# Petition for Writ of Certiorari — Fort Wayne Books, Inc. v. Indiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 46

## Text

In The
Supreme Court of the United States

October Term, 1987

Ly.
Vv

FORT WAYNE BOOKS, INC.,
Petitioner
vs.
STATE OF INDIANA, et al.,
Respondents.

if.
VV

PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF THE STATE OF INDIANA

sy
Vv

Joun H. Weston*

Davin M. Brown

G. RanpaLu Garrou
Brown, Weston & Sarno

433 N. Camden Dr., Suite 900
Beverly Hills, CA 90210
(213) 550-7460

Attorneys for Petitioner

*Counsel of Record
Ler J. Kier

8252 E. Lansing Rd.
Suite 101
Durand, MI 48429

Of Counsel

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
or call collect (402) 342-2831

QUESTIONS PRESENTED

1. Is Indiana’s civil RICO statute an impermissible
prior restraint of the type described in Near v. Minnesota,
283 U.S. 697 (1931), to the extent that that statute was
construed to permit the padlocking of numerous book-
stores and the mass seizure of not only their entire inven-
tories, but also all their physical equipment including book
racks, film projectors, cash registers, ete., all upon an ex
parte probable cause determination that the stores in ques-
tion had sold or exhibited two or more allegedly obscene
items?

2. Are the First Amendment procedural safeguards
of Freedman v. Maryland, 380 U.S. 51 (1965), and Vance
v. Universal Amusement Co., 445 U.S. 308 (1980), violated
by a state law which permits bookstores to be closed by
interim padlocking and seizure orders of indefinite dura-
tion where the law fails to guarantee that a final deter-
mination of obscenity will necessarily occur within a spe-
cified brief period after the seizure? Does the Indiana
Supreme Court’s conclusion that the statute requires such
a hearing to be held within a ‘‘reasonable’’ time satisfy
Freedman’s requirement of a ‘‘specified’’ brief period
where no guidelines are given for determining the dura-
tion of this ‘‘reasonable’’ period and the court approved
as ‘‘reasonable’’ an ex parte seizure which has remained
in effect for over a year without any final determination
of obscenity?

3. Are the First Amendment principles articulated in
Marcus v. Search Warrant, 367 U.S. 717 (1961); A Quantity
of Books v. Kansas, 378 U.S. 205 (1964) ; Carroll v. Presi-

i)... ee

li

dent and Com’rs of Princess Anne, 393 U.S. 175 (1968) ;
Heller v. New York, 413 U.S. 483 (1973) and Lo-Ji Sales,
Inc. v. New York, 442 U.S. 319 (1979), violated by a state
law which was construed and applied to permit mass seiz-
ures of the entire inventories of numerous bookstores
based exclusively upon an ex parte showing that two or
more of the items sold in the stores are probably obscene?
Do these cases continue to require that notice and some
form of adversary hearing must occur prior to any such
mass seizures?

4. May the entire inventory and contents of a book-
store be seized where the issue of obscenity need only be
proven by a ‘‘probable cause’’ standard of proof? Does
this most minimal evidentiary requirement conflict with the
principles this Court articulated in California ex rel. Coop-
er v. Mitchell Bros., 454 U.S. 90 (1981)?

5. Does Indiana’s RICO statute violate the First
Amendment principles articulated in National Socialist
Party of America v. Village of Skokie, 432 U.S. 43 (1977),
by virtue of the fact that it provides no guarantee of
prompt appellate review of either interim or permanent
seizure orders and, in one instance, three stores remained
closed by virtue of an interim order for over a one-year
period before there was even an initial appellate court rul-
ing on a promptly filed emergency stay application?

6. In upholding the sanctions available under the
state’s civil RICO laws as applied to persons alleged to
have violated only the state’s obscenity laws, did the In-
diana Supreme Court ignore this court’s holdings in Thom.
as v. Collins, 323 U.S 516 (1945) and Schad v. Burrough of
Mt. Ephraim, 452 U.S. 61 (1981), that the standard of re-

ili

view is determined by the nature of the right assertedly
threatened or violated rather than by the power being
exercised by the state?

