author: Mr. Chief Justice Burger Mr. Justice Brennan,

text:
    KAPLAN v. CALIFORNIA
    No. 71-1422.
    Argued October 19, 1972 —
    Decided June 21, 1973
    Burger, C. J., delivered the opinion of the Court, in which White, BlacKmun, Powell, and Rehnquist, JJ., joined. Douglas, J., would vacate and remand for dismissal of the criminal complaint, post, p. 122. BrenNAN, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 122.

      Stanley Fleishman argued the cause for petitioner. With him on the briefs were David M. Brown and Sam Rosenwein.

      Ward Glen McConnell argued the cause for respondent. With him on the brief were Roger Arnebergh and David M. Schacter.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to the Appellate Department of the Superior Court of California for the County of Los Angeles to review the petitioner’s conviction for violation of California statutes regarding obscenity.

Petitioner was the proprietor of the Peek-A-Boo Bookstore, one of the approximately 250 "adult” bookstores in the city of Los Angeles, California. On May 14, 1969, in response to citizen complaints, an undercover police officer entered the store and began to peruse several books and magazines. Petitioner advised the officer that the store "was not a library.” The officer then asked petitioner if he had “any good sexy books.” Petitioner replied that “all of our books are sexy” and exhibited a lewd photograph. At petitioner’s recommendation, and after petitioner had read aloud a sample paragraph, the officer purchased the book Suite 69. On the basis of this sale, petitioner was convicted by a jury of violating California Penal Code § 311.2, a misdemeanor.

The book, Suite 69, has a plain cover and contains no pictures. It is made up entirely of repetitive descriptions of physical, sexual conduct, “clinically” explicit and offensive to the point of being nauseous; there is only the most tenuous “plot.” Almost every conceivable variety of sexual contact, homosexual and heterosexual, is described. Whether one samples every 5th, 10th, or 20th page, beginning at any point or page at random, the content is unvarying.

At trial both sides presented testimony, by persons accepted to be “experts,” as to the content and nature of the book. The book itself was received in evidence, and read, in its entirety, to the jury. Each juror inspected the book. But the State offered no “expert” evidence that the book was “utterly without socially redeeming value,” or any evidence of “national standards.”

On appeal, the Appellate Department of the Superior Court of California for the County of Los Angeles affirmed petitioner’s conviction. Relying on the dissenting opinions in Jacobellis v. Ohio, 378 U. S. 184, 199, 203 (1964), and Mr. Justice White’s dissent in Memoirs v. Massachusetts, 383 U. S. 413, 462 (1966), it concluded that evidence of a “national” standard of obscenity was not required. It also decided that the State did not always have to present “expert” evidence that the book lacked “socially redeeming value,” and that “[i]n light. . . of the circumstances surrounding the sale” and the nature of the book itself, there was sufficient evidence to sustain petitioner’s conviction. Finally, the state court considered petitioner’s argument that the. book was not “obscene” as a matter of constitutional law. Pointing out that petitioner was arguing, in part, that all books were constitutionally protected in an absolute sense, it rejected that thesis. On “independent review,” it concluded “Suite 69 appeals to a prurient interest in sex and is beyond the customary limits of candor within the State of California.” It held that the book was not protected by the First Amendment. We agree.

This case squarely presents the issue of whether expression by words alone can be legally “obscene” in the sense of being unprotected by the First Amendment. When the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression. See Roth v. United States, 354 U. S. 476, 481-485 (1957). Obscenity can, of course, manifest itself in conduct, in the pictorial representation of conduct, or in the written and oral description of conduct. The Court has applied similarly conceived First Amendment standards to moving pictures, to photographs, and to words in books. See Freedman v. Maryland, 380 U. S. 51, 57 (1965); Jacobellis v. Ohio, supra, at 187-188; Times Film Corp. v. Chicago, 365 U. S. 43, 46 (1961); id., at 51 (Warren, C. J., dissenting); Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 689-690 (1959); Superior Films, Inc. v. Dept. of Education, 346 U. S. 587, 589 (1954) (Douglas, J., concurring) ; Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503 (1952).

Because of a profound commitment to protecting communication of ideas, any restraint on expression by way of the printed word or in speech stimulates a traditional and emotional response, unlike the response to obscene pictures of flagrant human conduct. A book seems to have a different and preferred place in our hierarchy of values, and so it should be. But this generalization, like so many, is qualified by the book’s content. As with pictures, films, paintings, drawings, and engravings, both oral utterance and the printed word have First Amendment protection until they collide with the long-settled position of this Court that obscenity is not protected by the Constitution. Miller v. California, ante, at 23-25; Both v. United States, supra, at 483-485.

For good or ill, a book has a continuing life. It is passed hand to hand, and we can take note of the tendency of widely circulated books of this category to reach the impressionable young and have a continuing impact. A State could reasonably regard the “hard core” conduct described by Suite 69 as capable of encouraging or causing antisocial behavior, especially in its impact on young people. States need not wait until behavioral experts or educators can provide empirical data before enacting controls of commerce in obscene materials unprotected by the First Amendment or by a constitutional right to privacy. We have noted the power of a legislative body to enact such regulatory laws on the basis of unprovable assumptions. See Paris Adult Theatre I v. Slaton, ante, at 60-63.

Prior to trial, petitioner moved to dismiss the complaint on the basis that sale of sexually oriented material to consenting adults is constitutionally protected. In connection with this motion only, the prosecution stipulated that it did not claim that petitioner either disseminated any material to minors or thrust it upon the general public. The trial court denied the motion. Today, this Court, in Paris Adult Theatre I v. Slaton, ante, at 68-69, reaffirms that commercial exposure and sale of obscene materials to anyone, including consenting adults, is subject to state regulation. See also United States v. Orito, post, at 141-144; United States v. 12 200-ft. Reels of Film, post, at 128; United States v. Thirty-seven Photographs, 402 U. S. 363, 376 (1971) (opinion of White, J.); United States v. Reidel, 402 U. S. 351, 355-356 (1971). The denial of petitioner’s motion was, therefore, not error.

