United States v. Thirty-Seven (37) Photographs

402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822, 1971 U.S. LEXIS 116

Opinions

Mr. Justice White

announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Brennan, and Mr. Justice Blackmun join.

*

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),¹ seized the photographs as obscene. They referred the matter to the United States Attorney, who on November 6 instituted proceedings in the United States District Court for forfeiture of the material. Luros, as claimant, answered, denying the photographs were obscene and setting up a counterclaim alleging the unconstitutionality of § 1305 (a) on its face and as applied to him. He demanded that a three-judge court be convened to issue an injunction prayed for in the counterclaim. The parties stipulated a time for hearing the three-judge court motion. A formal order convening the court was entered on November 20. The parties then stipulated a briefing schedule expiring on December 16. The court ordered a hearing for January 9, 1970, also suggesting the parties stipulate facts, which they did. The stipulation revealed, among other things, that some or all of the 37 photographs were intended to be incorporated in a hard cover edition of The Kama Sutra of Yatsyayana, a widely distributed book candidly describing a large number of sexual positions. Hearing was held as scheduled on January 9, and on January 27 the three-judge court filed its judgment and opinion declaring § 1305 (a) unconstitutional and enjoining its enforcement against the 37 photographs, which were ordered returned to Luros. 309 F. Supp. 36 (CD Cal. 1970). The judgment of invalidity rested on two grounds: first, that the section failed to comply with the procedural requirements of Freedman v. Maryland, 380 U. S. 51 (1965), and second, that under Stanley v. Georgia, 394 U. S. 557 (1969), § 1305 (a) could not validly be applied to the seized material. We shall deal with each of these grounds separately.

I

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 (1971), we held unconstitutional certain provisions of the postal laws designed to control use of the mails for commerce in obscene materials. Under those laws an administrative order restricting use of the mails could become effective without judicial approval, the burden of obtaining prompt judicial review was placed upon the user of the mails rather than the Government, and the interim judicial order, which the Government was permitted, though not required, to obtain pending completion of administrative action, was not limited to preserving the status quo for the shortest fixed period compatible with sound judicial administration.

As enacted by Congress, § 1305 (a) does not contain explicit time limits of the sort required by Freedman, Teitel, and Blount.2 These cases do not, however, require that we pass upon the constitutionality of § 1305 (a), for it is possible to construe the section to bring it in harmony with constitutional requirements. It is true that we noted in Blount that “it is for Congress, not this Court, to rewrite the statute,” 400 U. S., at 419, and that we similarly refused to rewrite Maryland’s statute and Chicago’s ordinance in Freedman and Teitel. On the other hand, we must remember that, “[w]hen the validity of an act of the Congress is drawn in question, and ... a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932). Accord, e. g., Haynes v. United States, 390 U. S. 85, 92 (1968) (dictum); Schneider v. Smith, 390 U. S. 17, 27 (1968); United States v. Rumely, 345 U. S. 41, 45 (1953); Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring). This cardinal principle did not govern Freedman, Teitel, and Blount only because the statutes there involved could not be construed so as to avoid all constitutional difficulties.

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 agency, upon a determination that material was obscene, to seek judicial review. To have saved the statute we would thus have been required to give such authorization and to create mechanisms for carrying it into effect, and we would have had to do this in the face of legislative history indicating that the Postmaster General, when he had testified before Congress, had expressly sought to forestall judicial review pending completion of administrative proceedings. See 400 U. S., at 420 n. 8.

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. Dill), preferring that determinations of obscenity should be left to courts and juries. See, e. g., id., at 4433—4439, 4448, 4452-4459; 72 Cong. Rec. 5417-5423, 5492, 5497. Senators also expressed the concern later expressed in Freedman that judicial proceedings be commenced and concluded promptly. Speaking in favor of another amendment, Senator Pittman noted that a customs officer seizing obscene matter “should immediately report to the nearest United States district attorney having authority under the law to proceed to confiscate . . . Id., at 5420 (emphasis added). Commenting on an early draft of another amendment that was ultimately adopted, Senator Swanson noted that officers would be required to go to court “immediately.” Id., at 5422. Then he added:

“The minute there is a suspicion on the part of a revenue or customs officer that a certain book is improper to be admitted into this country, he presents the matter to the district court, and there will be a prompt determination of the matter by a decision of that court.” Id., at 5424 (emphasis added).

