| United States v. 12 200-ft. Reels of Film | |
|---|---|
 | |
| Argued January 19, 1972 Reargued November 7, 1972 Decided June 21, 1973 | |
| Full case name | United States v. 12 200-ft. Reels of Super 8MM. Film et al |
| Docket no. | 70-002 |
| Citations | 413U.S.123 (more) 93 S. Ct. 2665; 37L. Ed. 2d 500 |
| Argument | Oral argument |
| Reargument | Reargument |
| Opinion announcement | Opinion announcement |
| Case history | |
| Prior | Judgement forclaimant, unreported (C.D. Cal.) |
| Holding | |
| Reach of previous holding that possession ofobscene material in home for personal use does not extend toimport of same material; obscenity of material at issue to be re-adjudicated under newly establishedMiller v. California standard.Central District of Californiavacated andremanded | |
| Court membership | |
| |
| Case opinions | |
| Majority | Burger, joined by White, Blackmun, Powell, Rehnquist |
| Dissent | Douglas |
| Dissent | Brennan, joined by Stewart, Marshall |
| Laws applied | |
| U.S. Const. amend. I | |
United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was anin rem case decided by theUnited States Supreme Court that considered the question of whether theFirst Amendment required that citizens be allowed toimportobscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.
This case was very similar toUnited States v. Thirty-seven Photographs, a case the Court had heard two years earlier. It began when the films, and other visual and textual material with predominant explicitsexual content, were seized bycustoms agents from Paladini, aCalifornia man returning fromMexico.Federal law at the time prohibited the import of any material that might be judged to be obscene. Paladini challenged theforfeiture proceedings the government initiated, on the grounds that he intended the material for his personal use in the privacy of his own home, an activity the Court had ruled was protected under the First Amendment inStanley v. Georgia. Thus, he argued, he had a right to obtain such material abroad for that purpose.
After adistrict court panel agreed with him and declared thestatuteunconstitutional, the case went to the Supreme Court directly. Its opinion was one of four obscenity cases handed down, along withMiller v. California, in which the Court announced a new standard of obscenity for the first time sinceRoth v. United States 17 years before. By a 5–4 margin, the Court held that the statute was constitutional, but it also ordered the district court to review the material underits new standard and consider whether it was still obscene.
Chief JusticeWarren Burger wrote for themajority, reaffirming a similar holding inThirty-seven Photographs that the right to possess something in one's home which might otherwise beunlawful outside of it did not give rise to a right to import it.William O. Douglas wrote a lengthy dissent, responding as much to the majority holding inMiller, arguing that history showed obscenity laws were not vigorously enforced at the time theBill of Rights was adopted and thus could not be justified on traditionalist grounds.William Brennan wrote a shorter dissent, joined by the other two justices, calling the statute overbroad.
For most of American history, literary and artistic works depicting, or even alluding to,sexual acts and topics or usingprofane language had beenbanned frompublication or distribution, often by bothconfiscation of the works themselves and criminal prosecution of all individuals involved, following the traditions ofEnglish common law onobscenity and statutes at the state and federal levels. At the same time,demand for such materials continued, and the laws were often widely flouted. Nodefendant or claimant in such an action had ever persuaded a court to entertain the argument that theFirst Amendment's guarantees offree speech andfree expression barred them.
That began to change during the 20th century, in response to social andcultural trends of greatertolerance forliterature and art that depicted such proscribed material. In the landmark 1933 caseUnited States v. One Book Called Ulysses, JudgeJohn M. Woolsey of theSouthern District of New York ruled thatJames Joyce's novelUlysses, chapters of which had been held obscene over a decade earlier when published in a literary review, could not be barred from theUnited States purely on the basis of its language and content without considering itsliterary merit.[1]Second Circuit judgesLearned andAugustus Hand upheld Woolsey on appeal,[2] and the book, considered a masterpiece ofmodernist literature, could be freely published and sold.