At trial the prosecution tendered the book itself into evidence and also tendered, as an expert witness, a police officer in the vice squad. The officer testified to extensive experience with pornographic materials and gave his opinion that Suite 69, taken as a whole, predominantly appealed to the prurient interest of the average person in the State of California, “applying contemporary standards,” and that the book went “substantially beyond the customary limits of candor” in the State of California. The witness explained specifically how the book did so, that it was a purveyor of perverted sex for its own sake. No “expert” state testimony was offered that the book was obscene under “national standards,” or that the book was “utterly without redeeming social importance,” despite “expert” defense testimony to the contrary.

In Miller v. California, ante, p. 15, the Court today holds that the “ ‘contemporary community standards of the State of California,’ ” as opposed to “national standards,” are constitutionally adequate to establish whether a work is obscene. We also reject in Paris Adult Theatre I v. Slaton, ante, p. 49, any constitutional need for “expert” testimony on behalf of the prosecution, or for any other ancillary evidence of obscenity, once the allegedly obscene material itself is placed in evidence. Paris Adult Theatre I, ante, at 56. The defense should be free to introduce appropriate expert testimony, see Smith v. California, 361 U. S. 147, 164-165 (1959) (Frankfurter, J., concurring), but in “the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question.” Ginzburg v. United States, 383 U. S. 463, 465 (1966). See United States v. Groner, 479 F. 2d 577, 579-586 (CA5 1973). On the record in this case, the prosecution’s evidence was sufficient, as a matter of federal constitutional law, to support petitioner’s conviction.

Both Miller v. California, supra, and this case involve California obscenity statutes. The judgment of the Appellate Department of the Superior Court of California for the County of Los Angeles is vacated, and the case remanded to that court for further proceedings not inconsistent with this opinion, Miller v. California, supra, and Paris Adult Theatre I v. Slaton, supra. See United States v. 12 200-ft. Reels of Film, post, at 130 n. 7, decided today.

Vacated and remanded.

Mr. Justice Douglas would vacate and remand for dismissal of the criminal complaint under which petitioner was found guilty because “obscenity” as defined by the California courts and by this Court is too vague to satisfy the requirements of due process. See Miller v. California, ante, p. 37 (Douglas, J., dissenting).

Mr. Justice Brennan,

with whom Mr. Justice Stewart and Mr. Justice Marshall join, dissenting.

I would reverse the judgment of the Appellate Department of the Superior Court of California and remand the case for further proceedings not inconsistent with my dissenting opinion in Paris Adult Theatre I v. Slaton, ante, p. 73. See my dissent in Miller v. California, ante, p. 47.

       The number of these stores was so estimated by both parties at oral argument. These stores purport to bar minors from the premises. In this case there is no evidence that petitioner sold materials to juveniles. Cf. Miller v. California, ante, at 18-20.

       The California Penal Code § 311.2, at the time of the commission of the alleged offense, read in relevant part:
      “(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . .”
      California Penal Code § 311, at the time of the commission of the alleged offense, provided as follows:
      “As used in this chapter:
      “(a) ‘Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.
      “(b) ‘Matter’ means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.
      “(c) ‘Person’ means any individual, partnership, firm, association, corporation, or other legal entity.
      “(d) ‘Distribute’ means to transfer possession of, whether with or without consideration.
      “(e) ‘Knowingly’ means having knowledge that the matter is obscene.”

       This Court, since Roth v. United States, 354 U. S. 476 (1957), has only once held books to be obscene. That case was Mishkin v. New York, 383 U. S. 502 (1966), and the books involved were very similar in content to Suite 69. But most of the Mishkin books, if not all, were illustrated. See id., at 505, 514-515. Prior to Roth, this Court affirmed, by an equally divided Court, a conviction for sale of an unillustrated book. Doubleday & Co., Inc. v. New York, 335 U. S. 848 (1948). This Court has always rigorously scrutinized judgments involving books for possible violation of First Amendment rights, and has regularly reversed convictions on that basis. See Childs v. Oregon, 401 U. S. 1006 (1971); Walker v. Ohio, 398 U. S. 434 (1970); Keney v. New York, 388 U. S. 440 (1967); Friedman v. New York, 388 U. S. 441 (1967); Sheperd v. New York, 388 U. S. 444 (1967); Avansino v. New York, 388 U. S. 446 (1967); Corinth Publications, Inc. v. Wesberry, 388 U. S. 448 (1967); Books, Inc. v. United States, 388 U. S. 449 (1967); A Quantity of Books v. Kansas, 388 U. S. 452 (1967); Redrup v. New York, 386 U. S. 767 (1967); Memoirs v. Massachusetts, 383 U. S. 413 (1966); Tralins v. Gerstein, 378 U. S. 576 (1964); Grove Press, Inc. v. Gerstein, 378 U. S. 577 (1964); A Quantity of Books v. Kansas, 378 U. S. 205 (1964); Marcus v. Search Warrant, 367 U. S. 717 (1961); Smith v. California, 361 U. S. 147 (1959); Kingsley Books, Inc. v. Brown, 354 U. S. 436 (1957).

       See Paris Adult Theatre I v. Slaton, ante, at 58 n. 7; Report of the Commission on Obscenity and Pornography 401 (1970) (Hill-Link Minority Report).

