When Milton Luros returned to the United States from Europe on October 24, 1969, he brought with him in his luggage the 37 photographs here involved. United States customs agents, acting pursuant to § 305 of the Tariff Act of 1930, as amended, 46 Stat. 688, 19 U. S. C. § 1305 (a),
In Freedman v. Maryland, supra, we struck down a state scheme for administrative licensing of motion pictures, holding "that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." 380 U. S., at 58. To insure that a judicial determination occurs promptly so that administrative delay does not in itself become a form of censorship, we further held, (1) there must be assurance, "by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film"; (2) "[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution"; and (3) "the procedure must also assure a prompt final judicial decision" to minimize the impact of possibly erroneous administrative action. Id., at 58-59.
Subsequently, we invalidated Chicago's motion picture censorship ordinance because it permitted an unduly long administrative procedure before the invocation of judicial action and also because the ordinance, although requiring prompt resort to the courts after administrative decision and an early hearing, did not assure "a prompt judicial decision of the question of the alleged obscenity of the film." Teitel Film Corp. v. Cusack, 390 U.S. 139, 141 (1968). So, too, in Blount v. Rizzi, 400 U.S. 410
As enacted by Congress, § 1305 (a) does not contain explicit time limits of the sort required by Freedman, Teitel, and Blount.
The obstacle in Freedman and Teitel was that the statutes were enacted pursuant to state rather than federal authority; while Freedman recognized that a statute failing to specify time limits could be saved by judicial construction, it held that such construction had to be "authoritative," 380 U. S., at 59, and we lack jurisdiction authoritatively to construe state legislation. Cf. General Trading Co. v. State Tax Comm'n, 322 U.S. 335, 337 (1944). In Blount, we were dealing with a federal statute and thus had power to give it an authoritative construction; salvation of that statute, however, would have required its complete rewriting in a manner inconsistent with the expressed intentions of some of its authors. For the statute at issue in Blount not only failed to specify time limits within which judicial proceedings must be instituted and completed; it also failed to give any authorization at all to the administrative
No such obstacles confront us in construing § 1305 (a). In fact, the reading into the section of the time limits required by Freedman is fully consistent with its legislative purpose. When the statute, which in its present form dates back to 1930, was first presented to the Senate, concern immediately arose that it did not provide for determinations of obscenity to be made by courts rather than administrative officers and that it did not require that judicial rulings be obtained promptly. In language strikingly parallel to that of the Court in Freedman, Senator Walsh protested against the "attempt to enact a law that would vest an administrative officer with power to take books and confiscate them and destroy them, because, in his judgment, they were obscene or indecent," and urged that the law "oblige him to go into court and file his information there ... and have it determined in the usual way, the same as every other crime is determined." 72 Cong. Rec. 5419. Senator Wheeler likewise could not "conceive how any man" could "possibly object" to an amendment to the proposed legislation that required a customs officer, if he concluded material was obscene, to "tur[n] it over to the district attorney, and the district attorney prosecutes the man, and he has the right of trial by jury in that case." 71 Cong. Rec. 4466. Other Senators similarly indicated their aversion to censorship "by customs clerks and bureaucratic officials," id., at 4437 (remarks of Sen.
Before it finally emerged from Congress, § 1305 (a) was amended in response to objections of the sort voiced above: it thus reflects the same policy considerations that induced this Court to hold in Freedman that censors must resort to the courts "within a specified brief period" and that such resort must be followed by "a prompt final judicial decision . . . ." 380 U. S., at 59. Congress' sole omission was its failure to specify exact time limits within which resort to the courts must be had and judicial proceedings be completed. No one during the congressional debates ever suggested inclusion of such limits, perhaps because experience had not yet demonstrated a need for them. Since 1930, however, the need has become clear. Our researches have disclosed cases sanctioning delays of as long as 40 days and even six
We begin by examining cases in the lower federal courts in which proceedings have been brought under § 1305 (a). That examination indicates that in many of the cases that have come to our attention the Government in fact instituted forfeiture proceedings within 14 days of the date of seizure of the allegedly obscene goods, see United States v. Reliable Sales Co., 376 F.2d 803 (CA4 1967); United States v. 1,000 Copies of a Magazine Entitled "Solis," 254 F.Supp. 595 (Md. 1966); United States v. 56 Cartons Containing 19,500 Copies of a Magazine Entitled "Hellenic Sun," 253 F.Supp. 498 (Md. 1966), aff'd, 373 F.2d 635 (CA4 1967); United States v. 392 Copies of a Magazine Entitled "Exclusive," 253 F.Supp. 485 (Md. 1966); and judicial proceedings were completed within 60 days of their commencement. See United States v. Reliable Sales Co., supra; United States v. 1,000 Copies of a Magazine Entitled "Solis," supra; United States v. 56 Cartons Containing 19,500 Copies of a Magazine Entitled "Hellenic Sun," supra; United States v. 392 Copies of a Magazine Entitled "Exclusive," supra; United States v. 127,295 Copies of Magazines, More or Less, 295 F.Supp. 1186 (Md. 1968). Given this record, it seems clear that no undue hardship will be imposed upon the Government and the lower federal courts by requiring that forfeiture proceedings be commenced within 14 days and completed within 60 days of their commencement; nor does a delay of as much as 74 days seem undue for importers engaged in the lengthy process of bringing goods into this country from abroad. Accordingly, we construe § 1305 (a) to require intervals of no more
Of course, we do not now decide that these are the only constitutionally permissible time limits. We note, furthermore, that constitutionally permissible limits may vary in different contexts; in other contexts, such as a claim by a state censor that a movie is obscene, the Constitution may impose different requirements with respect to the time between the making of the claim and the institution of judicial proceedings or between their commencement and completion than in the context of a claim of obscenity made by customs officials at the border. We decide none of these questions today. We do nothing in this case but construe § 1305 (a) in its present form, fully cognizant that Congress may re-enact it in a new form specifying new time limits, upon whose constitutionality we may then be required to pass.
