Customs agents seized as obscene photographs possessed by
claimant Luros when he returned to this country from Europe on
October 24, 1969. Section 1305(a) of 19 U.S.C. pursuant to which
the agents acted, prohibits the importation of obscene material,
provides for its seizure at any customs office and retention
pending the judgment of the district court, and specifies that the
collector of customs give information of the seizure to the
district attorney, who shall institute forfeiture proceedings. The
agents referred the matter to the United States Attorney, who
brought forfeiture proceedings on November 6. Luros' answer denied
that the photographs were obscene and counterclaimed that § 1305(a)
was unconstitutional. He asked for a three-judge court, which, on
November 20, was ordered to be convened. Following a hearing on
January 9, 1970, the court on January 27 held § 1305(a)
unconstitutional on the grounds that the statute (1) failed to meet
the procedural requirements of Freedman v. Maryland,
380 U. S. 51
(2) was overly broad as including within its ban obscene material
for private use, making it invalid under Stanley v.
Georgia, 394 U. S. 557
The judgment is reversed and the case remanded.
Pp. 402 U. S.
, reversed and remanded.
MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE
HARLAN, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE
BLACKMUN, concluded in Part I that § 1305(a) can 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, supra.
402 U. S.
(a) In Freedman,
unlike the situation here, the statute
failing to specify time limits was enacted pursuant to state
authority, and could not be given an authoritative construction by
this Court to avoid the constitutional issue. P. 402 U. S.
(b) The reading into § 1305(a) of the time limits required by
comports with the legislative purpose of the
Page 402 U. S. 364
and furthers the policy of statutory construction to avoid a
constitutional issue. Pp. 37373.
(c) Section 1305(a) may be constitutionally applied as construed
to require intervals of no longer 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 (absent claimant-induced
delays). Pp. 402 U. S.
MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN, and MR. JUSTICE BLACKMUN, concluded in Part II that
Congress' constitutional power to remove obscene materials from the
channels of commerce is unimpaired by this Court's decision in
Stanley, supra. Cf. United States v. Reidel,
p. 402 U. S. 351
402 U. S.
MR. JUSTICE HARLAN concluded that Luros, who stipulated with the
Government that the materials were imported for commercial
purposes, lacked standing to challenge the statute for overbreadth
on the ground that it applied to importation for private use. P.
402 U. S.
MR. JUSTICE STEWART while agreeing that the First Amendment does
not prevent the border seizure of obscene materials imported for
commercial dissemination and that Freedman v. Maryland,
380 U. S. 51
imposes time limits for initiating forfeiture proceedings and
completing the judicial obscenity determination, would not even
intimate that the Government may lawfully seize literature intended
for the importer's purely private use. P. 402 U. S.
WHITE, J., announced the Court's judgment and delivered an
opinion in which (as to Part I) BURGER, C.J., and HARLAN, BRENNAN,
STEWART, and BLACKMUN, JJ., joined, and in which (as to Part II),
BURGER, C.J., and BRENNAN and BLACKMUN, JJ., joined. HARLAN, J.,
p. 402 U. S. 377
and STEWART, J., post,
p. 402 U. S. 378
filed opinions concurring in the judgment and concurring in Part I
of WHITE, J.'s opinion. BLACK, J., filed a dissenting opinion, in
which DOUGLAS, J., joined, post,
p. 402 U. S. 379
MARSHALL, J., filed a dissenting opinion, ante,
402 U. S.
Page 402 U. S. 365
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), [Footnote
Page 402 U. S. 366
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
Vatsyayana, 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.
(CD Cal.1970). The judgment of invalidity rested on two
grounds: first, that the section failed to comply with the
procedural requirements of
Page 402 U. S. 367
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.
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 380 U. S. 58
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
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 380 U. S.
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
390 U. S. 141
(1968). So, too, in Blount v. Rizzi, 400 U.
Page 402 U. S. 368
(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
the shortest fixed period compatible with sound judicial
As enacted by Congress, § 1305(a) does not contain explicit time
limits of the sort required by Freedman, Teitel,
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
Page 402 U. S. 369
It is true that we noted in Blount
that "it is for
Congress, not this Court, to rewrite the statute," 400 U.S. at
400 U. S. 419
and that we similarly refused to rewrite Maryland's statute and
Chicago's ordinance in Freedman
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
285 U. S. 62
(1932). Accord, e.g., Haynes v. United States,
390 U. S. 85
390 U. S. 92
(1968) (dictum); Schneider v. Smith, 390 U. S.
, 390 U. S. 27
(1968); United States v. Rumely, 345 U. S.
, 345 U. S. 45
(1953); Ashwander v. Tennessee Valley Authority,
297 U. S. 288
297 U. S. 348
(1936) (Brandeis, J., concurring). This cardinal principle did not
govern Freedman, Teitel,
the statutes there involved could not be construed so as to avoid
all constitutional difficulties.