Censorship battles continued in the next decades over other works of literature and art, such asLady 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.[3]William Brennan wrote for a 6–3 majority that upheld thecriminal conviction but abandoned the century-oldHicklin test in favor of a narrower definition of obscenity. It did not settle the issue, however, and theWarren Court had to hear more cases arising from subsequent prosecutions in the next decade, during which theSexual Revolution began a more direct challenge tosocial mores on the issue.
In some of those cases, likeMemoirs v. Massachusetts, the justices realized theirRoth standard was inadequate, but they could not agree on a new one.[4] The search for a workable legal definition of obscenity led toPotter Stewart's famous line "I know it when I see it" inJacobellis v. Ohio.[5] 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 that they had to approve a film within a specified period of time.[6] InStanley v. Georgia, the Court held that possession of obscene material in the privacy of the home was constitutionally protected as well.[7]
United States v. Thirty-seven Photographs, like its companion caseUnited States v. Reidel,[8] was aStanley-inspired challenge to the laws against the distribution of obscenity. In October 1969,Milton Luros, an adult-magazine publisher fromSouthern California, had challenged the seizure of the photographs, depictingnakedheterosexual couples in varioussexual positions, on his return toLos Angeles fromEurope. He claimed he later planned to use them to illustrate a copy of theKama Sutra.[9]
In addition to arguing thatStanley gave him the right to import such material, Luros also challenged the procedures of the case under theFifth Amendment, pointing out that the statute, Section 1305 ofTitle 18 of the United States Code, did not give a time frame within which the government had to beginforfeiture proceedings against the seized material and did not even require the government move in a timely fashion. A panel of two judges from theCentral District of California and one judge from theNinth Circuit Court of Appeals disagreed with him on theStanley claim but found the lack of a time limit alone enough to hold Section 1305 unconstitutional.[10]
The statute provided for direct appeal to the Supreme Court, which heard the case in 1971. By a 6–3 margin, the Supreme Court reversed the district court panel. "[A]port of entry is not a traveler's home," JusticeByron White wrote for the majority. "His right to be let alone neither prevents the search of hisluggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search."[11] Justice White found theStanley argument less applicable, since Luros had admitted to the intent of commercial use.
However, Justice White agreed that without a time limit for when forfeiture proceedings had to begin, Section 1305 was an unconstitutional violation ofdue-process rights. Since Court doctrine holds that if it is possible to construe a statute in a way that avoids the constitutional question, it should be done, White construed Section 1305 to require a 14-day maximum time-frame from initial seizure to forfeiture filing.[12] In separateconcurrences,John Marshall Harlan II defended the statute against Luros's claim it wasoverbroad[13] andPotter Stewart indicated his disagreement with the majority holding thatStanley did not extend to importing obscene material.[14]
Indissent,Hugo Black, joined byWilliam O. Douglas, reiterated his opposition to legally enforceable obscenity, and he attacked the majority both for usurping thelegislativeprerogative of imposing a time limit where there had been none and not extendingStanley: "The right to read and view any 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."[15]Thurgood Marshall's dissent was atReidel, where he felt that, since Luros had those pictures in his private personal possession when he cleared customs,Stanley was applicable.[16]
Paladini returned toLos Angeles International Airport after a trip to Mexico in April 1970.Customs agents inspecting his belongings discovered "movie films, color slides, photographs, and other printed and graphic material" of a possibly obscene nature, and confiscated them, without charging Paladini. Paladini claimed that they were for his own personal use, and he challenged the asset forfeiture proceedings as Luros had before him.[17] Since he had not been criminally charged, the case was anin rem civilforfeiture action, with the reels of film and other items named as defendants.
