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.

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.

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.

[3] 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.

Customs agents at Los Angeles International Airport searched his luggage and found 37 photographs depicting naked heterosexual couples having sexual intercourse in different positions.

The seizure had violated his First Amendment rights since the pictures were meant to be viewed by adults only within the privacy of their own homes, which the Supreme Court had recently held was protected activity in Stanley.

Stanley Barnes from the Ninth Circuit Court of Appeals was seated along with Central District of California judges Jesse William Curtis Jr. and Warren John Ferguson.

While quoting from William Brennan's concurrence in Lamont v. Postmaster General to demonstrate his agreement that it was a fundamental right,[11] he nevertheless found it inapplicable to the case, since ruling otherwise would have an economically disparate impact: "The First Amendment cannot be construed to permit those who have funds for foreign travel to bring back constitutionally protected literature while prohibiting its access by the less affluent.

Freedman had held that any statutory process by which obscene material was seized and potentially suppressed must explicitly require a hearing within a brief period of the time of seizure.

While Luros admitted that the government had moved to hold a forfeiture hearing within a reasonable time period of the photographs' seizure, it still took 76 days until the court had heard the case.

Having reached that conclusion, he declined to consider Luros's other arguments and ordered the photographs returned following a 30-day stay to allow the government time to appeal if it wished to do so.

The Court heard oral arguments almost a year later, on the same day as United States v. Reidel, another case directly appealed from the Central District of California challenging, under Stanley as well, the prohibitions against mailing obscene material to willing adult recipients.

Hugo Black and William O. Douglas, both of whom had long made it clear they believed the government had no business forbidding obscenity, wrote an extensive dissent critical of all elements of White's opinion.

Only a holding that Stanley covered the importation of obscene material for private use would force a reconsideration of the constitutionality of the entire statute, due to the severability clause, and Harlan thought that should be avoided since it was not necessary to decide that question in order to resolve the case.

"The terms of the statute appear to apply to an American tourist who, after exercising his constitutionally protected liberty to travel abroad, returns home with a single book in his luggage, with no intention of selling it or otherwise using it, except to read it," he wrote.

Since it had instead affirmed it in both of the cases that it decided that day, he warned that: ... 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.

[note 1][20] Perhaps, he speculated, the majority had assumed, without actually saying so, that the import ban was necessary to prevent the distribution of obscene material through domestic commercial channels.

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 majority should have simply found the statute unconstitutional for lacking one and affirmed the district court on that basis, leaving the actual revision of Section 1305 to Congress.

[23] Since he could not find the time limit justified by either previous jurisprudence or the legislative history of the statute, Justice Black suspected the majority was deriving them from the First Amendment itself.

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.

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."

This time, the claimant insisted the subject materials were intended for purely private and personal use, and they asserted, as Luros had, that Stanley permitted such importation.

A similar panel relied on its predecessor's opinion in Thirty-seven Photographs and likewise held Section 1305 unconstitutional, not just for the procedural shortcomings but as a violation of the First Amendment on its face.

The decisions in all five cases were announced on the same day at the end of the term, since one was Miller v. California, in which a majority had agreed on a new standard of obscenity, superseding Roth.

"[I]t 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", he wrote, "may not without violating a law carry that literature in his briefcase or bring it home from abroad.

Within six months, the Tenth Circuit heard and decided Sarkisian v. United States,[note 4] in which the Customs Service had refused to return a parcel containing jewelry purchased in Lebanon, claiming that it had been fraudulently misrepresented as antique.

As in Thirty-seven Photographs, the statute authorizing the seizure set no time limit for formal proceedings to begin, and the court was unconvinced by government attempts to distinguish the case for lack of an obscenity allegation.

[30] Several years later, Judge Walter Herbert Rice of the Southern District of Ohio described Thirty-seven Photographs as "the earliest significant treatment of delay in a forfeiture context.

[note 5] In New York v. Ferber, its landmark 1982 holding that child pornography was outside First Amendment protection, the Court clarified that under Thirty-seven Photographs, if such a construction was impossible but the statute was severable, only the unconstitutional portions should be invalidated.