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Law is a Ass by Bob Ingersoll
Join us each Tuesday as Bob Ingersoll analyzes how the law
is portrayed in comics then explains how it would really work.

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THE LAW IS A ASS for 02/11/2003

"The Law is a Ass" Installment # 183

Originally written as installment # 163 and published in Comics Buyer's Guide issue # 803, April 7, 1989 issue

Today we talk about obscenity again. And when I use the term obscene, I'm not talking about the books or magazines or movies which some tight-sphinctered governmental or regulatory body has decided on its own is obscene. No I'm talking about their desire to impose their moral standards on the rest of the world.

Hey, you don't like it, fine. Don't read it. Don't watch it. Don't buy it. No one's forcing you to. But don't determine that your get to enforce your limited world view on me and try to decide what I get to like or read or watch or buy.

You don't have that right.


Installment # 183

I have--at the risk of sounding improperly flip about what is a very serious subject--some good news and some bad news. Unfortunately, I have more of the bad news, and it is far worse than the good news is good.

States--and presumably the federal government--can constitutionally use their Racketeer Influenced and Corrupt Organizations--or RICO--statutes to prosecute obscenity convictions. So held the United States Supreme Court--six to three--on February 21, 1989 in Fort Wayne Books v. Indiana and its companion case Sappenfield v. Indiana.

I've written about RICO before. I've described how under the federal RICO act--as well as statutes in Arizona, Colorado, Delaware, Florida, Georgia, Idaho, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Utah, and Washington; the fourteen states which have, to date, included obscenity in the statutory laundry list which defines what constitutes racketeering offenses in their RICO statutes--any business or enterprise which is convicted of two obscenity crimes in a ten-year period has engaged in a pattern of racketeering. As a racketeering enterprise, the business can be subjected to RICO felony prosecutions, despite the fact that most states' obscenity statutes are only misdemeanors.

Even worse, however, under RICO's civil forfeiture provisions, a business may not maintain itself by using racketeering proceeds; so any business guilty of a pattern of racketeering activities is subject to a civil suit in which all of its assets--not simply those assets judged obscene--may be forfeited and seized by the government. The government can actually padlock the business, cart away its inventory and fixtures, and sell what it can in order to recoup its expenses in prosecuting the business.

It does not take a Masters of Business Administration to realize that, if a business does not have a location from which it can conduct its business, or does not have fixtures with which it can conduct its business, or does not have inventory to sell as its business; the business will go out of business. In other words, Rico statutes enable governments to shut down businesses convicted of selling obscene materials, and, by selling off the seized inventory and fixtures, make a profit doing it.

The United States Supreme Court had before it two consolidated cases challenging the constitutionality of the Indiana RICO statute, as it applied to obscenity. In Sappenfield, the defendant was indicted on six counts of selling obscene materials. The prosecution also used these same six indictments as the predicate "pattern of racketeering" convictions to bring a prosecution under RICO--under the theory that, if the defendant were convicted of the six charges, RICO charges could have been brought later, so this way Indiana saved a step. Sappenfield, the defendant, made several constitutional challenges to the RICO prosecutions.

In Fort Wayne Books, the prosecutor cited thirty-nine previous criminal convictions for distributing obscenity that Fort Wayne Books had and the fact that Fort Wayne Books was currently selling other alleged obscene materials to seek an immediate civil forfeiture of Fort Wayne's inventory and fixtures. Fort Wayne Books--in an interlocutory appeal taken before any of its inventory was actually seized--raised the same constitutional challenges as Sappenfield. It also argued that it was unconstitutional for the State to seize its present inventory as allegedly obscene without any judicial determination that it was, in fact, obscene.

The Supreme Court, per Justice White, rejected all but one of the challenges. The first challenge was that the definition of obscenity in the RICO statutes was so vague that no one could tell what was and what was not obscene. Therefore, a reasonable man would not know what activity violated the statute and he would not receive adequate notice that his act was illegal, as is required under the Sixth Amendment. The Supreme Court said the argument was merely a request that it reexamine its obscenity test--as is set out in Miller v. California and Pope v. Illinois. The Court declined to do so. The Court ruled that the RICO statutes simply reiterate the existing definition of obscenity as found in Miller and Pope and incorporate that definition into the RICO statute. As the Miller/Pope definition of obscenity is not, itself, unconstitutionally vague, then neither is RICO, which simply repeats the already-existing test.

The defendants argued that the potential RICO penalties were so "draconian" as to put a chilling effect on First Amendment expression. Booksellers and book publishers will practice self-censorship to avoid possible RICO penalties. Moreover, the fear of RICO prosecutions will make said self-censorship so extreme that many borderline, but not-obscene, forms of communications will either not be published or, if published, find no market. The Supreme Court admitted that RICO, in fact all anti-obscenity statutes, have the result of self-censorship on the part of publishers and retailers. However, the Court had ruled in prior cases that the reality of self-censorship did not render anti-obscenity statutes unconstitutional deprivations of free speech rights, and did not change its mind in this case.

