This case was one of a trio of major decisions of which Miller v. California (1973) was pivotal that the Burger Court used to revamp the standards of when depictions or descriptions of sexual conduct or possession of these depictions or descriptions are protected by the First Amendment.
This case revisited the constitutionality of the federal law prohibiting the importation of obscene material with the difference that the importer claimed the material was for private or personal use. A federal district court in California summarily dismissed the forfeiture action brought by the government based on the lower court decision in United States v. Thirty- Seven Photographs before it was reversed by the Supreme Court. By a five-to-four margin, the Supreme Court vacated the dismissal and remanded the case for reconsideration in light of the standards set forth in Miller. Burger, joined by Blackmun, Powell, Rehnquist, and White, wrote the majority opinion. Douglas dissented as did Brennan who was joined by Marshall and Stewart.
Burger argues that as in Thirty-Seven Photographs there is no right to import obscene material even for private possession in one’s home or the absence of any stipulation of possible distribution in the future. Stanley v. Georgia (1969), he claims, did not depend on any First Amendment right to purchase obscene materials but on a right to privacy in one’s residence. He draws attention to the concurrence by Brennan and two other justices who made the point of saying that Miller should have been disposed of on Fourth Amendment grounds irrespective of the character of the material in question. Stanley, then, did not rest on the First Amendment but on the right to privacy, which, as a corollary did not imply a right to receive or send obscene material outside the residence.
Burger dismisses what he refers to as the ‘‘seductive plausibility of single steps in a chain of evolutionary development of a legal rule’’ as the respondent tries to do with Stanley in an attempt to extend the right to private possession of obscenity beyond the home. Line drawing, ‘‘thus far, but not beyond,’’ he notes, is commonplace in judicial decision making, and he adds that if ‘‘the precise, carefully limited holding of Stanley’’ included the importation of obscene material, it ‘‘would not be law today.’’ There is no correlative right to buy, sell, give to others, or import obscene material. Nor is there a correlative right to transport it in interstate commerce as declared in United States v. Orito (1973), a companion case in the Burger Court reevaluation of the Court’s obscenity jurisprudence.
Douglas’s dissent offers historical documentation for his absolutist stance on the absence of any authority under the First Amendment to censor purported obscene material. Brennan simply refers to his dissents in Miller and in Paris Adult Theatre I for the reasons why he opposes the majority’s decision.
ROY B. FLEMMING
References and Further Reading
Cases and Statutes Cited