendant's) conduct could be proscribed by a properly drawn statute.' Freedman v. Maryland, supra, 380 U.S., at 56, 85 S.Ct., at 737. This is true because of the 'danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.' NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Since this censorship statute is unconstitutional on its face, and claimant has standing to challenge it as such, that should end the case without further ado. But the plurality nimbly avoids this result by writing a new censorship statute.
I simply cannot understand how the plurality determines it has the power to substitute the new statute for the one that the duly elected representatives of the people have enacted. The plurality betrays its uneasiness when it concedes that we specifically refused to undertake any such legislative task in Freedman, supra, and in Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971). After holding the Maryland movie censorship law unconstitutional in Freedman, the Court stated:
'How or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme is, of course, for the State to decide.' 380 U.S., at 60, 85 S.Ct., at 740.
With all deference, I would suggest that the decision whether and how the customs obscenity law should be rewritten is a task for the Congress, not this Court. Congress might decide to write an entirely different law, or even decide that the Nation can well live without such a statute.
The plurality claims to find power to rewrite the customs obscenity law in the statute's legislative history and in the rule that statutes should be construed to avoid constitutional questions. 402 U.S., at 373, 91 S.Ct., at 1406. I agree, of course, that statutes should be construed to uphold their constitutionality when this can be done without misusing the legislative history and substituting a new statute for the one that Congress has passed. But this rule of construction does not justify the plurality's acting like a legislature or one of its committees and redrafting the statute in a manner not supported by the deliberations of Congress or by our previous decisions in censorship cases.
The plurality relies principally on statements made by Senators Swanson and Pittman when the customs obscenity legislation was under discussion on the Senate floor. The defect in the Court's reliance is that the Senators' statements did not refer to the version of the law that was passed by Congress. Senator Pittman, objecting to one of the very first drafts of the law, said:
'Why would it not protect the public entirely if we were to provide for the seizure as now provided and that the property should be held by the officer seizing, and that he should immediately report to the nearest United States district attorney having authority under the law to proceed to confiscate * * *.' 72 Cong.Rec. 5240.
A few minutes later Senator Walsh of Montana announced he would propose an amendment 'that would meet the suggestion made by the Senator from Nevada (Mr. Pittman) * * *.' Id., at 5421. As Senator Walsh first presented his amendment it read:
'Upon the appearance of any such book or other matter at any customs office the collector thereof shall immediately transmit information thereof to the district attorney of the district in which such port is situated, who shall immediately institute proceedings in the district court for the forfeiture and destruction of the same * * *.' Ibid. (Emphasis added.)
Senator Swanson was referring to this first draft of the Walsh amendment when he made the remarks cited by the plurality that officers would be required to go to court 'immediately' and that there would be a 'prompt' decision on the matter. Id., at 5422, 5424. But just after Swanson's statement the Walsh amendment was changed on the Senate floor to read as follows:
'Upon the seizure of such book or matter the collector shall transmit information thereof to the district attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized.' Id., at 5424. (Emphasis added).
Thus the requirement that officers go to court 'immediately' was dropped in the second draft of the Walsh amendment, and the language of this second draft was enacted into law. The comments quoted and relied upon by the plurality were made with reference to an amendment draft that was not adopted by the Senate and is not now the law. This legislative history just referred to provides no support that I can see for the Court's action today. To the extent that these debates tell us anything about the Senate's attitude toward prompt judicial review of censorship decisions they show simply that the issue was put before the Senate but that it did not choose to require prompt judicial review.
The plurality concedes that in previous censorship cases we have considered the validity of the statutes before us on their face, and we have refused to rewrite them. Although some of these cases did involve state statutes, in Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971), we specifically declined to attempt to save a federal obscenity mail-blocking statute by redrafting it. The Court there plainly declared: 'it is for Congress, not this Court, to rewrite the statute.' Id., at 419, 91 S.Ct., at 429. The plurality in its opinion now seeks to distinguish Blount because saving the mail-blocking statute by requiring prompt judicial review 'would have required its complete rewriting in a manner inconsistent with the expressed intentions of some of its authors.' 402 U.S., at 369, 91 S.Ct., at 1405. But the only 'expressed intention' cited by the plurality to support this argument is testimony by the Postmaster General that he wanted to forestall judicial review pending completion of administrative mail-blocking proceedings. At 370, 91 S.Ct., at 1405. That insignificant piece of legislative history would have posed no obstacle to the Court's saving the mail-blocking statute by requiring prompt judicial review after prompt administrative proceedings. Yet the Court in Blount properly refused to undertake such a legislative task, just as it did in the cases involving state censorship statutes.
The plurality also purports to justify its judicial legislation by pointing to the severability provisions contained in 19 U.S.C. § 1652. It is difficult to see how this distinguishes earlier cases, since the statutes struck down in Freedman v. Maryland, supra, and Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968), also contained severability provisions. See Md.Ann.Code, Art. 66A, § 24 (1957), Municipal Code of Chicago § 155-7.4 (1961).
The plurality is not entirely clear whether the time limits it imposes stem from the legislative history of the customs law or from the demands of the First Amendment. At one point we are told that 14 days and 60 days are not the 'only constitutionally permissible time limits,' and that if Congress imposes new rules this would present a new constitutional question. 402 U.S., at 374, 91 S.Ct., at 1407. This strongly suggests the time limits stem from the Court's power to 'interpret' or 'construe' federal statutes, not from the Constitution. But since the Court's action today has no support in the legislative history or the wording of the statute, it appears much more likely that the time limits are derived from the First Amendment itself. If the plurality is really drawing its rules from the First Amendment, I find the process of derivation both peculiar and disturbing. The rules are not derived by considering what the First Amendment demands, but by surveying previously litigated cases and then guessing what limits would not pose an 'undue hardship' on the Government and the lower federal courts. At 373, 91 S.Ct., at 1407. Scant attention is given to the First Amendment rights of persons entering the country. Certainly it gives little comfort to an American bringing a book home to Colorado or Alabama for personal reading to be informed without explanation that a 74-day delay at New York harbor is not 'undue.' Faced with such lengthy legal proceedings and the need to hire a lawyer far from home, he is likely to be coerced into giving up his First Amendment rights. Thus the whims of customs clerks or the congestion of their business will determine what Americans may read.
I would simply leave this statute as the Congress wrote it and affirm the judgment of the District Court.
I do not understand why the plurality fees so free to abandon previous precedents protecting the cherished freedoms of press and speech. I cannot, of course, believe it is bowing to popular passions and what it perceives to be the temper of the times. As I have said before, 'Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind that brings new political administrations into temporary power.' Turner v. United States, 396 U.S. 398, 426, 90 S.Ct. 642, 657, 24 L.Ed.2d 610 (1970) (Black, J., dissenting). In any society there come times when the public is seized with fear and the importance of basic freedoms is easily forgotten. I hope, however, 'that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred placed where they belong in a free society.' Dennis v. United States, 341 U.S. 494, 581, 71 S.Ct. 857, 903, 95 L.Ed. 1137 (1951) (Black, J., dissenting).

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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