       As the prosecution’s introduction of the book itself into evidence was adequate, as a matter of federal constitutional law, to establish the book’s obscenity, we need not consider petitioner’s claim that evidence of pandering was wrongly considered on appeal to support the jury finding of obscenity. Petitioner’s additional claims that his conviction was affirmed on the basis of a “theory” of “pandering” not considered at trial and that he was subjected to retroactive application of a state statute are meritless on the record.


source: Caselaw Access Project

author: Mr. Chief Justice Burger Mr. Justice Douglas, Mb. Justice Brennan,

license: Public Domain

text:
    UNITED STATES v. 12 200-FT. REELS OF SUPER 8MM. FILM et al. (PALADINI, CLAIMANT)
    No. 70-2.
    Argued January 19, 1972 —
    Reargued November 7, 1972—
    Decided June 21, 1973
    Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 130. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 138.

      Solicitor General Griswold reargued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Deputy Solicitor General Greenawalt, and Sidney M. Glaser.

      Thomas H. Kuchel, by invitation of the Court, 404 U. S. 813, reargued the cause as amicus curiae in support of the judgment below. With him on the brief were Edward Weinberg, George Miron, and Ezra C. Levine.

      Briefs of amici curiae urging affirmance were filed by Melvin L. Widf and Joel M. Gora for the American Civil Liberties Union; by
        Joel Hirschhorn, Ralph J. Schwarz, Jr., and Mel S. Friedman for the First Amendment Lawyers’ Assn.; and by Harvey A. Silverglate for Christopher W. Walker.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We noted probable jurisdiction to review a summary-decision of the United States District Court for the Central District of California holding that § 305(a) of the Tariff Act of 1930, 46 Stat. 688, as amended, 19 U. S. C. § 1305 (a) was “unconstitutional on its face” and dismissing a forfeiture action brought under that statute. The statute 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 appropriate customs officer 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.”

On April 2, 1970, the claimant Paladini sought to carry movie films, color slides, photographs, and other printed and graphic material into the United States from Mexico. The materials were seized as being obscene by customs officers at a port of entry, Los Angeles Airport, and made the subject of a forfeiture action under 19 U. S. C. § 1305 (a). The District Court dismissed the Government’s complaint, relying on the decision of a three-judge district court in United States v. Thirty-seven Photographs, 309 F. Supp. 36 (CD Cal. 1970), which we later reversed, 402 U. S. 363 (1971). That case concerned photographs concededly imported for commercial purposes. The narrow issue directly presented in this case, and not in Thirty-seven Photographs, is whether the United States may constitutionally prohibit importation of obscene material which the importer claims is for private, personal use and possession only.

Import restrictions and searches of persons or packages at the national borders rest on different considerations and different rules of constitutional law from domestic regulations. The Constitution gives Congress broad, comprehensive powers “[t]o regulate Commerce with foreign Nations.” Art. I, § 8, cl. 3. Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry. See United States v. Thirty-seven Photographs, 402 U. S., at 376-377 (opinion of White, J.); Carroll v. United States, 267 U. S. 132, 154 (1925); Brolan v. United States, 236 U. S. 216, 218 (1915); Boyd v. United States, 116 U. S. 616, 623-624 (1886); Alexander v. United States, 362 F. 2d 379, 382 (CA9), cert. denied, 385 U. S. 977 (1966). The plenary power of Congress to regulate imports is illustrated in a holding of this Court which sustained the validity of an Act of Congress prohibiting the importation of “any film or other pictorial representation of any prize fight . . . designed to be used or [that] may be used for purposes of public exhibition” in view of “the complete power of Congress over foreign commerce and its authority to prohibit the introduction of foreign articles .... Buttfield v. Stranahan, 192 U. S. 470; The Abby Dodge, 223 U. S. 166, 176; Brolan v. United States, 236 U. S. 216.” Weber v. Freed, 239 U. S. 325, 329 (1915).

Claimant relies on the First Amendment and our decision in Stanley v. Georgia, 394 U. S. 557 (1969). But it is now well established that obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476, 485 (1957), reaffirmed today in Miller v. California, ante, at 23. As we have noted in United States v. Orito, post, at 141-143, also decided today, Stanley depended, not on any First Amendment right to purchase or possess obscene materials, but on the right to privacy in the home. Three concurring Justices indicated that the case could have been disposed of on Fourth Amendment grounds without reference to the nature of the materials. Stanley v. Georgia, supra, at 569 (Stewart, J., joined by Brennan and White, JJ., concurring).

In particular, claimant contends that, under Stanley, the right to possess obscene material in the privacy of the home creates a right to acquire it or import it from another country. This overlooks the explicitly narrow and precisely delineated privacy right on which Stanley rests. That holding reflects no more than what Mr. Justice Harlan characterized as the law’s “solicitude to protect the privacies of the life within [the home].” Poe v. Ullman, 367 U. S. 497, 551 (1961) (dissenting opinion). The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth, or fifth “logical” extension occurs. Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance. This kind of gestative propensity calls for the “line drawing” familiar in the judicial, as in the legislative process: “thus far but not beyond.” Perspectives may change, but our conclusion is that Stanley represents such a line of demarcation; and it is not unreasonable to assume that had it not been so delineated, Stanley would not be the law today. See United States v. Reidel, 402 U. S. 351, 354-356 (1971); id., at 357-360 (Harlan, J., concurring). See also Miller v. United States, 431 F. 2d 655, 657 (CA9 1970); United States v. Fragus, 428 F. 2d 1211, 1213 (CA5 1970); United States v. Melvin, 419 F. 2d 136, 139 (CA4 1969); Gable v. Jenkins, 309 F. Supp. 998, 1000-1001 (ND Ga. 1969), aff’d, 397 U. S. 592 (1970). Cf. Karalexis v. Byrne, 306 F. Supp. 1363, 1366 (Mass. 1969), vacated on other grounds, 401 U. S. 216 (1971).