Unlike Luros, he alleged no procedural defect in Section 1305. Instead, he argued that the entire statute was unconstitutional, sinceStanley v. Georgia had held that the First Amendment protected the right to possess, read and view obscene material in the home and that allowed him to import such material for that use. The district court panel agreed, citingThirty-seven Photographs, and struck down the statute. Again, the government appealed directly to the Supreme Court.[17]
The Court, as it had inThirty-seven Photographs, grantedcertiorari and agreed to hear the case.Oral argument inReels of Film was held in January 1972, with no decision for the rest of the term, since the Court had agreed to take some other obscenity cases. Before the beginning of the October 1972 term, JusticesHugo Black andJohn Marshall Harlan II retired, their deaths imminent. PresidentRichard Nixon appointedWilliam Rehnquist andLewis Powell to replace them. Arguments were reheard in November 1972.
Thomas Kuchel, recently defeated in his re-election bid for hisU.S. Senate seat from California, argued the case for the claimant at rehearing, by invitation of the Court.Solicitor GeneralErwin Griswold argued the case for the government.Amicus curiaebriefs were filed by theAmerican Civil Liberties Union andFirst Amendment Lawyers Association in support.
In June 1973, near the end of the term, the Court handed down its opinion in all five cases. InMiller v. California, it succeeded, where it had failed seven years earlier inMemoirs v. Massachusetts, producinga new standard for obscenity that superseded the 1957Roth v. United States holding.Miller impacted all the cases decided that day.
As he had inMiller, Chief JusticeWarren Burger wrote for a five-justice majority inReels of Film. He reaffirmed theThirty-seven Photographs holding on the import ban, finding no distinction for private use and noting how holding it a protected activity could create aloophole that would make other laws intended to suppress the domestic distribution of obscenity ineffectual. However, in this case, the majority ordered the caseremanded to district court to determine whether Paladini's materials were obscene underMiller, which called for "contemporarycommunity standards" to be applied, rather than a national standard.
William O. Douglas wrote a lengthydissent, responding in part to theMiller majority. At length, citing from histories of the era, he argued that, at the time of the country's founding, writers likeBenjamin Franklin andJohn Cleland had enjoyed far greater freedom to write about sexual topics than even current law now allowed. The rights granted byStanley were useless, he said, if one could not freely obtain the materials to read or view in the home. In a separate dissent,William Brennan said Section 1305 wasoverbroad and unconstitutional.
Burger recounted the facts of the case, and he then turned to theStanley argument. "But it is now well established that obscene material is not protected by the First Amendment", he wrote, referring to the Court's other holdings that day.Stanley he continued, was fundamentally a case aboutprivacy and theFourth Amendment rather than free speech and theFirst.[18]
Courts should avoid granting inferential, incremental steps like these, Burger cautioned, in one of the most frequently quoted sections of the case:
The seductive plausibility of single steps in a chain of evolutionary development of alegal rule is often not perceived until a third, fourth, or fifth "logical" extension occurs. Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance. This kind of gestative propensity calls for the "line drawing" familiar in the judicial, as in thelegislative process: "thus far, but not beyond."[19]
It did not matter that, unlike the claimant inThirty-seven Photographs, Paladini insisted that the materials were for private personal use. "To allow such a claim would be not unlike compelling the Government to permit importation of prohibited orcontrolled drugs forprivate consumption as long as such drugs are not for public distribution or sale." In one of the other cases,United States v. Orito,[20] the Court had upheld federal law prohibiting obscenity from being sent through domesticcargo shippers, paralleling its decision of two years earlier inThirty-seven Photographs'scompanion caseUnited States v. Reidel,[8] which affirmed the prohibition on sending obscenity through the mail. Congress could, Burger admitted, allow the transmission and import of such materials with appropriate security measures to prevent unwilling recipients or children from being exposed to them, two legitimate state interestsStanley had recognized.[21] But it had not.[22]