7. Do Indiana’s civil RiCO statutes’ post-trial reme-
dies, as sanctioned by the Indiana Supreme Court, violate
the First Amendment guarantees against prior restraint
articulated in Near v. Minnesota, supra?

iv
LIST OF PARTIES*

The following is a list of all parties of record in the
Indiana Supreme Court in addition to those appearing in
the caption of the present petition:

CINEMA BLUE OF FORT WAYNE, INC.,
EROTIC HOUSE BOOKSTORE, INC., 4447 COR-
PORATION, WORLD VIDEO SYSTEMS, ISSI
THEATER CORPORATION, PLAZA ENTERTAIN-
MENT CENTER and BURTON GORELICK ap-
peared as appellants in the Indiana Supreme Court.

STEPHEN M. SIMS, Prosecuting Attorney for
the 38th Judicial Circuit, and STEPHEN GOLD-
SMITH, Prosecuting Attorney for the 19th Judicial
Circuit, appeared as appellees in the Indiana Supreme
Court.

As indicated under separate cover, petitioner FORT
WAYNE BOOKS, INC., believes that 4447 CORPORA-
TION, WORLD VIDEO SYSTEMS, ISSI THEATER
CORPORATION, CINEMA BLUE OF FORT WAYNE,
INC., and EROTIC HOUSE BOOKSTORE, INC. have no
interest in the outcome of this petition. Accordingly, pur-
suant to Supreme Court Rule 19.6, petitioner believes the
respondents before this Court to be:

THE STATE OF INDIANA
STEPHEN M. SIMS

STEPHEN GOLDSMITH

PLAZA ENTERTAINMENT CENTER
BURTON GORELICK

* There are no entities to report or list pursuant to this Court's
Rule 28.1.

=

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED oo ccseeseene i
Ne ns sdsntebnaualan iv
TABLE OF AUTHORITIES oo ccseence Vili
a ieaiebiiemeianias 1
i 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED oo ccaeeseeue 2
STATEMENT OF THE CASE oe 3
REASONS FOR GRANTING THE WRIT 0. )=(12

{ THE INDIANA SUPREME COURT’S DECI-
SION UPHOLDING THE RICO STATUTE’S
LACK OF PROCEDURAL SAFEGUARDS IS
IN CONFLICT WITH THE APPLICABLE DE-
CISIONS OF THIS COURT 12

A. The Statute’s Authorization of Ex Parte Or-
ders Authorizing Mass Seizures and Padlock-
ing of Businesses Engaged in First Amend-
ment Activity Without Notice or a Prior Ad-
versary Hearing Is in Conflict with This
Court’s Opinions in Marcus v. Search War-
rant, 367 U.S. 717 (1961); Quantity of Books
v. Kansas, 378 U.S. 205 (1964); Carroll v.
President and Com’rs of Princess Anne, 393
U.S. 175 (1968) ; Heller v. New York, 413 U.S.
483 (1973); and Lo-Ji Sales, Inc. v. New
York, 442 U.S. 319 (1979) nc ecccesseee 12

B. The Statute’s Authorization of Interim Seiz-
ure and Padlocking Orders of Indefinite Du-
ration Is in Conflict with This Court’s Opin-
ions in Freedman v. Maryland, 380 U.S. 51
(1965) and Vance v. Universal Amusement
Co., 445 U.8. 306 (1980) 13

C.

vl

TABLE OF CONTENTS—Continued

Page

The Statute’s Failure To Guarantee Any
Prompt Appellate Review of Interim or Per-
manent Seizure and Padlocking Orders Is in
Conflict with This Court’s Holding in Na-
tional Socialist Party of America v. Village
Of Sholkete, 432 U.S. 43 (U9T7) nnn cnc ce ccceessssessssncceeeerne

The Statute’s Authorization of Mass Seizures
Based Only Upon a Probable Cause Standard
of Proof of Obscenity Is in Conflict With the
Principles Articulated in California ex rel.
Cooper v. Mitchell Bros., 54 U.S. 90 (1981) .....

