Opposition Brief — Long v. Florida

Suprems Court, U.S,

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No. 90-1486

Getic OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 1990

TODD EDWARD LONG, PHYLLIS ANN MAXWELL,

CATHY IRENE ARMSTRONG, EDWARD DEE

ARMSTRONG, JOHN E. SHEA, AND CMH

ENTERPRISES, INC.

Petitioners,

Vs.

STATE OF FLORIDA,

Respondent.

RESPONSE IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE SUPREME

COURT OF FLORIDA

\

ROBERT A. BUTTERWORTH

Attorney General

PEGGY A. QUINCE

Assistant Attorney General

Counsel of Record

DEPARTMENT OF LEGAL AFFAIRS

2002 North Lois Avenue

Westwood Center, Suite 700

Tampa, Florida 33607

(813) 873-4739

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED

1. Does the application of the Florida Racketeering In-

fluence and Corrupt Organization (RICO) Act to obscenity

prosecutions create a chilling effect on the exercise of first

amendment rights?

2. Is the Florida obscenity statute, Section 847.011,

Florida Statutes, drafted in conformity with this Court’s

pronouncement in Miller v. California, 413 U.S. 15 (1973),

unconstitutionally vague?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........---++:: i

ve Foe gee 5) |.) Sr aie a ae ii

TABLE OF AUTHORITIES ........--++e5: iii

OPINIONS BELOW .. 0. ccc crc cer eens 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

0 eee ae ee ee ee 2

STATEMENT OF THE CASE ........--+-+--: 4

REASONS FOR DENYING THE WRIT......... 6

The Florida Supreme Court did not address

any question of federal constitutional iaw .... . 6

The opinion from the Florida Supreme Court

on the application of the RICO statutes to

obscenity prosecutions does not conflict with

any decision from another state court of last

resort or any United States court of appeals

and is in conformity with the decisions from

this Court onthe sameissue ............ 6

The decision of the Florida Supreme Court

does not decide any important federal

question which this Court has not settled and

the Miller standard has been reaffirmed by

this Court in Pope v. Illinois, 481 U.S. 497

SE A 6 6 kw 6 68 ee ae 8 eS 10

CRED gc ec ewe Cee we ewes 12

a ceaeeteeieieenmnaininaane |

TABLE OF AUTHORITIES

Page

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46

ere 7, 8,9, 10

Hamling v. United States, 18 U.S. 87(1974) _.... 10

Herb v. Pitcairn, 324 U.S. 117(1945) .......... 6

J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482

(9th Cir. 1983), reud sub nom., Brockett v.

Spokane Arcades, Inc., 472 U.S. 491(1985) .... 8

Michigan v. Long, 463 U.S. 1032(1983) .......... 6

Miller v. California, 413 U.S. 15(1973) ...... passim

Osborne v. Ohio, 495 U.S. , 110 S.Ct. 1691,

109 L.Ed.2d 98(1990) ............... 10

Polykoff v. Collins, 816 F.2d 1326 (9th Cir. 1987) .... 8

Pope v. Illinois, 481 U.S. 497 (1987) ........ passim

Smith v. California, 361 U.S. 147(1959) ........ 7

Stall v. State, 570 So.2d 257 (Fla. 1990) ...... 1,5,6

State v. Long, 544 So.2d 219 (Fla. 2d DCA 1989) . . . 1,5

OTHER AUTHORITIES:

United States Constitution

ES ee ee a 2

Tate reo Ah ery ed 2

Florida Constitution

ee 2,6

ill

Florida Statutes

0 a ae ee ee passim

BOCTGIMIMa) . 0. eee ete ess 2

a ence 8.8. 8°K 64 ©. 0-6 boa ES 3

area ea ee ee 4

era eae 2 ae ee ee 2 eee ee 4

Rule 3.701, FlaR.Crim.P ......---5 +e ees 7

iv

OPINIONS BELOW

The opinion of the Florida Supreme Court in this cause is

reported as Stall v. State, 570 So.2d 257 (Fla. 1990), and the

opinion of the Second District Court of Appeal reversing the

ruling of the trial court is cited as State v. Long, 544 So.2d

219 (Fla. 2d DCA 1989). Both opinions have been reproduced

in their entirety as Appendix A and B, respectively, in the

Petition for Writ of Certiorari.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution

Amendment 1. Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the press;

or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

Amendment 14. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

Florida Constitution

Article I, Section 23. Every natural person has the right

to be let alone and free from governmental intrusion into his

private life except as otherwise provided herein. This section

shall not be construed to limit the public’s right of access to

public records and meetings as provided by law.

