United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was an in rem case decided by the United States Supreme Court that considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.
This case was very similar to United States v. Thirty-seven Photographs, a case the Court had heard two years earlier. It began when the films, and other visual and textual material with predominant explicit sexual content, were seized by customs agents from Paladini, a California man returning from Mexico. Federal law at the time prohibited the import of any material that might be judged to be obscene. Paladini challenged the forfeiture proceedings the government initiated, on the grounds that he intended the material for his personal use in the privacy of his own home, an activity the Court had ruled was protected under the First Amendment in Stanley v. Georgia. Thus, he argued, he had a right to obtain such material abroad for that purpose.
After a district court panel agreed with him and declared the statute unconstitutional, the case went to the Supreme Court directly. Its opinion was one of four obscenity cases handed down, along with Miller v. California, in which the Court announced a new standard of obscenity for the first time since Roth v. United States 17 years before. By a 5–4 margin, the Court held that the statute was constitutional, but it also ordered the district court to review the material under its new standard and consider whether it was still obscene.
Chief Justice Warren Burger wrote for the majority, reaffirming a similar holding in Thirty-seven Photographs that the right to possess something in one's home which might otherwise be unlawful outside of it did not give rise to a right to import it. William O. Douglas wrote a lengthy dissent, responding as much to the majority holding in Miller, arguing that history showed obscenity laws were not vigorously enforced at the time the Bill of Rights was adopted and thus could not be justified on traditionalist grounds. William Brennan wrote a shorter dissent, joined by the other two justices, calling the statute overbroad.
Background of the case For most of American history, literary and artistic works depicting, or even alluding to, sexual acts and topics or using profane language had been banned from publication or distribution, often by both confiscation of the works themselves and criminal prosecution of all individuals involved, following the traditions of English common law on obscenity and statutes at the state and federal levels. At the same time, demand for such materials continued, and the laws were often widely flouted. No defendant or claimant in such an action had ever persuaded a court to entertain the argument that the First Amendment's guarantees of free speech and free expression barred them.
That began to change during the 20th century, in response to social and cultural trends of greater tolerance for literature and art that depicted such proscribed material. In the landmark 1933 case United States v. One Book Called Ulysses, Judge John M. Woolsey of the Southern District of New York ruled that James Joyce's novel Ulysses, chapters of which had been held obscene over a decade earlier when published in a literary review, could not be barred from the United States purely on the basis of its language and content without considering its literary merit.United States v. One Book Called Ulysses, 5 F.Supp. 182 (S.D.N.Y., 1933). Second Circuit judges Learned and Augustus Hand upheld Woolsey on appeal,, 72 F.2d 705 (2nd Cir., 1934) and the book, considered a masterpiece of modernist literature, could be freely published and sold.
Censorship battles continued in the next decades over other works of literature and art, such as Lady Chatterley's Lover, expanding to include films. In 1957, the Supreme Court finally considered a case arising from an obscenity prosecution, Roth v. United States.Roth v. United States, . William Brennan wrote for a 6–3 majority that upheld the criminal conviction but abandoned the century-old Hicklin test in favor of a narrower definition of obscenity. It did not settle the issue, however, and the Warren Court had to hear more cases arising from subsequent prosecutions in the next decade, during which the Sexual Revolution began a more direct challenge to social mores on the issue.
In some of those cases, like Memoirs v. Massachusetts, the justices realized their Roth standard was inadequate, but they could not agree on a new one.Memoirs v. Massachusetts, . The search for a workable legal definition of obscenity led to Potter Stewart's famous line "I know it when I see it" in Jacobellis v. Ohio.Jacobellis v. Ohio, . Other Court decisions restricted the scope under which obscenity could be suppressed. Freedman v. Maryland held that local film boards could not ban films, effectively eliminating them, and that they had to approve a film within a specified period of time.Freedman v. Maryland, . In Stanley v. Georgia, the Court held that possession of obscene material in the privacy of the home was constitutionally protected as well.Stanley v. Georgia, .
United States v. Thirty-seven Photographs United States v. Thirty-seven Photographs, like its companion case United States v. Reidel,United States v. Reidel, . was a Stanley-inspired challenge to the laws against the distribution of obscenity. In October 1969, Milton Luros, an adult-magazine publisher from Southern California, had challenged the seizure of the photographs, depicting naked heterosexual couples in various sexual positions, on his return to Los Angeles from Europe. He claimed he later planned to use them to illustrate a copy of the Kama Sutra.United States v. Thirty-seven Photographs, .