IJ THE USE OF RICO LAWS TO RESTRAIN
ALL PRESUMPTIVELY PROTECTED FU-
TURE SPEECH BY THE DEVICE OF PAD-
LOCKING A BUSINESS FOUND TO HAVE
VIOLATED OBSCENITY LAWS IN THE
PAST, PRESENTS AN EXTREMELY IMPOR-
TANT QUESTION OF CONSTITUTIONAL
LAW WHICH REQUIRES RESOLUTION BY
Se SEE peritieteeeenecieninsentnieneenniattinntatcnieatinns "

A. This Court Should Resolve Whether the Doc-

C.

trine of Prior Restraint Established in Near
v. Minnesota, 283 U.S. 697 (1931), Prohibits
the State From Padlocking a Bookstore, Thus
Restraining All Future Speech at Such Store,
Simply Based Upon Two or More Alleged Vio-
lations of State Obseenity Laws —0

Resolution of This Issue by This Court Is Im-
portant Because a Growing Number of States
Are Adopting Similar RICO Laws and There
Is a Conflict Among the States As to Their
Constitutionality 000.

This Issue Should Be Resolved By This Court
Because the Federal RICO Statute Has Been
Recently Amended To Include Obscenity As a

14

16

17

17

20

Vii

TABLE OF CONTENTS—Continued

Page

‘Predicate Offense’? and Federal RICO
Prosecutions Based Solely Upon Obscenity
Offenses Have Now Commenced .................. “

This Court Should Grant Review To Resolve
The Same Question of Prior Restraint Upon
Which It Noted Probable Jurisdiction in the
Case of U.S. Marketing, Inc. v. Idaho, 454
U.S. 1140 (1981) Which Became Moot Prior
to Plenary Review

Immediate Resolution of This Issue Is Im-
portant Because Statutes Such As This One
Pose a Severe Danger to the First Amend-
ment Rights of Millions of Americans and to
a Wide Range of Communicative Media...

22

23

24

Vill

TABLE OF AUTHORITIES

FEeperRAL CasEs:

Arcara v. Cloud Books, — U.S. —, 106 S.Ct. 3172

(1986)

Page

Avon 42nd Street Corp. v. es 352 F. mang

a iiss satsctcsiaiiccenielbhteneenatibigntitane

Bayside Enterprises, Inc. v. Carson, 470 F.Supp.
1140 (M.D.Fla. 1979)

California ex rel. Cooper v. Mitchell Bros., 54 U.S.
90 (1981)

16

Carroll v. President and Com’rs of Princess Anne,
393 U.S. 175 (1968) ...

12

Chulchian v. City of Indianapolis, 477 F.Supp. 128,

(S.D. Ind. 1979), aff’d. 633 F.2d 27 (7th Cir. 1980) 22

Cornflower Entertainment, Inc v. Salt Lake City
Corp., 485 F.Supp. 777 (D.Utah 1980)

22

Entertainment Concepts Inc. Ill v. Maciejewski,

631 F.2d 497 (7th Cir. 1980)

21

Fernandes v. Limmer, 663 F.2d 619 (5th Cir. 1981) 22

Freedman v. Maryland, 380 U.S. 51 (1965) 000.
Gayety Theaters, Inc. v. City of Miami, 719 F.2d

13, 14, 15

1550 (11th Cir. 1983) 21
Genusa v. City of Peoria, 475 F.Supp. 1199 (C.D.