Having dealt with the major issue, Burger added an afterthought, observing "that it is extremely difficult to control the uses to which obscene material is put once it enters this country" since it was by then technologically possible to make many copies very quickly and cheaply of a single original. But, "[w]hile it is true that a large volume of obscene material onmicrofilm could rather easily besmuggled into the United States by mail, or otherwise, and could be enlarged or reproduced for commercial purposes,Congress is not precluded from barring some avenues of illegal importation because avenues exist that are more difficult to regulate."[23]
"I know of no constitutional way by which a book, tract, paper, postcard, or film may be madecontraband because of its contents", Douglas began, reiterating the opposition to obscenity laws he had stated in many opinions over the preceding years. "The Constitution never purported to give the Federal Government censorship or oversight over literature or artistic productions, save as they might be governed by thePatent and Copyright Clause ..."[24]
Justice Douglas responded to theMiller majority's argument that the First Amendment necessarily incorporated the common-law strictures on obscenity that existed at that time.James Madison, in drafting theBill of Rights, intended for them to apply strictly to the federal government.[note 1] "Tying censorship to the movement of literature or films ininterstate commerce or into foreign commerce would have been an easy way for a government ofdelegated powers to impair theliberty of expression. It was to bar such suppression that we have the First Amendment. I daresayJefferson and Madison would be appalled at what the Court espouses today."[25]
Histories of the era, Douglas wrote, show that at the time of the Constitution's adoption many sexually frank works such asFanny Hill circulated widely, with little censorship or prosecution."[26] InBridges v. California, a 1941 decision overturning thecontempt conviction of a labor leader for publishing atelegram from a state official, the Court had itself quoted Madison to the effect that theRevolution specifically intended to replace English common law on freedom of speech and thepress, sinceMagna Carta said nothing about them.[27] And the Court's own recent efforts to define obscenity "have not been productive of meaningful standards ... The reason is not the inability or mediocrity of judges".[28]
"[I]t is ironic to me," Douglas concluded, "that, in this Nation, many pages must be written and many hours spent to explain why a person who can read whatever he desires ... may not without violating a law carry that literature in his briefcase or bring it home from abroad. Unless there is that ancillary right, one'sStanley rights could be realized, as has been suggested, only if one wrote or designed a tract in his attic and printed or processed it in his basement, so as to be able to read it in his study."[29][note 2]
Brennan's short dissent reflected the change in his thinking about obscenity. It alluded to his dissent in another of the companion cases,Paris Adult Theatre I v. Slaton, in which he said he no longer believed it was reasonably possible for judges to define obscenity, even narrowly.[30] For that reason, he considered any statute that attempted to do so, or suppressed obscenity based on that definition, asoverbroad and unconstitutional on its face.[31]
The Court's clearholding that the privately possessed obscene material did not create the right to distribute it became part of its general body on the subject. In the wake ofMiller, that has not had to be revisited, since general obscenity prosecutions declined, technology allowed more discreet methods of obtaining pornography, and the Court has not had to reconsider its standard. Enforcement mostly turned tochild pornography, the production and distribution of which Congress banned with theChild Protection Act of 1978. Four years later, the Court held that obscene material depicting actual children was not protected speech inNew York v. Ferber in 1982.[32]
Until that statute was further revised in 1984, possession of child pornography was still legal.[note 3] An Oregon man appealed his 1983 conviction, for receiving sexually explicit films withunderageteenagers in the mail fromSweden, and asked theNinth Circuit to reject theReels of Film holding. It instead relied on it in upholding the conviction, telling the appellee to take it up with the Supreme Court.[33]
JusticeAntonin Scalia, who replaced Burger in 1986, twice approvingly quoted the chief justice's warning inReels of Film about the dangers of incremental judicial expansion of astatutory construction. InNLRB v. Electrical Workers, upholdingunion disciplinary action against members who had worked for a nonunion employer, decided in Scalia's first term, he cited Burger in hisconcurrence, explaining histextualist approach tojurisprudence, calling it "nowhere more applicable".[34] Almost two decades later, dissenting inTennessee v. Lane, Scalia repeated the entire passage again.[35]