In addition to arguing that Stanley gave him the right to import such material, Luros also challenged the procedures of the case under the Fifth Amendment, pointing out that the statute, Section 1305 of Title 18 of the United States Code, did not give a time frame within which the government had to begin forfeiture proceedings against the seized material and did not even require the government move in a timely fashion. A panel of two judges from the Central District of California and one judge from the Ninth Circuit Court of Appeals disagreed with him on the Stanley claim but found the lack of a time limit alone enough to hold Section 1305 unconstitutional.United States v. Thirty-seven (37) Photographs, 390 F.Supp. 36, 37 (C.D. Cal., 1970).
The statute provided for direct appeal to the Supreme Court, which heard the case in 1971. By a 6–3 margin, the Supreme Court reversed the district court panel. "[A] port of entry is not a traveler's home," Justice Byron White wrote for the majority. "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."Thirty-seven Photographs, 402 U.S. at 376, White, J. Justice White found the Stanley argument less applicable, since Luros had admitted to the intent of commercial use.
However, Justice White agreed that without a time limit for when forfeiture proceedings had to begin, Section 1305 was an unconstitutional violation of due-process rights. Since Court doctrine holds that if it is possible to construe a statute in a way that avoids the constitutional question, it should be done, White construed Section 1305 to require a 14-day maximum time-frame from initial seizure to forfeiture filing.Thirty-seven Photographs, 402 U.S. at 371–73. In separate concurrences, John Marshall Harlan II defended the statute against Luros's claim it was overbroadThirty-seven Photographs, 402 U.S. at 377–78, Harlan, J., concurring. and Potter Stewart indicated his disagreement with the majority holding that Stanley did not extend to importing obscene material.Thirty-seven Photographs, 402 U.S. at 378–79, Stewart, J., concurring.
In dissent, Hugo Black, joined by William O. Douglas, reiterated his opposition to legally enforceable obscenity, and he attacked the majority both for usurping the legislative prerogative of imposing a time limit where there had been none and not extending Stanley: "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."Thirty-seven Photographs, 402 U.S. at 379, 380 et seq., Black, J., dissenting. Thurgood Marshall's dissent was at Reidel, where he felt that, since Luros had those pictures in his private personal possession when he cleared customs, Stanley was applicable.Reidel, 402 U.S. at 361, Marshall, J., dissenting.
Underlying dispute Paladini returned to Los Angeles International Airport after a trip to Mexico in April 1970. Customs agents inspecting his belongings discovered "movie films, color slides, photographs, and other printed and graphic material" of a possibly obscene nature, and confiscated them, without charging Paladini. Paladini claimed that they were for his own personal use, and he challenged the asset forfeiture proceedings as Luros had before him.United States v. 12 200-ft. Reels of Film, , 125, Burger, C.J. Since he had not been criminally charged, the case was an in rem civil forfeiture action, with the reels of film and other items named as defendants.
Unlike Luros, he alleged no procedural defect in Section 1305. Instead, he argued that the entire statute was unconstitutional, since Stanley v. Georgia had held that the First Amendment protected the right to possess, read and view obscene material in the home and that allowed him to import such material for that use. The district court panel agreed, citing Thirty-seven Photographs, and struck down the statute. Again, the government appealed directly to the Supreme Court.
Before the Court The Court, as it had in Thirty-seven Photographs, granted certiorari and agreed to hear the case. Oral argument in Reels of Film was held in January 1972, with no decision for the rest of the term, since the Court had agreed to take some other obscenity cases. Before the beginning of the October 1972 term, Justices Hugo Black and John Marshall Harlan II retired, their deaths imminent. President Richard Nixon appointed William Rehnquist and Lewis Powell to replace them. Arguments were reheard in November 1972.
Thomas Kuchel, recently defeated in his re-election bid for his U.S. Senate seat from California, argued the case for the claimant at rehearing, by invitation of the Court. Solicitor General Erwin Griswold argued the case for the government. Amicus curiae briefs were filed by the American Civil Liberties Union and First Amendment Lawyers Association in support.
Decision In June 1973, near the end of the term, the Court handed down its opinion in all five cases. In Miller v. California, it succeeded, where it had failed seven years earlier in Memoirs v. Massachusetts, producing a new standard for obscenity that superseded the 1957 Roth v. United States holding. Miller impacted all the cases decided that day.
As he had in Miller, Chief Justice Warren Burger wrote for a five-justice majority in Reels of Film. He reaffirmed the Thirty-seven Photographs holding on the import ban, finding no distinction for private use and noting how holding it a protected activity could create a loophole that would make other laws intended to suppress the domestic distribution of obscenity ineffectual. However, in this case, the majority ordered the case remanded to district court to determine whether Paladini's materials were obscene under Miller, which called for "contemporary community standards" to be applied, rather than a national standard.