We are not disposed to extend the precise, carefully limited holding of Stanley to permit importation of admittedly obscene material simply because it is imported for private use only. To allow such a claim would be not unlike compelling the Government to permit importation of prohibited or controlled drugs for private consumption as long as such drugs are not for public distribution or sale. We have already indicated that the protected right to possess obscene material in the privacy of one’s home does not give rise to a correlative right to have someone sell or give it to others. United States v. Thirty-seven Photographs, supra, at 376 (opinion of White, J.), and United States v. Reidel, supra, at 355. Nor is there any correlative right to transport obscene material in interstate commerce. United States v. Orito, post, at 142-144. It follows that Stanley does not permit one to go abroad and bring such material into the country for private purposes. “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.” United States v. Thirty-seven Photographs, supra, at 376 (opinion of White, J.).

This is not to say that Congress could not allow an exemption for private use, with or without appropriate guarantees such as bonding, or permit the transportation of obscene material under conditions insuring privacy. But Congress has not seen fit to do so, and the holding in Roth v. United States, supra, read with the narrow holding of Stanley v. Georgia, supra, does not afford a basis for claimant’s arguments. The Constitution does not compel, and Congress has not authorized, an exception for private use of obscene material. See Paris Adult Theatre I v. Slaton, ante, at 64-69; United States v. Reidel, supra, at 357; Memoirs v. Massachusetts, 383 U. S. 413, 462 (1966) (White, J., dissenting).

The attack on the overbreadth of the statute is thus foreclosed, but, independently, we should note that it is extremely difficult to control the uses to which obscene material is put once it enters this country. Even single copies, represented to be for personal use, can be quickly and cheaply duplicated by modern technology thus facilitating wide-scale distribution. While it is true that a large volume of obscene material on microfilm could rather easily be smuggled into the United States by mail, or otherwise, and could be enlarged or reproduced for commercial purposes, Congress is not precluded from barring some avenues of illegal importation because avenues exist that are more difficult to regulate. See American Power & Light Co. v. SEC, 329 U. S. 90, 99-100 (1946).

As this case came to us on the District Court’s summary dismissal of the forfeiture action, no determination of the obscenity of the materials involved has been made. We have today arrived at standards for testing the constitutionality of state legislation regulating obscenity. See Miller v. California, ante, at 23-25. These standards are applicable to federal legislation. The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion, Miller v. California, supra, and United States v. Orito, supra, both decided today.

Vacated and remanded.

Mr. Justice Douglas,

dissenting.

I know of no constitutional way by which a book, tract, paper, postcard, or film may be made contraband because of its contents. The Constitution never purported to give the Federal Government censorship or oversight over literature or artistic productions, save as they might be governed by the Patent and Copyright Clause of Art. I, § 8, cl. 8, of the Constitution. To be sure, the Colonies had enacted statutes which limited the freedom of speech, see Roth v. United States, 354 U. S. 476, 482-484, nn. 10-13, and in the early 19th century the States punished obscene libel as a common-law crime. Knowles v. State, 3 Day 103 (Conn. 1808) (signs depicting “monster”); Commonwealth v. Holmes, 17 Mass. 336 (1821) (John Cleland’s Memoirs of a Woman of Pleasure); State v. Appling, 25 Mo. 315, 316 (1857) (utterance of words “too vulgar to be inserted in this opinion”) ; Commonwealth v. Sharpless, 2 S. & R. 91, 92 (1815) (“lewd, wicked, scandalous, infamous, . . . and indecent posture with a woman”).

To construe this history, as this Court does today in Miller v. California, ante, p. 15, as qualifying the plain import of the First Amendment is both a non seguitur and a disregard of the Tenth Amendment.

“[W]hatever may [have been] the form which the several States . . . adopted in making declarations in favor of particular rights,” James Madison, the author of the First Amendment, tells us, “the great object in view [was] to limit and qualify the powers of [the Federal] Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” 1 Annals of Cong. 437. Surely no one should argue that the retention by the States of vestiges of established religions after the enactment of the Establishment and Free Exercise Clauses saps these clauses of their meaning. Yet it was precisely upon such reasoning that this Court, in Roth, exempted the bawdry from the protection of the First Amendment.

When it was enacted, the Bill of Rights applied only to the Federal Government, Barron v. Mayor of Baltimore, 7 Pet. 243, and the Tenth Amendment reserved the residuum of power to the States and the people. That the States, at some later date, may have exercised this reserved power in the form of laws restricting expression in no wise detracts from the express prohibition of the First Amendment. Only when the Fourteenth Amendment was passed did it become even possible to argue that through it the First Amendment became applicable to the States. But that goal was not attained until the ruling of this Court in 1931 that the reach of the Fourteenth Amendment included the First Amendment. See Stromberg v. California, 283 U. S. 359, 368.

At the very beginning, however, the First Amendment applied only to the Federal Government and there is not the slightest evidence that the Framers intended to put the newly created federal regime into the role of ombudsman over literature. Tying censorship to the movement of literature or films in interstate commerce or into foreign commerce would have been an easy way for a government of delegated powers to impair the liberty of expression. It was to bar such suppression that we have the First Amendment. I dare say Jefferson and Madison would be appalled at what the Court espouses today.

The First Amendment was the product of a robust, not a prudish, age. The four decades prior to its enactment “saw the publication, virtually without molestation from any authority, of two classics of pornographic literature.” D. Loth, The Erotic in Literature 108 (1961). In addition to William King’s The Toast, there was John Cleland’s Memoirs of aWoman of Pleasure which has been described as the “most important work of genuine pornography that has been published in English . . . .” L. Markun, Mrs. Grundy 191 (1930). In England, Harris’ List of Covent Garden Ladies, a catalog used by prostitutes to advertise their trade, enjoyed open circulation. N. St. John-Stevas, Obscenity and the Law 25 (1956). Bibliographies of pornographic literature list countless erotic works which were published in this time. See, e. g., A. Craig, Suppressed Books (1963); P. Fraxi, Catena Librorum Tacendorum (1885); W. Gal-lichan, The Poison of Prudery (1929); D. Loth, supra; L. Markun, supra. This was the age when Benjamin Franklin wrote his “Advice to a Young Man on Choosing a Mistress” and “A Letter to the Royal Academy at Brussels.” “When the United States became a nation, none of the fathers of the country were any more concerned than Franklin with the question of pornography. John Quincy Adams had a strongly puritanical bent for a man of his literary interests, and even he wrote of Tom Jones that it was ‘one of the best novels in the language.’ ” Loth, supra, at 120. It was in this milieu that Madison admonished against any “distinction between the freedom and licentiousness of the press.” S. Padover, The Complete Madison 295 (1953). The Anthony Comstocks, the Thomas Bowdlers and Victorian hypocrisy — the predecessors of our present obscenity laws — had yet to come upon the stage.