Florida Statutes

Section 847.011(1)(a). Any person who knowingingly sells,

lends, gives away, distributes, transmits, shows, or trans-

mutes, or offers to sell, lend, give away, distribute, transmit,

show or transmute, or has in his possession, custody, or

control with intent to sell, lend, give away, distribute,

transmit, show transmute, or advertise in any manner, any

obscene book, magazine, periodical, pamphlet, newspaper,

comic book, story paper, written or printed story or article,

writing, paper, card, picture, drawing, photograph, motion-

picture film, figure, image, phonograph record, or wire or

tape or other recording, or any written, printed, or recorded

matter of any such character which may or may not require

mechanical or other means to be transmuted into auditory,

visual, or sensory representations of such character, or any

article or instrument for obscene use, or purporting to be for

obscene use or purpose; or who knowingly designs, copies,

draws, photographs, poses for, writes, prints, publishes, or

in any manner whatsoever manufactures or prepares any

such material matter, article, or thing of any such character;

or who knowingly writes, prints, publishes, or utters, or

causes to be written, printed, published, or uttered, any

advertisement or notice of any kind, giving information,

directly or indirectly, stating, or purporting to state, where,

how, of whom, or by what means any, or what purports to be

any, such material, matter, article, or thing of any such

character can be purchased, obtained, or had; or who in any

manner knowingly hires, employs, uses, or permits any

person knowingly to do or assist in doing any act or thing

mentioned above, is guilty of a misdemeanor of the first

degree, punishable as provided in s. 775.082, or s. 775.083.

A person who, after having been convicted of a violation of

this subsection, thereafter violates any of its provisions, is

guilty of a felony of the third degree, punishable as provided

in s. 775.082, s. 775.083, or s. 775.084.

Section 895.02. (1) Racketeering activity means to commit,

to attempt to commit, to conspire to commit, or to solicit,

coerce, or intimidate another person to commit:

(a) Any crime which is chargeable by indictment or informa-

tion under the following provisions of the Florida Statutes:

28. Section 847.011, s. 847.012, s. 847.013, s. 847.06, or s.

847.07, relating to obscene literature and profanity.

STATEMENT OF THE CASE

The Petitioners, and Tommie Stall, were charged in a

forty-seven (47) count information in the Circuit Court for

the Tenth Judicial Circuit in and for Polk County, Florida,

with a number of offenses involving the hiring of persons to

distribute obscene materials, distribution of an obscene

movie, RICO, distribution of an obscene magazine, distribu-

tion of an obscene article or instrument, possession of

obscene movies with intent to sell or distribute, possession

of obscene instrument with intent to sell or distribute and

possession of obscene magazine with intent to sell or dis-

tribute, in violation of Section 847.011, Florida Statutes, and

Sections 895.03 and 895.04, Florida Statutes. A number of

pretrial motions were filed including a motion to determine

the reasonable man standard, a motion to dismiss alleging

Section 847.011 violates Florida’s right to privacy, a motion

to dismiss alleging the statute does not conform to the

requirements of Miller v. California,-413 U.S. 15 (1973) and

Pope v. Illinois, 481 U.S. 497 (1987), a motion to dismiss for

vagueness, a motion to dismiss alleging the obscenity

statute provided for excessive punishment, insufficient

scienter and had a chilling effect on first amendment rights.

Memoranda in opposition tc these motions were filed by

the State. A hearing was held before the Honorable E.

Randolph Bentley was held on December 1-2, 1987. On

January 8, 1988, Judge Bentley entered an order denying

the motion to strike the jury list, denied the motion to

dismiss for inability to seat a fair jury, modified the defini-

tion of a reasonable man, granted the motion to dismiss

finding a right to privacy is violated when applied to

material offered for sale or rent and intended for home use,

denied the motion to dismiss for excessive punishment and

insufficient scienter and granted the motion as having a

chilling effect on first amendment rights. He also held the

RICO statute as applied to obscenity to be violative of the

U.S. Constitution, declared the obscenity statute to be viola-

tive of due process because of vagueness, and found the

obscenity statute did not conform to the requiremenis of

Miller and Pope.

The State of Florida timely filed a notice of appeal, and

briefed all of the points the trial judge had decided adversely

to the State. The Second District Court of Appeal on March

31, 1989 filed an opinion, cited as State v. Long, 544 So.2d

219(Fla. 2d DCA 1989), reversing the trial court and indicat-

ing the obscenity statute met constitutional muster. The

district court specifically held that the statute did not violate

the right to privacy under the Florida Constitution.

Further review was sought and had in the Florida

Supreme Court. And that court found the Florida obscenity

statute constitutional as it did not violate the Florida right

to privacy. Stall v. State, 570 So.2d 257 (Fla. 1990). A Petition

for Writ of Certiorari to this Court followed.