The obstacle in Freedman
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 380 U. S. 59
and we lack jurisdiction authoritatively to construe state
legislation. Cf. General Trading Co. v. State Tax Comm'n,
322 U. S. 335
322 U. S. 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
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
Page 402 U. S. 370
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
400 U.S. at 400 U. S. 420
No such obstacles confront us in construing § 1305(a). In fact,
the reading into the section of the time limits required by
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.
(remarks of Sen.
Page 402 U. S. 371
Dill), preferring that determinations of obscenity should be
left to courts and juries. See, e.g., id.
4448, 4452-4459; 72 Cong.Rec. 5417-542, 5492, 5497. Senators also
expressed the concern later expressed in Freedman
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
to the nearest United States district attorney having authority
under the law to proceed to confiscate. . . ." Id.
(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.
5422. Then he added:
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."
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
380 U. S. 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
Page 402 U. S. 372
months between seizure of obscene goods and commencement of
judicial proceedings. See United States v. 77 Cartons of
Magazines, 300 F.
(ND Cal.1969); United States v. One Carton
Positive Motion Picture Film Entitled "491," 247 F.
(SDNY 1965), rev'd on other grounds,
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.
(Md.1970); United States v. 6 MM Color Motion
Picture Film Entitled "Lanuae 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
Page 402 U. S. 373
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
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.
(Md.1966); United States v. 6 Cartons Containing
19,500 Copies of a Magazine Entitled "Hellenic Sun,"
Supp. 498 (Md.1966), aff'd,
373 F.2d 635 (CA4 1967);
United States v. 92 Copies of a Magazine Entitled
"Exclusive," 253 F.
(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. 66 Cartons
Containing 19,500 Copies of a Magazine Entitled "Hellenic Sun,"
supra; United States v. 92 Copies of a Magazine Entitled
"Exclusive," supra; United States v. 127,29 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
Page 402 U. S. 374
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
reenact 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
Page 402 U. S. 375
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.
We next consider Luros' second claim, which is based upon
Stanley v. Georgia, supra.
On the authority of
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
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. [Footnote 3
Page 402 U. S. 376
The trial court erred in reading Stanley
from seizure obscene materials possessed at a port of entry for the
purpose of importation for private use. In United States v.
p. 402 U. S. 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
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.
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
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,
is not within the scope of First Amendment protection. Hence,
Page 402 U. S. 377
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
p. 402 U. S.
* MR. JUSTICE HARLAN and MR. JUSTICE STEWART also join Part I of
119 U.S.C. § 1305(a) provides in pertinent part:
"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,
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
"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
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.
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,
p. 402 U. S. 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 overbroad
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.
, 380 U. S.
-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.
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 402 U.
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,
p. 402 U. S. 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
Page 402 U. S. 378
were imported for commercial purposes, Luros cannot claim that
his primary conduct was not intended to be within the statute's
sweep. Cf. Dombrowski v. Pfister, 380 U.
, 380 U. S.
-492 (1965). Finally, the statute includes a
severability clause. 19 U.S.C. § 1652.
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
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.*
* Again, as in United States v. Reidel, supra,
obscenity vel non
of the seized materials is not presented
at this juncture of the case.
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 402 U.
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
Page 402 U. S. 379
But I would not in this case decide, even by way of dicta, that
the Government may lawfully seize literary material intended for
the purely private use of the importer. [Footnote 2/1
] The terms of the statute appear to apply
to an American tourist who, after exercising his constitutionally
protected liberty to travel abroad, [Footnote 2/2
] returns home with a single book in his
luggage, with no intention of selling it or otherwise using it,
except to read it. If the Government can constitutionally take the
book away from him as he passes through customs, then I do not
understand the meaning of Stanley v. Georgia, 394 U.
As MR. JUSTICE WHITE's opinion correctly says, even if seizure
of material for private use is unconstitutional, the statute can
still stand in appropriately narrowed form, and the seizure in this
case clearly falls within the valid sweep of such a narrowed
at 402 U. S. 375
Aptheker v. Secretary of State, 378 U.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
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
361 U. S. 155
(1959) (BLACK, J., concurring); Ginzburg v. United States,
383 U. S. 463
383 U. S. 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
Page 402 U. S. 380
in this area demonstrate, it is extremely difficult for judges
or any other citizens to agree on what is "obscene." Since the
distinctions between protected speech and "obscenity" are so
elusive and obscure, almost every "obscenity" case involves
difficult constitutional issues. After Roth,
and those of other courts have constantly been crowded with cases
where judges are called upon to decide whether a particular book,
magazine, or movie may be banned. I have expressed before my view
that I can imagine no task for which this Court of lifetime judges
is less equipped to deal. Smith v. California, supra,
(BLACK, J., concurring).