So construed, § 1305 (a) may constitutionally be applied to the case before us. Seizure in the present case took place on October 24 and forfeiture proceedings were instituted on November 6—a mere 13 days after seizure. Moreover, decision on the obscenity of Luros' materials might well have been forthcoming within 60 days had claimant not challenged the validity of the statute and caused a three-judge court to be convened. We hold that proceedings of such brevity fully meet the constitutional standards set out in Freedman, Teitel, and
We next consider Luros' second claim, which is based upon Stanley v. Georgia, supra. On the authority of Stanley, Luros urged the trial court to construe the First Amendment as forbidding any restraints on obscenity except where necessary to protect children or where it intruded itself upon the sensitivity or privacy of an unwilling adult. Without rejecting this position, the trial court read Stanley as protecting, at the very least, the right to read obscene material in the privacy of one's own home and to receive it for that purpose. It therefore held that § 1305 (a), which bars the importation of obscenity for private use as well as for commercial distribution, is overbroad and hence unconstitutional.
The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
[For dissenting opinion of MR. JUSTICE MARSHALL, see ante, p. 360.]
MR. JUSTICE HARLAN, concurring in the judgment and in Part I of MR. JUSTICE WHITE'S opinion.
I agree, for the reasons set forth in Part I of MR. JUSTICE WHITE'S opinion, that this statute may and should be construed as requiring administrative and judicial action within specified time limits that will avoid the constitutional issue that would otherwise be presented by Freedman v. Maryland, 380 U.S. 51 (1965). Our decision today in United States v. Reidel, ante, p. 351, forecloses Luros' claim that the Government may not prohibit the importation of obscene materials for commercial distribution.
Luros also attacked the statute on its face as overbroad because of its apparent prohibition of importation for private use. A statutory scheme purporting to proscribe only importation for commercial purposes would certainly be sufficiently clear to withstand a facial attack on the statute based on the notion that the line between commercial and private importation is so unclear as to inhibit the alleged right to import for private use. Cf. Breard v. Alexandria, 341 U.S. 622 (1951). It is incontestable that 19 U. S. C. § 1305 (a) is intended to cover at the very least importation of obscene materials for commercial purposes. See n. 1 of MR. JUSTICE WHITE'S opinion. Since the parties stipulated that the materials
Thus it is apparent that we could only narrow the statute's sweep to commercial importation, were we to determine that importation for private use is constitutionally privileged. In these circumstances, the argument that Luros should be allowed to raise the question of constitutional privilege to import for private use, in order to protect the alleged First Amendment rights of private importers of obscenity from the "chilling effects" of the statute's presence on the books, seems to me to be clearly outweighed by the policy that the resolution of constitutional questions should be avoided where not necessary to the decision of the case at hand.
I would hold that Luros lacked standing to raise the overbreadth claim. See Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 910 (1970).
On the foregoing premises I join Part I of the Court's opinion and as to Part II, concur in the judgment.
MR. JUSTICE STEWART, concurring in the judgment and in Part I of MR. JUSTICE WHITE'S opinion.
I agree that the First Amendment does not prevent the border seizure of obscene materials sought to be imported for commercial dissemination. For the reasons expressed in Part I of MR. JUSTICE WHITE'S opinion, I also agree that Freedman v. Maryland, 380 U.S. 51, requires that there be time limits for the initiation of forfeiture proceedings and for the completion of the judicial determination of obscenity.
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 (1959) (BLACK, J., concurring); Ginzburg v. United States, 383 U.S. 463, 476 (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 (1957), that "obscenity" is speech for some reason unprotected by the First Amendment. As the Court's many decisions
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 (1969); Redrup v. New York, 386 U.S. 767 (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 Thirty-Seven Photographs can be reconciled with the holdings of
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 . . . ." Ante, at 376. 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
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 (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. Cf. Thornhill v. Alabama, 310 U.S. 88 (1940); United States v. Robel, 389 U.S. 258 (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 (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. Ante, at 368-369. Once the plurality has reached this determination, the proper course would be to affirm the lower court's decision.
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, at 56. 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 (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 (1971). After holding the Maryland movie censorship law unconstitutional in Freedman, the Court stated:
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. Ante, at 373. 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:
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:
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
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 (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. 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." Ante, at 369. 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. Ante, at 370. 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 (1968), also contained
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. Ante, at 374. 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. Ante, at 373. 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.
"All persons are prohibited from importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral. . . . No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the collector that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained, shall be subject to seizure and forfeiture as hereinafter provided. . . . Provided, further, That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes.
"Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the collector to await the judgment of the district court as hereinafter provided; and no protest shall be taken to the United States Customs Court from the decision of the collector. 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. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section.
"In any such proceeding any party in interest may upon demand have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the case of ordinary actions or suits."