‘

REASONS FOR DENYING THE WRIT

The Florida Supreme Court did not address any

question of federal constitutional law.

Certiorari review should be denied in this case since the

Florida Supreme Court, the state court of last resort, did not

address any federal constitutional issue. After citing to this

Court’s opinions which held that obscenity was not entitled

to the full protection of the First Amendment, the Florida

Supreme Court actually addressed and decided only the

issue of whether or not the Florida Right to Privacy Amend-

ment, Art. I, § 23, Fla. Const., protects the sellers and

distributors of obscene material.

In holding that there is no right to publicly sell obscene

materials, the court relied on its interpretation of a state

constitutional provision. Thus it is clear that Stall v. State,

supra, was decided on an independent and adequate state

ground, and it is, therefore, not reviewable by this Court.

See, Herb v. Pitcairn, 324 U.S. 117 (1945) and Michigan v.

Long, 463 U.S. 1032 (1983).

The opinion from the Florida Supreme Court on

the application of the RICO statutes to obscenity

prosecutions does not conflict with any decision

from another state court of last resort or any

United States court of appeals and is in conformity

with the decisions from this Court on the same

issue

Both the Florida Supreme Court and Second District

Court of Appeal, in addressing the petitioners’ claim that the

use of the Florida Racketeering Influence and Corrupt Or-

ganization (RICO) Act on obscenity prosecutions had a chill-

ing effect on the exercise of First Amendment rights, looked

to the decisional law from this Court in finding that the

application of this statute was constitutionally permitted.

No other pronouncement beyond acknowledgment of this

Court’s cases was made by the Florida Supreme Court. Both

courts cited to this Court’s opinion of Fort Wayne Books, Inc.

v. Indiana, 489 U.S. 46 (1989), as authority that obscenity

offenses may be used as predicate acts under RICO prosecu-

tions. In Fort Wayne Books the defendants argued, as do the

petitioners sub judice, that the harsher penalties under

RICO placed an unconstitutional chilling effect on the exer-

cise of First Amendment rights. However, this Court held

that neither the possibility of harsher penalties nor the

possibility of self-censorship results in a violation of the

First Amendment. See also, Smith v. California, 361 U.S.

147 (1959).

There is no dispute that under Florida Law penalties for

violating the RICO statute are more severe than the penal-

ties outlined in the obscenity statute. But, petitioners’ argu-

ment that the potential 30 year sentence under RICO is

imposed for as few as two obscenity violations overlooks

other important aspects of the RICO statute. That statute

is a tool used to convict and punish those persons who have

demonstrated a continuing course of criminal conduct, i.e.,

an enterprise. It is not enough under a RICO prosecution

that one engage in any of the predicate offenses, including

obscenity violations only once. The State, via the State

Attorney, must not only prove the defendant engaged in the

prohibited activities at least twice, the State must also plead

and prove “a pattern of racketeering activity” and “an

enterprise.”

Once the State Attorney has proven all of the elements of

a RICO violation, pattern of racketeering, enterprise, and

at least two predicate offenses, the Florida Sentencing

Guidelines would then come into play. Rule 3.701, Florida

Rules of Criminal Procedure, by its own terms, is applicable

to a RICO conviction since the guidelines are to be used in

all noncapital cases, and a prosecution under RICO is non-

capital. In this case, the guidelines would result in sentences

much less severe, including any nonstate prison sanction,

than the “draconian” sanctions these petitioners argue.

The petitioners’ extra-record reference to a newspaper

article concerning the number of x-rated videos available on

the market, if true, demonstrates in part the error of their

chilling effect argument. It would appear from such statis-

tics that many are not deterred despite the possibility of

severe punishments.

Petitioners attempt to argue conflict pursuant to Supreme

Court Rule 10.1(b) with a decision from a United States

court of appeals is not persuasive. Rather than supporting

conflict, the ninth circuit’s opinion of Polykoff v. Collins, 816

F.2d 1326 (9th Cir. 1987), while decided prior to Fort Wayne

Books, is in conformity with that case. The ninth circuit in

Polykoff actually held that the huge potential felony fines of

$150,000.00 and $1,000,000.00 did not have an unconstitu-

tional chilling effect on free speech. That court went on to

say that any chilling effect was attributable to the state’s

legitimate deterrent goals.

Likewise, J-R Distributors, Inc. v. Eikenberry, 725 F.2d

482 (9th Cir. 1983), revud sub nom., Brockett v. Spokane

Arcades, Inc., 472 U.S. 491 (1985), does not aid petitioners’

conflict argument. First, the case did not involve an inter-

pretation of a RICO statute as applied to obscenity. Second-

ly, the state statute involved concerned fines which were

based in part on constitutionally protected activity.

