In the 1972 case Heller v. New York, a bookstore owner was charged with criminal obscenity for selling allegedly obscene material. The Supreme Court ruled that a state could constitutionally seize copies of a film and hold them as evidence without prior adversary hearing on whether the film was legally obscene if it had obtained a warrant based upon probable cause to believe that the film is legally obscene. However, they also held that any restraint imposed in advance of an adversarial determination must be designed to preserve the status quo and not limit public availability of materials presumed under law to be protected by First Amendment rights until there has been time for judicial review. This ruling upheld states' ability to regulate obscenity while protecting free speech rights.

In the dissenting opinion for Heller v. New York, Justice Douglas argued that a judicial officer should be present during the seizure of allegedly obscene material to ensure First Amendment rights are not violated. He contended that without such presence, there is no assurance that non-obscene materials won't be seized along with those deemed obscene. Douglas also expressed concern over potential abuses by law enforcement officers who might seize more than necessary or use their power to harass citizens engaged in controversial but lawful activities. Furthermore, he disagreed with the majority's reliance on quantity as a factor in determining whether an item was being commercially exploited and thus subject to seizure; he believed this approach could lead to arbitrary results and lacked constitutional basis.