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 months between seizure of obscene goods and commencement of judicial proceedings. See United States v. 77 Cartons of Magazines, 300 F. Supp. 851 (ND Cal. 1969); United States v. One Carton Positive Motion Picture Film Entitled “491,” 247 F. Supp. 450 (SDNY 1965), rev’d on other grounds, 367 F. 2d 889 (CA2 1966). Similarly, we have found cases in which completion of judicial proceedings has taken as long as three, four, and even seven months. See United States v. Ten Erotic Paintings, 311 F. Supp. 884 (Md. 1970); United States v. 35 MM Color Motion Picture Film Entitled “Language of Love,” 311 F. Supp. 108 (SDNY 1970); United States v. One Carton Positive Motion Picture Film Entitled “491,” supra. We conclude that to sanction such delays would be clearly inconsistent with the concern for promptness that was so frequently articulated during the course of the Senate’s debates, and that fidelity to Congress’ purpose dictates that we read explicit time limits into the section. The only alternative would be to hold § 1305 (a) unconstitutional in its entirety, but Congress has explicitly directed that the section not be invalidated in its entirety merely because its application to some persons be adjudged unlawful. See 19 U. S. C. § 1652. Nor does the construction of § 1305 (a) to include specific time limits require us to decide issues of policy appropriately left to the Congress or raise other questions upon which Congress possesses special legislative expertise, for Congress has already set its course in favor of promptness and we possess as much expertise as Congress in determining the sole remaining question — that of the speed with which prosecutorial and judicial institutions can, as a practical matter, be expected to function in adjudicating § 1305 (a) matters. We accordingly see no reason for declining to specify the time limits which must be incorporated into § 1305 (a) — a specification that is fully consistent with congressional purpose and that will obviate the constitutional objections raised by claimant. Indeed, we conclude that the legislative history of the section and the policy of giving legislation a saving construction in order to avoid decision of constitutional questions require that we undertake this task of statutory construction.

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 than 14 days from seizure of the goods to the institution of judicial proceedings for their forfeiture and no longer than 60 days from the filing of the action to final decision in the district court. No seizure or forfeiture will be invalidated for delay, however, where the claimant is responsible for extending either administrative action or judicial determination beyond the allowable time limits or where administrative or judicial proceedings are postponed pending the consideration of constitutional issues appropriate only for a three-judge court.

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 mew 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 Blount. Section 1305 (a) accordingly may be applied to the 37 photographs, providing that on remand the obscenity issue is resolved in the District Court within 60 days, excluding any delays caused by Luros.

II

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.³

The trial court erred in reading Stanley as immunizing from seizure obscene materials possessed at a port of entry for the purpose of importation for private use. In United States v. Reidel, ante, p. 351, we have today held that Congress may constitutionally prevent the mails from being used for distributing pornography. In this case, neither Luros nor his putative buyers have rights that are infringed by the exclusion of obscenity from incoming foreign commerce. By the same token, obscene materials may be removed from the channels of commerce when discovered in the luggage of a returning foreign traveler even though intended solely for his private use. That the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce. Stanley’s emphasis was on the freedom of thought and mind in the privacy of the home. But a port of entry is not a traveler's home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search. Customs officers characteristically inspect luggage and their power to do so is not questioned in this case; it is an old practice and is intimately associated with excluding illegal articles from the country. Whatever the scope of the right to receive obscenity adumbrated in Stanley, that right, as we said in Reidel, does not extend to one who is seeking, as was Luros here, to distribute obscene materials to the public, nor does it extend to one seeking to import obscene materials from abroad, whether for private use or public distribution. As we held in Roth v. United States, 354 U. S. 476 (1957), and reiterated today in Reidel, supra, obscenity is not within the scope of First Amendment protection. Hence Congress may declare it contraband and prohibit its importation, as it has elected in § 1305 (a) to do.

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 and Mr. Justice Stewart also join Part I of the opinion.

1

19 U. S. C. § 1305 (a) provides in pertinent part:

“AH 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 ordinaria actions or suits.”

2

The United States urges that we find time limits in 19 U. S. C. §§ 1602 and 1604. Section 1602 provides that customs agents who seize goods must "report every such seizure immediately” to the collector of the district, while § 1604 provides that, once a case has been turned over to a United States Attorney, it shall be his duty “immediately to inquire into the facts” and “forthwith to cause the proper proceedings to be commenced and prosecuted, without delay,” if he concludes judicial proceedings are appropriate. We need not decide, however, whether §§ 1602 and 1604 can properly be applied to cure the invalidity of § 1305 (a), for even if they were applicable, they would not provide adequate time limits and would not cure its invalidity. The two sections contain no specific time limits, nor do they require the collector to act promptly in referring a matter to the United States Attorney for prosecution. Another flaw is that § 1604 requires that, if the United States Attorney declines to prosecute, he must report the facts to the Secretary of the Treasury for his direction, but the Secretary is under no duty to act with speed. The final flaw is that neither section requires the District Court in which a case is commenced to come promptly to a final decision.

3

The District Court’s opinion is not entirely clear. The court may have reasoned that Luros had a right to import the 37 photographs in question for planned distribution to the general public, but our decision today in United States v. Reidel, ante, p. 351, makes it clear that such reasoning would have been in error. On the other hand, the District Court may have reasoned that, while Luros had no right to import the photographs for distribution, a person would have a right under Stanley to import them for his own private use and that § 1305 (a) was therefore void as over-broad because it prohibits both sorts of importation. If this was the court’s reasoning, the proper approach, however, was not to invalidate the section in its entirety, but to construe it narrowly and hold it valid in its application to Luros. This was made clear in Dombrowski v. Pfister, 380 U. S. 479, 491-492 (1965), where the Court noted that, once the overbreadth of a statute has been sufficiently dealt with, it may be applied to prior conduct foreseeably within its valid sweep.