(dissenting) :
I dissent.
This seems to me an important and exceedingly close case. Important because it is apparently the first time this court has interpreted recent Supreme Court decisions as allowing seizure of all copies of an allegedly obscene book or magazine before an adversary hearing to determine obscenity. In Overstock Book Co. v. Barry, 436 F.2d 1289, 1296 (1970), we ruled precisely to the contrary. The case is close because there are persuasive practical arguments for deciding either way and the teaching of the precedents is not clear. But on balance I would affirm Judge Weinfeld’s order.
As a matter of common sense, there is a good deal of merit in the majority’s position that the prior restraint here was so “brief and insubstantial” that it did not “violate the first amendment.” Yet, practicality alone also commends the holding of the district court that in this case there must be “an adversary hearing to determine obscenity prior to restraint or seizure, not a post-seizure hearing.” This furnishes a clear, easily applied test of constitutional validity whereas the majority’s position will necessarily involve the courts in intractable problems of drawing lines in cases involving attempts to suppress books and magazines.
Similarly, the prior cases leave one in doubt as to the required course here. The majority relies heavily on the standards for administrative film licensing first enunciated in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed. 2d 649 (1965), and later applied primarily in film censorship cases. E.g., Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968) (per curiam).1 These criteria allowed a brief restraint prior to a final judicial determination, but this was explained by the Court as stemming from the unique nature of movie exhibitions — involving advanced scheduling of film runs at specific theatres — and the application of the Freedman rules was explicitly limited to films. 380 U.S. at 60-61, 85 S.Ct. 734, 13 L.Ed.2d 649. See also Times Film *759Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961). Recently, however, the Court has applied the Freedman standards in two obscenity cases not involving films, Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1970); United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), and the majority cites these decisions to support its rejection of the preseizure hearing requirement. On the other hand, the Supreme Court held in A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) — a decision never explicitly overruled — that the failure of the state to provide an adversary judicial hearing on the issue of obscenity prior to the seizure by police of all copies of a number of books in the hands of a distributor rendered the procedure “constitutionally deficient.” Id. at 211, 91 S.Ct. 1400. In that case, the statute authorized such seizures with a subsequent hearing to determine whether the seized material was obscene and could be destroyed. The seizures were made pursuant to a very specific warrant issued after a judge had inspected copies of some of the publications proposed to be confiscated, see Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and the hearing was held ten days later. Nevertheless, the Court invalidated the procedure because “the warrant . . . authorized the sheriff to seize all copies of the specified titles, and . . . P-K was not afforded a hearing on the question of . . . obscenity ... before the warrant issued . . . . ” 378 U.S. at 210, 84 S.Ct. at 1725.
The silent premise of the majority opinion is that Blount v. Rizzi, supra, and United States v. Thirty-Seven Photographs, supra, make A Quantity of Books no longer applicable. I do not believe that these two decisions — which involved federal statutory schemes for administrative review of allegedly obscene materials sold or advertised through the mails2 or passing through United States Customs‘respectively — were intended to overrule A Quantity of Books. In neither case is there any intimation that Freedman is being extended to contexts other than the type of administrative review statutes in question.3 Indeed, not one of the several opinons in either case even mentions A Quantity of Books or the problem of police seizures involved there— and here. This conclusion as to the limited scope of these recent decisions is further reinforced by the fact that the author of the Court’s opinion in A Quantity of Books wrote the majority opinion in Blount, concurred in Thirty-Seven Photographs, and yet reiterated, less than three months before the latter decision, the continuing validity of the rule of A Quantity of Books. See Dyson v. Stein, 401 U.S. 200, 204, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971) (Brennan, J., concurring).
Therefore, we are left with uncertain guidance in applying precedents to a new fact pattern, not an unusual situation for a court to be in. I will not pretend to be outraged by the restraint in this case of only “a few hours,” after which the magazines were found to be obscene. But I do think that the procedure approved here poses dangers to the preferred interests protected by the first amendment. The majority allows the *760seizure prior to an adversary judicial hearing of all copies of an allegedly obscene magazine, completely preventing its distribution to the public. This is far different from the seizure of just a few copies for use as evidence, a procedure we have already approved. Overstock Book Co. v. Barry, supra. While the restraint prior to the hearing was brief here, it is likely, especially in the absence of specific statutory limitations, that a case-by-case approach will either tolerate the gradual relaxation of constitutional requirements or force this court to make repeated, arbitrary distinctions. How soon must the adversary hearing be held ? The prior restraint here was only “a few hours on the morning of January 7th,” according to the majority. Would prior restraint of a book or magazine for an entire day be too much? Or a few days? Or a few weeks? How soon must the adversary hearing be concluded? Is there any significant difference between magazines in a warehouse and a supply of books in a retailer’s storage area? Although it is asserted that such a flexible approach is necessary to successful enforcement of anti-obscenity laws, we should remember that our primary concern is not with the danger that some obscene publications might escape the prosecutor’s net; it is, rather, with the protection of the public’s right to read nonobscene books or magazines that some official may mistakenly regard as obscene. The furnishing of an effective “safeguard against the suppression of nonobscene books” is what the constitutional issue is all about. See A Quantity of Books v. Kansas, supra, 378 U.S. at 208, 84 S.Ct. 1723, 12 L.Ed.2d 809. Drawing the hard-and-fast line of a prior adversary hearing before total seizure of books and magazines — as was done in A Quantity of Books, supra — has the virtue of accomplishing just that.4
Blount and Thirty-Seven Photographs may perhaps presage a dilution of the limitations previously imposed on police seizures of allegedly obscene books and magazines. But the Supreme Court has not extended Freedman that far, and I would rely on A Quantity of Books and on our own prior decision in Overstock Book Co., supra, 436 F.2d at 1296. See also American News Co. v. Ladas, 454 F.2d 1237 (6th Cir.1972).
For these reasons, I would affirm Judge Weinfeld’s order.
. ' The Court in Freedmam held that to survive judicial scrutiny, any system of film licensing must provide for a prompt decision and speedy judicial review in ease the license is denied, must require the licensing agency itself to seek the review and must place the burden of proof of obscenity on the censor. 380 U.S. at 58-59, 85 S.Ct. 734, 13 L.Ed.2d 649.
. The provisions in question, now 39 TJ.S.C. §§ 3006-07, authorize the Post Office to return all mail and payments addressed to an individual who is found to be selling obscene material or sending advertising for it through the mails.
. The xrlurality opinion in Thirty-Seven Photographs rested heavily on the unique and historic power of United States Customs officers:
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.
402 U.S. at 376, 91 S.Ct. at 1408. See also id. at 378, 91 S.Ct. 1400, 28 L.Ed. 2d 822 (Stewart, J., concurring).
. It is true that the Supreme Court in United States v. Thirty-Seven Photographs, supra, engaged in a form of line-drawing when it read into the law a set of time limits for the start and conclusion of hearings following the impounding of allegedly obscene material by United States Customs. 402 U.S. at 373-374, 91 S.Ct. 1400, 28 L.Ed.2d 822. However, this was done to save an existing federal statute incorporating a long-recognized power of national sovereignty. It does not follow that this court should, in the absence of a carefully drawn state statute, invite future litigation on a ease-by-case basis to explore further the possible extent of police power to seize and hold material that may ultimately be found to be protected expression.