United States v. Thirty-seven Photographs

United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), is a United States Supreme Court decision in an _in rem _ case on procedures following the seizure of imported obscene material. A 6–3 court held that the federal statute governing the seizures was not in violation of the First Amendment as long as the government began forfeiture proceedings within 14 days of the seizure.

The case began with the seizure of the photographs, depicting various sexual positions , from Milton Luros , a Southern California publisher who was returning from Europe . He had intended to use them to illustrate a volume of the _Kama Sutra _, or failing that, to keep them for his own personal use. A district court panel, guided by the Court's _Freedman v. Maryland _ decision of several years before, rejected his claims that the First Amendment allowed citizens to import obscene material, but found the statute unconstitutional due to the lack of time limits and ordered the Customs Service to return the images to Luros. The government appealed directly to the Supreme Court.

Justice Byron White wrote for the majority , distinguishing the case from _Freedman v. Maryland _, which had also involved time limits, by noting that it was a federal statute rather than a state one and therefore the Court could give it an authoritative construction. John Marshall Harlan and Potter Stewart also wrote concurring opinions expanding on aspects of the majority holding. Stewart did not agree with the majority that the ban on personal importation of obscene material was consistent with _Stanley v. Georgia _.

The dissenting justices wrote two opinions. Hugo Black and William O. Douglas took issue with every aspect of the holding, believing the government had no power to regulate obscenity. Thurgood Marshall agreed with them and Stewart that the blanket importation ban was constitutional. That issue would be reconsidered in a similar case two years later, _United States v. 12 200-ft. Reels of Film _. The case would have little impact on the future development of obscenity law . It has, however, been cited as the first forfeiture case to deal with the question of time limits, and also reaffirmed a principle by which the Court avoids dealing with constitutional questions when it can through alternative constructions.

Contents

• 1 Background of the case

• 2 Underlying dispute

• 3 In district court

• 4 Before the Court

• 5 Decision

  • 5.1 Majority opinion

  • 5.2 Concurrences

  • 5.3 Dissents

• 6 Subsequent jurisprudence

  • 6.1 United States v. 12 200-ft. Reels of Film

  • 6.2 Other cases

• 7 See also

• 8 Notes

• 9 References

• 10 External links

Background of the case

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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 . Second Circuit judges Learned Hand and Augustus Hand upheld Woolsey on appeal, 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 _. 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 iss

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