Ill. 1979), aff’d. 619 F.2d 1203 (7th Cir. 1980)... 21
Heller v. New York, 413 U.S. 483 (1973) 000 12, 13
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) 0002
Intern. Soc. for Krishna Consciousness v. ia:

601 F.2d 809 (5th Cir. 1979) ee
Jenkins v. Georgia, 418 U.S. 153 (1974) oo 28

ix

TABLE OF AUTHORITIES—Continued

Page

Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) —.12, 13
Marcus v. Search Warrant, 367 U.S. 717 (1961) 12,13

Marks v. City of Newport, Ky., 344 F.Supp. 675

diy ERE ar ga 22
M.1.C., Ltd. v. Bedford Township, 463 U.S. 1341

(1983) 15
Miller v. California, 413 U.S. 15 (1973) _ 8
Natco Theatres Inc. v. Ratner, 463 F.Supp. 1124

I I catia bcaldinleaniditn ies 22
National Sccialist Party v. Village of Skokie, 432

U.S. 43 (1977) 7, 14, 15
Near v. Minnesota, 283 U.S. 697 (1931) - al Ee Rn 17, 18, 24
New York v. P. J. Video, Inc., — U.S. —, 106 S.Ct.

1610 (1986) 13
Nihiser v. Sendak, 405 F.Supp. 482 (N.D.Ind.

1974), vacated and remanded on other grounds,

423 U.S. 976 (1975), order re-entered August

16, 1976 (unpub.), aff’a. 431 U.S. 961 (1977) 00.2
Oregon Bookmark Corp. v. Schrunk, 321 F.Supp.

639 (D.Oregon 1970) . sciieesneiahclsh hatesiecliaablideliendititninictartios . &

Pollitt v. Connick, 596 F.Supp. 261 (E.D.La, 1984) . 21
Quantity of Books v. Kansas, 378 U.S. 205 (1964) 12, 18

San Juan Liquors v. Consol. City - de Jacksonville,

22

480 F.Supp. 151 (M.D.Fla. 1979) .

Schad v. Burrough of Mt. ere 452 U.S. 61

(1981)
Southeastern Promotions, Ltd. v. Conrad, 420

iain”

14

U.S. 546 (1975)

Speight v. Slaton, 415 U.S. 333 (1974)

21

x

TABLE OF AUTHORITIES—Continued
Page
U.S. Marketing Inc. v. Idaho, 454 U.S. 1140 (1981) ...23, 24

Universal Amusement Co., Inc. v. Vance, 587 F.2d

, |.) aa a 21
Vance v. Universal Amusement Co., Inc., 445 U.S.

308 (1980) 13
Yuclan Enterprises Inc. v. Arre, 488 F.Supp. 820

(D. Hawaii 1980) ... abhenedae 22

State Casks:
4447 Corporation v. Goldsmith, 479 N.E.2d 578

(Ind. App. 1985) . Re eee ae ee
Alexander v. Cily of 8 St. Paul, 303 Minn. 201, 227

N.W.2d 370 (Minn. 1975) .. a lies , ae
City of Delevan v. Thomas, 31 Ul. L App. 3d 630, 334

N.E.2d 190 (1975) 22
City of Minot v. Central Ave. News, ann 308 N.W.

2d 851 (N.D. 1981) ................. 21
City of Seattle v. Bittner, 81 Wash.2d 747, 505 P.2d

(E __———E— 22
Commonwealth ex rel. Davis v. Van ssepntnst 347

A.2d 712 (Penn. 1975) . suite a
General Corp. v. Sweeton, 320 So.2d 668 (Ala.

1975), cert. den. 425 U.S. 904 (1976) 21
Giarrusso v. D’Iberville Gallery, 295 So.2d 891

(La.App. 1974) biedaee:. aa
Gulf States Theaters of Louisiana v. Richardson,

SS . 3
Hamar Theatres Inc. v. City of Newark, 150 N.J.