The defendants argued that the potential civil penalties of total forfeiture were so extreme that they, by themselves, render RICO obscenity actions unconstitutional. The Supreme Court did not rule on this argument. It noted that no state had actually seized anything under a civil RICO obscenity action, therefore there was no case or controversy raising the issue before the Court. It withheld ruling on the question, until it was properly raised before the Court.

(I haven't gotten my hopes up on this one. Given the Court's action in the Fort Wayne Books and Sappenfield cases; I am not sanguine that the present Supreme Court will rule civil forfeiture of First Amendment protected materials render RICO obscenity actions unconstitutional.)

Sappenfield argued that it was improper for the state to use pending obscenity charges, as opposed to actual convictions which had already been appealed and affirmed, as the predicate offenses to initiate RICO cases. The Court ruled that as long as the burden of proof remained the same--two obscenity convictions within a ten-year period--it did not matter whether the convictions were already adjudicated or pending. The State could bring simultaneous obscenity and RICO prosecutions, instructing the jury that it could not convict on the RICO charges unless it first found the defendant guilty of at least two of the obscenity charges before it. The State is not required to bring "warning shot" prosecutions, before it can indict under RICO.

Justices Stevens, Brennen, and Marshall dissented. They wrote that RICO civil forfeitures of all of a store's merchandise and property were unconstitutional. If the State is permitted to seize all of a store's merchandise, it will seize material which is not obscene and is protected by the First Amendment, which is unconstitutional. The dissenting justices noted that there is a difference in seizing all of the property of a "pizza parlor funded by loan-sharking proceeds," and seizing all the property of a bookstore. Nothing in a pizza parlor is protected by the First Amendment. Any non-obscene book in a bookstore is and cannot be seized without violating the First Amendment. As Justice Stevens wrote, "Many sexually explicit materials are little more than noxious appendages to a sprawling media industry. It is nevertheless true that a host of citizens desire them, that at best remote and indirect injury to third parties flows from them, and that purchasers have a constitutional right to possess them. The First Amendment thus requires the use of 'sensitive tools' to regulate them . . . RICO . . . statutes arm prosecutors . . . with sickles to mow down the entire undesired use. This the First Amendment will not tolerate."

Unfortunately, these Justices were the dissenting minority. The majority of the Court ruled RICO obscenity prosecutions can be brought, increasing the potential criminal penalties for obscenity cases and raising the specter of civil forfeitures. That's the bad news.

The good news--what little there is of it--is that Court agreed with Fort Wayne Books' final argument and ruled that the State cannot use prior obscenity convictions for civil RICO forfeiture cases and cannot seize a bookstore's present inventory of First Amendment protected materials until after there has been an adjudication that the present inventory is obscene.

Seizing one copy of an allegedly obscene book to preserve as evidence is one thing, seizing all copies of the book in order to destroy them or prevent their distribution and sale is an impermissible prior restraint. The general rule that alleged contraband can be seized immediately upon proof of probable cause that it is contraband does not apply, when the alleged contraband is a book or other potentially First Amendment protected form of communication. Until there is a judicial determination that the materials are obscene, thus not protected by the First Amendment, they cannot be seized.

After they have been ruled obscene, however, they can be seized and destroyed. And under RICO procedures, they can be seized and destroyed even while an appeal is pending. It is entirely possible that a defendant could be convicted of distributing obscenity at the trial level, have his merchandise seized and destroyed under RICO, then have his conviction reversed on appeal because the material was not obscene.

Never would a victory be so pyrrhic.

The defendant would not be able to get his merchandise back, because it would already be destroyed. The defendant would probably also be out of business, because all of his merchandise had been seized and without merchandise to sell he would not be able to pay his bills.

Appeals can no longer be relied upon to vindicate First Amendment rights. For if the defendant prevails on appeal but has been forced out of business because all his inventory was seized and destroyed or sold, then the defendant's First Amendment rights basically nonexistent.

There is an old saying, "Wars are won in the trenches." In the legal profession it means, lawyers should win cases at the trial level with not guilty verdicts; they should not rely upon a court of appeals reversal ultimately giving them victory. In the bloody arena of obscenity prosecutions, the saying is now more true that ever.

I've urged this before, I urge it even more strongly now; write your congressmen and senators and tell them to remove obscenity from RICO's definitional list of racketeering activities. Write your state legislatures and tell them to do the same, if your state has a state RICO statute. Then either write your local branch of the American Civil Liberties Union or write the main branch at 125 Broad Street, 18th Floor, New York, NY 10004 and make a tax-deductable contribution to its obscenity defense fund.

Do it.

Do it now!

If we're going to win the war in the trenches, we've got to to be sure that our trench-warfare warriors are as well-equipped as the Enemies'.

Bob Ingersoll

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