Julius Goebel, our leading expert on colonial law, does not so much as allude to punishment of obscenity. J. Goebel, Development of Legal Institutions (1946); J. Goebel, Felony and Misdemeanor (1937); J. Goebel & T. Naughton, Law Enforcement in Colonial New York (1944).

Nor is there any basis in the legal history antedating the First Amendment for the creation of an obscenity exception. Memoirs v. Massachusetts, 383 U. S. 413, 424 (Douglas, J., concurring). The first reported case involving obscene conduct was not until 1663. There, the defendant was fined for “shewing himself naked in a balkony, and throwing down bottles (pist in) vi & armis among the people in Convent Garden, contra pacem, and to the scandal of the Government.” Sir Charles Sydlyes Case, 83 Eng. Rep. 1146-1147 (K. B. 1663). Rather than being a fountainhead for a body of law proscribing obscene literature, later courts viewed this case simply as an instance of assault, criminal breach of the peace, or indecent exposure. E. g., Bradlaugh v. Queen, L. R. 3 Q. B. 569, 634 (1878); Rex v. Curl, 93 Eng. Rep. 849, 851 (K. B. 1727) (Fortescue, J., dissenting).

The advent of the printing press spurred censorship in England, but the ribald and the obscene were not, at first, within the scope of that which was officially banned. The censorship of the Star Chamber and the licensing of books under the Tudors and Stuarts was aimed at the blasphemous or heretical, the seditious or treasonous. At that date, the government made no effort to prohibit the dissemination of obscenity. Rather, obscene literature was considered to raise a moral question properly cognizable only by ecclesiastical, and not the common-law, courts. “A crime that shakes religion (a), as profaneness on the stage, &c. is indictable (b); but writing an obscene book, as that intitled, ‘The Fifteen Plagues of a Maidenhead/ is not indictable, but punishable only in the Spiritual Court (c).” Queen v. Read, 88 Eng. Rep. 953 (K. B. 1707). To be sure, Read was ultimately overruled and the crime of obscene libel established. Rex v. Curl, supra. It is noteworthy, however, that the only reported cases of obscene libel involved politically unpopular defendants. Ibid.; Rex v. Wilkes, 98 Eng. Rep. 327 (K. B. 1770).

In any event, what we said in Bridges v. California, 314 U. S. 252, 264-265, would dispose of any argument that earlier restrictions on free expression should be read into the First Amendment:

“[T]o assume that English common law in this field became ours is to deny the generally accepted historical belief that ‘one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press/ . . .
“More specifically, it is to forget the environment in which the First Amendment was ratified. In presenting the proposals which were later embodied in the Bill of Rights, James Madison, the leader in the preparation of the First Amendment, said: ‘Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.’ ”

This Court has nonetheless engrafted an exception upon the clear meaning of words written in the 18th century. But see ibid.; Grosjean v. American Press Co., 297 U. S. 233, 249.

Our efforts to define obscenity have not been productive of meaningful standards. What is “obscene” is highly subjective, varying from judge to judge, from juryman to juryman.

“The fireside banter of Chaucer’s Canterbury Pilgrims was disgusting obscenity to Victorian-type moralists whose co-ed granddaughters shock the Victorian-type moralists of today. Words that are obscene in England have not a hint of impropriety in the United States, and vice versa. The English language is full of innocent words and phrases with obscene ancestry.” I. Brant, The Bill of Rights 490 (1965).

So speaks our leading First Amendment historian; and he went on to say that this Court’s decisions “seemed to multiply standards instead of creating one.” Id., at 491. The reason is not the inability or mediocrity of judges.

“What is the reason for this multiple sclerosis of the judicial faculty? It is due to the fact stated above, that obscenity is a matter of taste and social custom, not of fact.” Id., at 491-492.

Taste and custom are part of it; but, as I have said on other occasions, the neuroses of judges, lawmakers, and of the so-called “experts” who have taken the place of Anthony Comstock, also play a major role.

Finally, it is ironic to me that in this Nation many pages must be written and many hours spent to explain why a person who can read whatever he desires, Stanley v. Georgia, 394 U. S. 557, may not without violating a law carry that literature in his briefcase or bring it home from abroad. Unless there is that ancillary right, one’s Stanley rights could be realized, as has been suggested, only if one wrote or designed a tract in his attic and printed or processed it in his basement, so as to be able to read it in his study. United States v. Thirty-seven Photographs, 402 U. S. 363, 382 (Black, J., dissenting).

Most of the items that come this way denounced as “obscene” are in my view trash. I would find few, if any, that had by my standards any redeeming social value. But what may be trash to me may be prized by others. Moreover, by what right under the Constitution do five of us have to impose our set of values on the literature of the day? There is danger in that course, the danger of bending the popular mind to new norms of conformity. There is, of course, also danger in tolerance, for tolerance often leads to robust or even ribald productions. Yet that is part of the risk of the First Amendment.

Irving Brant summed the matter up:

“Blessed with a form of government that requires universal liberty of thought and expression, blessed with a social and economic system built on that same foundation, the American people have created the danger they fear by denying to themselves the liberties they cherish.” Brant, supra, at 493.