Super. 14, 374 A.2d 502 (1977) .. A

Kansas v. Motion Picture Entitled ‘‘The Bet’’,
219 Kan. 64, 547 P.2d 760 (1976) .. ae

xi

TABLE OF AUTHORITIES—Continued

Page
Kuhns v. Santa Cruz Co. Bd. of Sup’rs., 128 Cal.
App.3d 369, 181 Cal.Rptr. 1 (1982) 000 22
Mitchem v. State ex rel. Schaub, 250 So.2d 883
(Fla. 1971) . ss siacelatnaeianieteasaii ee, ae
New Riveria Arts Theatre v. Davis, 219 Tenn. 652,
ED ociaeinenieemnicanionnns 21
Parish of Jefferson v. Bayou Landing Ltd., Inc.,
350 So.2d 158 (La. sli wes La. a.ApP 341
So.2d 23 . cas aidie ‘Ee
People v. J.W. Productions, 413 N.Y.8. 2d 552
8
People ex rel. Busch v. icieisiied Room Theater,
17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600
(1976), cert. den. 429 U.S. 922 (1976) een 21
People ex rel. Cooper v. Mitchell Brothers, 128
Cal.App.3d 937, 180 Cal. Rptr. 728 (1982) 0000.16, 17

Perrine v. Municipal Court, 5 Cal.2d 656, 97 Cal.
Rptr. 320, 488 P.2d 648 (1971), cert. den. 404
ff FF _ sss 22

Sanders v. State, 231 Ga. 608, 203 8.E.2d 153 (1974)... 21
Society to Oppose Pornography, Inc. v. Thevis,

ey —
State ex rel. Blee v. Mohney Enterprises, 289 N.E.

2d 519 (Ind.App. 1973) 21
State ex rel. Ewing v. ‘‘Without a Stitch’’, 307

EN SS —
State ex rel. Field v. Hess, 540 P.2d 1165 (Okla.

i . 21
State ex rel, Kidwell v. U.S. Marketing Inc., 102

Idaho 451, 631 P.2d G22 (1981) nee ccccceocmnnnnnnnenenmnmay 20

xii
TABLE OF AUTHORITIES—Continued
Page

CONSTITUTIONAL PROVISIONS:

United States Constitution

Amendment 1 -ateesmeiieiemaeamaninimianiel 2,9, 19
Amendment 14, Section 1 0. (eee eceniiaite 2

FepERAL STATUTES:

18 U.S.C. § 1961, ef 800. ccvnenenennensnannnererneenne seen DOy 22, 23
I antisenencerneniiciione eae 2

Strate STaTuUuTEs:

Indiana Code

§§ 33-4-30.5-1 through 34-4-30.5-6 cen 3
6346461 __ -
§§ 35-49-1-1 through 35-49-1-10 cee eee 3
§§ 35-49-3-1 through 35-49-3-4 eens nsnnnnnma 3
§ 35-49-2-1 cembenieaieiaaaniine 3
RuLEs :
Supreme Court Rule 53 nnn nnnccccennensnsnnenrnnnenmnmnnentcen 24

In The

Supreme Court of the United States

October Term, 1987

uf
~ .

FORT WAYNE BOOKS, ING.,,

Petittottlag

vs.

STATE OF INDIANA, et al.,
Respondents.

7——
AY

PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF THE STATE OF INDIANA

afi >
—

OPINIONS BELOW

The opinion of the Indiana Supreme Court is reported
as 4447 Corporation v. Goldsmith, 504 N.E.2d 559 (Ind.
1987) and is printed in Appendix A; the order and opin-
ion denying rehearing are reported at 509 N.E.2d 174
(Ind. 1987) and are printed in Appendix E; the order
denying a stay pending the timely filing of a petition for
certiorari by an unrelated party below is unreported and
is printed in Appendix B. The opinion of the Indiana
Court of Appeals is reported as 4447 Corporation v. Gold-
smith, 479 N.E.2d 578 (Ind. App. 1985) and is printed in
Appendix C.

