United States v. 37 Photographs, 402 U.S. 363 (1971)

In this companion case to U.S. v. Reidel (1971), the Supreme Court considered the constitutionality of a federal statute prohibiting the importation of obscene photographs in light of Stanley v. Georgia’s (1969) protection of the ‘‘mere private possession’’ of obscene material.

Customs agents seized photographs Luros had brought into the United States after a trip to Europe and turned them over for forfeiture proceedings. Luros counterclaimed before a three-judge federal court. The court ruled the federal statute was constitutionally invalid, first, because it lacked time limits within which forfeiture proceedings could be started as required by an earlier Supreme Court decision and, second, because it banned obscene material for private use contrary to the Stanley decision.

In a fractured vote, the Supreme Court reversed the lower court’s decision and remanded it to the lower court. White wrote the opinion. Five justices joined Part I of White’s opinion, which ‘‘read in’’ time limits that were absent from the statute to avoid striking it down. Part II of the decision addressed the challenge based on Stanley and attracted only three justices (Burger, Brennan, and Blackmun) for a plurality. Harlan and Stewart writing separately concurred with the judgment and Part I of White’s opinion but declined to join Part I. Black, joined by Douglas, dissented. Marshall also dissented.

Most of White’s opinion was taken up by Part I and the majority’s justification for construing and enunciating a time schedule for forfeiture proceedings including judicial review under the federal statute. Part II is relatively brief as White relies on Reidel to assert by analogy that if Congress can prevent the mails from being used to distribute obscene literature then it also has the authority to remove from the ‘‘channels of commerce’’ obscene photographs being imported into the country. The private use or possession of obscene material under Stanley is of no matter, because ‘‘a port of entry is not a traveler’s home.’’ And, because customs officials routinely inspect luggage, the right to be left alone ‘‘neither prevents the search of...luggage nor the seizure of unprotected but illegal materials’’ in a traveler’s private possession. Stanley, in other words, does not extend ‘‘to one seeking to import obscene materials from abroad, whether for private use or public distribution.’’

Marshall’s dissent, published as part of the Reidel opinion, pointed out that the photographs were taken from Luros’ luggage and that they were ‘‘in his purely private possession’’ and that they ‘‘threatened neither children nor anyone else.’’ If and when some of the photographs were published, Marshall argued, the government would have the opportunity to implement the law, because their publication would take place publicly through commercial distribution. The ‘‘magnitude of the threats’’ created by the photographs would ‘‘best be assessed when distribution actually occurs.’’ Justice Black’s more detailed dissent also referred obliquely to the issue of prior restraint that was implicit in the plurality opinion.

Taken in tandem, Reidel and Thirty-Seven Photographs were efforts by the Court, if not to rein in the genie that Stanley released from the bottle to at least clarify and reaffirm the Court’s support for Roth and the exception it made to the First Amendment’s protection of free speech and press.

ROY B. FLEMMING

References and Further Reading

• Alexander, Donald. The Politics of Pornography. Chicago: University of Chicago Press, 1989.
• Hixson, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale, IL: Southern Illinois University Press, 1996.
• Mackey, Thomas C. Pornography on Trial: A Handbook with Cases, Law, and Documents. Santa Barbara, CA: ABC-Clio, 2002.

Cases and Statutes Cited

• Stanley v. Georgia, 394 U.S. 557 (1969)
• United States v. Thirty-Seven (37) Photographs (Luros, Claimant), 402 U.S. 363 (1971)
• United States v. Reidel, 402 U.S. 351 (1971)