Mb. Justice Brennan,

with whom Mb. Justice Stewart and Mr. Justice Marshall join, dissenting.

We noted probable jurisdiction to consider the constitutionality of 19 U. S. C. § 1305(a), which prohibits all persons 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 east, instrument, or other article which is obscene or immoral.” Pursuant to that provision, customs authorities at Los Angeles seized certain movie films, color slides, photographs, and other materials, which claimant sought to import into the United States. A complaint was filed in the United States. District Court for the Central District of California for forfeiture of these items as obscene. Relying on the decision in United States v. Thirty-seven Photographs, 309 F. Supp. 36 (CD Cal. 1969), which held the statute unconstitutional on its face, the District Court dismissed the complaint. Although we subsequently reversed the decision in United States v. Thirty-seven Photographs, 402 U. S. 363 (1971), the reasoning that led us to uphold the statute is no longer viable, under the view expressed in my dissent today in Paris Adult Theatre I v. Slaton, ante, p. 73. Whatever the extent of the Federal Government’s power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is, in my view, clearly overbroad and unconstitutional on its face. See my dissent in Miller v. California, ante, at 47. I would therefore affirm the judgment of the District Court.

       The United States brought this direct appeal under 28 U. S. C. § 1252. See Clark v. Gabriel, 393 U. S. 256, 258 (1968).

       On the day the complaint was dismissed, claimant filed an affidavit with the District Court stating that none of the seized materials “were imported by me for any commercial purpose but were intended to be used and possessed by me personally.” In conjunction with the Government’s motion to stay the order of dismissal, denied below but granted by Mr. Justice BreNNAN, the Government conceded it had no evidence to contradict claimant’s affidavit and did not “contest the fact that this was a private importation.”

       Act of July 31, 1912, c. 263, § 1, 37 Stat. 241.

       Nor can claimant rely on any other sphere of constitutionally protected privacy, such as that which encompasses the intimate medical problems of family, marriage, and motherhood. See Paris Adult Theatre I v. Slaton, ante, at 65-67, and United States v. Orito, post, at 142-143.

       Mr. Justice Holmes had this kind of situation in mind when he said:
      “All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.” Hudson County Water Co. v. McCarter, 209 U. S. 349, 355 (1908).

       In Caminetti v. United States, 242 U. S. 470 (1917), and Hoke v. United States, 227 U. S. 308 (1913), this Court upheld the “so-called White Slave Traffic Act, which was construed to punish any person engaged in enticing a woman from one State to another for immoral ends, whether for commercial purposes or otherwise, . . . because it was intended to prevent the use of interstate commerce to facilitate prostitution or concubinage, and other forms of immorality.” Brooks v. United States, 267 U. S. 432, 437 (1926) (emphasis added).

       We further note that, while we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes where " 'a serious doubt of constitutionality is raised’ ” and “ ‘a construction of the statute is fairly possible by which the question may be avoided.’ ” United States v. Thirty-seven Photographs, 402 U. S. 363, 369 (1971) (opinion of White, J.), quoting from Crowell v. Benson, 285 U. S. 22, 62 (1932). If and when such a “serious doubt” is raised as to the vagueness of the words “obscene,” “lewd,” “lascivious,” “filthy,” “indecent,” or “immoral” as used to describe regulated material in 19 U. S. C. § 1305 (a) and 18 U. S. C. § 1462, see United States v. Orito, post, at 140 n. 1, we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific “hard core” sexual conduct given as examples in Miller v. California, ante, at 25. See United States v. Thirty-seven Photographs, supra, at 369-374 (opinion of White, J.). Of course, Congress could always define other specific “hard core” conduct.

       Even the copyright power is limited by the freedoms secured by the First Amendment. Lee v. Runge, 404 U. S. 887, 892-893 (Douglas, J., dissenting); Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 U. C. L. A. L. Rev. 1180 (1970).

       Thus, the suggestion that most of the States that had ratified the Constitution punished blasphemy or profanity, is irrelevant to our inquiry here.

       Separating the worthwhile from the worthless has largely been a matter of individual taste because significant governmental sanctions against obscene literature are of relatively recent vintage, not having developed until the Yietorian Age of the mid-19th century. N. St. John-Stevas, Obscenity and the Law 1-85 (1956). See T. Emerson, The System of Freedom of Expression 468-469 (1970); J. Paul & M. Schwartz, Federal Censorship, c. 1 (1961); Report of the Commission on Obscenity and Pornography 349-354 (1970). In this country, the first federal prohibition on obscenity was not until the Tariff Act of 1842, c. 270, § 28, 5 Stat. 566. England, which gave us the infamous Star Chamber and a history of licensing of publishing, did not raise a statutory bar to the importation of obscenity until 1853, Customs Consolidation Act, 16 & 17 Viet., c. 107, and waited until 1857 to enact a statute which banned obscene literature outright. Lord Campbell's Act, 20 & 21 Viet., c. 83.

       The only colonial statute mentioning the word “obscene” was Acts and Laws of the Province of Mass. Bay, c. CV, §8 (1712), in Mass. Bay Colony Charter & Laws 399 (1814). It did so, however, in the context of “composing, writing, printing or publishing . . . any filthy, obscene, or profane song, pamphlet, libel or mock sermon, in imitation or in mimicking of preaching, or any other part of divine worship” and must, therefore, be placed with the other colonial blasphemy laws. E. g., An Act for the Punishment of divers capital and other Felonies, Conn. Acts, Laws, Charter & Articles of Confederation 66, 67 (1784); Act of 1723, c. 16, § 1, Digest of the Laws of Md. 92 (Herty 1799).

       Lord Coke's De Libellis Famosis, 77 Eng. Rep. 250 (1605), for example, was the definitive statement of the common law of libel but made no mention of the misdemeanor of obscene libel.