Neither of the cases relied on by the petitioners can be

used to demonstrate conflict arsong the courts. Neither J-R

Distributors, Inc. nor Polykoff involved a RICO prosecution.

And even if it could be argued that the same principles are

applicable because the court discussed the chilling effect of

penalties on the exercise of First Amendment rights, both of

the cases were decided before this Court rendered its opinion

in the Fort Wayne Books case.

The argument that this Court should look at this case and

re-examine Miller v. California, 413 U.S. 15 (1973), because

of the changing moral or secial ¢limate, has been repeatedly

argued and rejected and should be rejected in this case. This

Court has recognized by the very standards outlined in

Miller that what appeals to the “prurient interest” or is

“patently offensive” cannot be precisely defined for all states

and/or communities. Thus, the first prong of the Miller

standard is “whether the average person, applying contem-

porary community standards would find that the work

taken as a whole, appeals to the prurient interest.” Such a

standard takes into consideration the “social changes”

argument.

Respondent cannot agree that obscene videos have be-

come a staple of the American home video marketplace.

References to magazine and journal articles do not con-

stitute proof of the matters contained therein. Contrary to

the assertions being made by petitioners, the evidence sug-

gests that obscenity is not being embraced by society. The

strengthening of obscenity statutes and their vigorous en-

forcement points up the fact that society is concerned about

the continued distribution of obscene materials in their

communities.

Petitioners have failed to properly invoke this Court’s

jurisdiction by presenting an issue worthy of certiorari

review.

The decision of the Florida Supreme Court does not

decide any important federal question which this

Court has not settled and the Miller standard has

been reaffirmed by this Court in Pope v. Illinois,

481 U.S. 497 (1987)

Despite petitioners’ grudging acknowledgment, Miller v.

California, 413 U.S. 15 (1973), continues to be the standard

as articulated by this Court for prosecution of obscenity

cases. All of the recent cases from this Court have upheld

the states’ right to prosecute obscenity law violations and in

each instance have reaffirmed Miller. See, e.g., Hamling v.

United States, 418 U.S. 87 (1974); Pope v. Illinois, 481 U.S.

497 (1987); Fort Wayne Books, Inc. v. Indiana, supra, and

Osborne v. Ohio, 495 U.S. ,110S.Ct. 1691, 109 L.Ed.2d

98 (1990).

These petitioners have not presented any legitimate bases

for a re-examination of the Miller standard. The mere fact

that some state courts have found independent state ground

reasons for invalidating their obscenity laws does not sup-

port a claim that Miller has fallen into disrepute. The

decisions by the Hawaii court and the Oregon court were not

grounded on the opinions from this Court. Rather, those

courts chose to interpret their own constitutions in a man-

ner which would allow for invalidating the statutes.

These petitioners also argue the Miller standard does not

require meaningful scienter. While they concede there is a

requirement of knowledge of the contents, character and

nature of the materials, they want more without any cause

for complaint. The more knowlege desired by the petitioners

‘is that the s.ate prove knowledge of the material’s status as

obscenity. But isn’t the material’s status a question to be

decided by the jury? If the State could automatically make

that decision instead of the jury, petitioners would be before

this Court with a different set of arguments.

10

The argument that jurists differ on the meaning of

obscenity has been espoused by various parties since Miller.

And this Court in Miller said:

The mere fact juries may reach different con-

clusions as to the same material, does not mean

that constitutional rights are abridged. As this

Court observed in Roth v. United States, 354 US,

at 492 n 30, 1 L Ed 2d 1498 “it is common ex-

perience that different juries may reach different

results under any criminal statute. That is one of

the consequences we accept under our jury sys-

tem”.

37 L.Ed.2d at 432.

The opinions expressed in dissents are just that, differen-

ces of opinion. These differences of opinions appear with

frequency in our system of !aws. However, to elevate them

to the status of being the law defeats the whole purpose of

our system. The majorities in Miller and Pope recognize the

problems inherent in defining obscenity; the difficulty of the

task does not negate the effectiveness of the standard which

has proven workable. Both Congress and the Florida legis-

lature have addressed an ill which cuts to the fabric of our

society. These laws have been drawn with enough flexibility

to protect individual rights while also protecting the society

as a whole.

The fact that petitioners do not agree with Miller and its

progeny is not a basis for certiorari review.

11

CONCLUSION

For the foregoing reasons, Respondent submits the Peti-

tion for Writ of Certiorari to the Florida Supreme Court

should be denied.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

PEGGY A. QUINCE

Assistant Attorney General

Counsel of Record

DEPARTMENT OF LEGAL AFFAIRS

2002 North Lois Avenue

Westwood Center, Suite 700

Tampa, Florida 33607

(813) 873-4739

COUNSEL FOR RESPONDENT

12