In view of the difficulties with the Roth
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.
(1967). Despite the proved shortcomings of
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
reconciled with the holdings of
Page 402 U. S. 381
earlier cases. That opinion insists that the trial court erred
in reading Stanley v. Georgia, supra,
"as immunizing from
seizure obscene materials possessed at a port of entry for the
purpose of importation for private use." Ante
402 U. S. 376
But it is never satisfactorily explained just why the trial court's
reading of Stanley
was erroneous. It would seem to me
that, if a citizen had a right to possess "obscene" material in the
privacy of his home, he should have the right to receive it
voluntarily through the mail. Certainly when a man legally
purchases such material abroad, he should be able to bring it with
him through customs to read later in his home. The mere act of
importation for private use can hardly be more offensive to others
than is private perusal in one's home. 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.
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 402 U. S. 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,
Page 402 U. S. 382
that enforcement of a possession law was necessary because of
the difficulties of proving intent to distribute or actual
distribution. However, the Court unequivocally rejected that
argument because an individual's right to "read or observe what he
pleases" is so "fundamental to our scheme of individual liberty."
394 U.S. at 394 U. S.
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.
(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."
at 352 U. S. 383
Cf. Thornhill v. Alabama, 310 U. S.
(1940); United States v. Robel, 389 U.
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.
(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 402 U. S.
-369. Once the plurality has reached this
determination, the proper course would be to affirm the lower
Page 402 U. S. 383
But the plurality goes on to rewrite the statute by adding
specific time limits. The plurality then notes that the Government
here has conveniently stayed within these judicially manufactured
limits by one day, and, on that premise, it concludes the statute
may be enforced in this case. In my view, the plurality's action in
rewriting this statute represents a seizure of legislative power
that we simply do not possess under the Constitution.
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 380 U. S. 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
371 U. S. 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,
and in Blount v. Rizzi, 400 U.
(1971). After holding the Maryland movie
censorship law unconstitutional in Freedman,
"How or whether Maryland is to incorporate the required
procedural safeguards in the statutory
Page 402 U. S. 384
scheme is, of course, for the State to decide."
380 U.S. at 380 U. S. 60
With all deference, I would suggest hat 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
at 402 U. S. 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
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:
"Why would it not protect the public entirely if we were to
provide for the seizure as now provided and that the property
should be held by the officer seizing, and that he should
immediately report to the nearest United States district attorney
having authority under the law to proceed to confiscate. . . ."
72 Cong.Rec. 5240.
Page 402 U. S. 385
A few minutes later, Senator Walsh of Montana announced he would
propose an amendment "that would meet the suggestion made by the
Senator from Nevada [Mr. Pittman]. . . ." Id.
at 5421. As
Senator Walsh first presented his amendment, it read:
"Upon the appearance of any such book or other matter at any
customs office, the collector thereof shall immediately
transmit information thereof to the district attorney of the
district in which such port is situated, who shall
institute proceedings in the district court
for the forfeiture and destruction of the same. . . ."
(Emphasis added.) 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:
"Upon the seizure of such book or matter the collector shall
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."
at 5424. (Emphasis added.) 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
Page 402 U. S. 386
to provides no support that I can see for the Court's action
today. To the extent that these debates tell us anything about the
Senate's attitude toward prompt judicial review of censorship
decisions they show simply that the issue was put before the Senate
but that it did not choose to require prompt judicial review.
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 400 U. S. 419
The plurality in its opinion now seeks to distinguish
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 402 U. S. 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
402 U. S. 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,
and Teitel Film Corp. v. Cusack, 390 U.
(1968), also contained
Page 402 U. S. 387
severability provisions. See
Md.Ann.Code, Art. 66A, §
24 (1957), Municipal Code of Chicago § 155-7.4 (1961).
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
402 U. S. 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.
at 402 U. S. 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.
Page 402 U. S. 388
I do not understand why the plurality feels so free to abandon
previous precedents protecting the cherished freedoms of press and
speech. I cannot, of course, believe it is bowing to popular
passions and what it perceives to be the temper of the times. As I
have said before,
"Our Constitution was not written in the sands to be washed away
by each wave of new judges blown in by each successive political
wind that brings new political administrations into temporary
Turner v. United States, 396 U.
, 396 U. S. 426
(1970) (BLACK, J., dissenting). In any society, there come times
when the public is seized with fear and the importance of basic
freedoms is easily forgotten. I hope, however,
"that, in calmer times, when present pressures, passions and
fears subside, this or some later Court will restore the First
Amendment liberties to the high preferred place where they belong
in a free society."
Dennis v. United States, 341 U.
, 341 U. S. 581
(1951) (BLACK, J., dissenting).
* [This opinion applies also to No. 534, United States v.
p. 402 U. S.