         Ginsberg v. New York, 390 U. S. 629, 655-656, 661-671 (Douglas, J., dissenting).

        Ginzburg v. United States, 383 U. S. 463, 491 (Douglas, J., dissenting).


author:
      Mr. Chief Justice Burger Mr. Justice Douglas,
      Me. Justice Beennan,

text:
    UNITED STATES v. ORITO
    No. 70-69.
    Argued January 19, 1972 —
    Reargued November 7, 1972 —
    Decided June 21, 1973
    Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and BehNquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 145. BreNNAN, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 147.

      Solicitor General Griswold reargued the cause for the United States. With him on the brief were Acting Assistant Attorney General Petersen, Jerome M. Feit, and Roger A. Pauley. R. Kent Greenawalt argued the cause for the United States on the original argument.

      James M. Shellow reargued the cause for appellee. With him on the brief was James A. Walrath.

        Melvin L. Wulf and Joel M. Gora filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

Appellee Orito was charged in the United States District Court for the Eastern District of Wisconsin with a violation of 18 U. S. C. § 1462 in that he did “knowingly transport and carry in interstate commerce from San Francisco ... to Milwaukee ... by means of a common carrier, that is, Trans-World Airlines and North Central Airlines, copies of [specified] obscene, lewd, lascivious, and filthy materials . . . .” The materials specified included some 83 reels of film, with as many as eight to 10 copies of some of the films. Appellee moved to dismiss the indictment on the ground that the statute violated his First and Ninth Amendment rights. The District Court granted his motion, holding that the statute was unconstitutionally overbroad since it failed to distinguish between “public” and “non-public” transportation of obscene material. The District Court interpreted this Court’s decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Redrup v. New York, 386 U. S. 767 (1967); and Stanley v. Georgia, 394 U. S. 557 (1969), to establish the proposition that “non-public transportation” of obscene material was constitutionally protected.

Although the District Court held the statute void on its face- for overbreadth, it is not clear whether the statute was held to be overbroad because it covered transportation intended solely for the private use of the transporter, or because, regardless of the intended use of the material, the statute extended to “private carriage” or “nonpublic” transportation which in itself involved no risk of exposure to children or unwilling adults. The United States brought this direct appeal under former 18 U. S. C. § 3731 (1964 ed.) now amended, Pub. L. 91-644, § 14 (a), 84 Stat. 1890. See United States v. Spector, 343 U. S. 169, 171 (1952).

The District Court erred in striking down 18 U. S. C. § 1462 and dismissing appellee’s indictment on these “privacy” grounds. The essence of appellee’s contentions is that Stanley has firmly established the right to possess obscene material in the privacy of the home and that this creates a correlative right to receive it, transport it, or distribute it. We have rejected that reasoning. This case was decided by the District Court before our decisions in United States v. Thirty-seven Photographs, 402 U. S. 363 (1971), and United States v. Reidel, 402 U. S. 351 (1971). Those holdings negate the idea that some zone of constitutionally protected privacy follows such material when it is moved outside the home area protected by Stanley. United States v. Thirty-seven Photographs, supra, at 376 (opinion of White, .J.). United States v. Reidel, supra, at 354-356. See United States v. Zacher, 332 F. Supp. 883, 885-886 (ED Wis. 1971). But cf. United States v. Thirty-seven Photographs, supra, at 379 (Stewart, J., concurring).

The Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, child rearing, and education. See Eisenstadt v. Baird, 405 U. S. 438, 453-454 (1972); Loving v. Virginia, 388 U. S. 1, 12 (1967); Griswold v. Connecticut, supra, at 486; Prince v. Massachusetts, 321 U. S. 158, 166 (1944); Skinner v. Oklahoma, 316 U. S. 535, 541 (1942); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925). But viewing obscene films in a commercial theater open to the adult public, see Paris Adult Theatre I v. Slaton, ante, at 65-67, or transporting such films in common carriers in interstate commerce, has no claim to such special consideration. It is hardly necessary to catalog the myriad activities that may be lawfully conducted within the privacy and confines of the home, but may be prohibited in public. The Court has consistently rejected constitutional protection for obscene material outside the home. See United States v. 12 200-ft. Reels of Film, ante, at 126-129; Miller v. California, ante, at 23; United States v. Reidel, supra, at 354-356 (opinion of White, J.); id., at 357-360 (Harlan, J., concurring); Roth v. United States, 354 U. S. 476, 484 — 485 (1957).

Given (a) that obscene material is not protected under the First Amendment, Miller v. California, supra; Roth v. United States, supra, (b) that the Government has a legitimate interest in protecting the public commercial environment by preventing such material from entering the stream of commerce, see Paris Adult Theatre I, ante, at 57-64, and (c) that no constitutionally protected privacy is involved, United States v. Thirty-seven Photographs, supra, at 376 (opinion of White, J.), we cannot say that the Constitution forbids comprehensive federal regulation of interstate transportation of obscene material-merely because such transport may be by private carriage, or because the material is intended for the private use of the transporter. That the transporter has an abstract proprietary power to shield the obscene material from all others and to guard the material with the same privacy as in the home is not controlling. Congress may regulate on the basis of the natural tendency of material in the home being kept private and the contrary tendency once material leaves that area, regardless of a transporter’s professed intent. Congress could reasonably determine such regulation to be necessary to effect permissible federal control of interstate commerce in obscene material, based as that regulation is on a legislatively determined risk of ultimate exposure to juveniles or to the public and the harm that exposure could cause. See Paris Adult Theatre I v. Slaton, ante, at 57-63. See also United States v. Alpers, 338 U. S. 680, 681-685 (1950); Brooks v. United States, 267 U. S. 432, 436-437 (1925); Weber v. Freed, 239 U. S. 325, 329-330 (1915). "The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control. McCray v. United States, 195 U. S. 27; Sonzinsky v. United States, 300 U. S. 506, 513 and cases cited.” United States v. Darby, 312 U. S. 100, 115 (1941). “It is sufficient to reiterate the well-settled principle that Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral or economic nature.” North American Co. v. SEC, 327 U. S. 686, 705 (1946).

As this case came to us on the District Court’s summary dismissal of the indictment, no determination of the obscenity of the material involved has been made. Today, for the first time since Roth v. United States, supra, we have arrived at standards accepted by a majority of this Court for distinguishing obscene material, unprotected by the First Amendment, from protected free speech. See Miller v. California, ante, at 23-25; United States v. 12 200-ft. Reels of Film, ante, at 130 n. 7. The decision of the District Court is therefore vacated and the case is remanded for reconsideration of the sufficiency of the indictment in light of Miller v. California, supra; United States v. 12 200-ft. Reels, supra; and this opinion.

Vacated and remanded.

Mr. Justice Douglas,

dissenting.

We held in Stanley v. Georgia, 394 U. S. 557, that an individual reading or examining “obscene” materials in the privacy of his home is protected against state prosecution by reason of the First Amendment made applicable to the States by reason of the Fourteenth. We said:

“These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as ‘obscene’ is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” Id., at 565.

By that reasoning a person who reads an “obscene” book on an airline or bus or train is protected. So is he who carries an “obscene” book in his pocket during a journey for his intended personal enjoyment. So is he who carries the book in his baggage or has a trucking company move his household effects to a new residence. Yet 18 U. S. C. § 1462 makes such interstate carriage unlawful. Appellee therefore moved to dismiss the indictment on the ground that § 1462 is so broad as to cover “obscene” material designed for personal use.

The District Court granted the motion, holding that § 1462 was overbroad and in violation of the First Amendment.

The conclusion is too obvious for argument, unless we are to overrule Stanley. I would abide by Stanley and affirm the judgment dismissing the indictment.

Me. Justice Beennan,

with whom Me. Justice Stew-aet and Me. Justice Maeshall join, dissenting.

We noted probable jurisdiction to consider the constitutionality of 18 U. S. C. § 1462, which makes it a federal offense to “[bring] into the United States, or any place subject to the jurisdiction thereof, or knowingly [use] any express company or other common carrier, for carriage in interstate or foreign commerce — (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character.” Appellee was charged in a one-count indictment with having knowingly transported in interstate commerce over 80 reels of allegedly obscene motion picture film. Relying primarily on our decision in Stanley v. Georgia, 394 U. S. 557 (1969), the United States District Court for the Eastern District of Wisconsin dismissed the indictment, holding the statute unconstitutional on its face:

“To prevent the pandering of obscene materials or its exposure to children or to unwilling adults, the government has a substantial and valid interest to bar the non-private transportation of such materials. However, the statute which is now before the court does not so delimit the government’s prerogatives; on its face, it forbids the transportation of obscene materials. Thus, it applies to non-public transportation in the absence of a special governmental interest. The statute is thus overbroad, in violation of the first and ninth amendments, and is therefore unconstitutional.” 338 F. Supp. 308, 311 (ED Wis. 1970).

Under the view expressed in my dissent today in Paris Adult Theatre I v. Slaton, ante, p. 73, it is clear that the statute before us cannot stand. Whatever the extent of the Federal Government's power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional on its face. See my dissent in Miller v. California, ante, p. 47. I would therefore affirm the judgment of the District Court.

       Title 18 U. S. C. § 1462 provides in pertinent part:
      “Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—
      “(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; . . .
      “Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.”

       Appellee also moved to dismiss the indictment on the grounds that 18 U. S. C. § 1462 does not require proof of scienter. That issue was not reached by the District Court and is not before us now.

       The District Court stated:
      “By analogy, it follows that with the right to read obscene matters comes the right to transport or to receive such material when done in a fashion that does not pander it or impose it upon unwilling adults or upon minors.
      “I find no meaningful distinction between the private possession which was held to be protected in Stanley and the non-public transportation which the statute at bar proscribes.” 338 F. Supp. 308, 310 (1970).

       “These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Stanley v. Georgia, 394 U. S. 557, 565 (1969). (Emphasis added.)

       The Solicitor General indicates that the tariffs of most, if not all, common carriers include a right of inspection. Resorting to common carriers, like entering a place of public accommodation, does not involve the privacies associated with the home. See United States v. Thirty-seven Photographs, 402 U. S. 363, 376 (1971) (opinion of White, J.); United States v. Reidel, 402 U. S. 351, 359-360 (1971) (Harlan, J., concurring); Poe v. UUman, 367 U. S. 497, 551-552 (1961) (Harlan, J., dissenting); Miller v. United States, 431 F. 2d 655, 657 (CA9 1970); United States v. Melvin, 419 F. 2d 136, 139 (CA4 1969).

       “Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other States from the State of origin. In doing this it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce. ... In the Lottery Case, 188 U. S. 321, it was held that Congress might pass a law punishing the transmission of lottery tickets from one State to another, in order to prevent the carriage of those tickets to be sold in other States and thus demoralize, through a spread of the gambling habit, individuals who were likely to purchase. ... In Hoke v. United States, 227 U. S. 308 and Caminetti v. United States, 242 U. S. 470, the so-called White Slave Traffic Act, which was construed to punish any person engaged in enticing a woman from one State to another for immoral ends, whether for commercial purposes or otherwise, was valid because it was intended to prevent the use of interstate commerce to facilitate prostitution or concubinage, and other forms of immorality. ... In Weber v. Freed, 239 U. S. 325, it was held that Congress had power to prohibit the importation of pictorial representations of prize fights designed for public exhibition, because of the demoralizing effect of such exhibitions in the State of destination.” Brooks v. United, States, 267 U. S. 432, 436-437 (1925).

      “Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—
      “(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character.”