7

bo

JURISDICTION

The Supreme Court of the State of Indiana entered
its opinion in this matter on March 2, 1987. The Court
entered an opinion denying rehearing on June 18, 1987.
This petition is filed within 90 days of that date. The
opinion of the Indiana Supreme Court constitutes a final
judgment in a civil case upholding the constitutionality
of various pre-trial restraints on constitutionally protected
expression imposed pursuant to Indiana’s state RICO law.
The Court’s opinion also implicitly gave constitutional
approval to the post-trial forfeiture remedies available
under that same law. Accordingly, this Court has juris-
diction pursuant to 28 U.S.C. § 2101(c).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

UNITED STATES CONSTITUTION
Amendment 1

Congress shall make no law . . . abridging the freedom
of speech, or of the press ....

Amendment 14, Section 1

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,

ee

liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.

PROVISIONS FROM INDIANA CODE

The pertinent provisions of the Indiana Code are pre-
sented in Appendix F. The sections so included are: IC
§§ 34-4-30.5-1 through 34-4-30.5-6, §§ 35-45-6-1 and 35-45-
6-2, §§ 35-49-1-1 through 35-49-1-10, § 35-49-2-1, and $§ 35-
49-3-1 through 35-49-3-4.

Ly
/—

STATEMENT OF THE CASE

This case involves the question of whether the seizure
and padlocking sanctions available under a state’s RICO
statutes are constitutionally permissible as applied to those
whose only alleged offenses involve the sale or exhibition
of two or more allegedly obscene items.

Petitioner Fort Wayne Books, Inc. operates an adult
bookstore in Fort Wayne, Indiana, known as Fort Wayne
Books. Prior to March 19, 1984, petitioner’s bookstore of-
fered for retail sale thousands of different sexually-ori-
ented books, magazines, motion picture films and video-
tapes, all of which were and are presumptively entitled to
constitutional protection. The store also operated numer-
ous motion picture viewing booths wherein a customer
could privately view any of a number of different motion
picture films or videotapes.

4

On March 19, 1984, respondents Stephen M. Sims and
the State of Indiana filed a complaint against petitioner
and others in the Allen Cireuit Court of Allen County,
Indiana, charging them with violation of Indiana’s state
civil RICO statute (IC § 35-45-6-1 et seq.). The sole bases
for the civil RICO allegations were alleged violations of
Indiana’s obscenity laws.

On that same date, these respondents filed a ‘‘Veri-
fied Petition for Seizure of Property Subject to Forfeit-
ure, ete.”’ against petitioner and the other defendants, seek-
ing an ex parte order authorizing them to padlock peti-
tioner’s bookstore and two other bookstores and to seize
immediately all of the inventory, equipment and corporate
assets therefrom. This petition was supported by a police
officer’s probable cause affidavit alleging that the corpo-
rate owners of these bookstores and their employees had
been convicted of certain obscenity offenses that, accord-
ing to the officer, constituted valid ‘‘predicate offenses’’
triggering application of the RICO statute.' The officer
also alleged that he had personally viewed a number of
motion picture films and videotapes exhibited in petition-
er’s store and had concluded that they were legally ob-
scene. The officer made similar allegations as to the other
two bookstores named in the complaint.

On this same date, March 19, 1984, an ex parte
hearing was held on the state’s forfeiture petition. Nei-

. Petitioner does not agree that any of the convictions al-
leged in the officer's affidavit constitute valid predicate offenses
under Indiana’s RICO statute. However, resolution of this issue
will involve complicated issues of statutory Construction not here
relevant. Of course, since ee ee ae made b
rte, there was no ity ati )
Officer's assertion that he requisite predicate offenses © ad

committed.

a

a

ther petitioner nor its agents or attorneys were given any
notice of the hearing.

Following the ex parte hearing, the trial court im-
mediately concluded that there was probable cause to be-
lieve that petitioner and the owners of the other two book-
stores had committed two or more violations of the state’s
obscenity laws and that such conduct constituted a viola-
tion of the state’s civil RICO statute. Accordingly, the trial
court, without any notice to petitioner or the other af-
fected businesses, issued an order commanding the im.
mediate seizure of the entire contents of each of the three
bookstores and authorizing the immediate padlocking of

all three stores. (The seizure order is reproduced in Ap-
pendix D.)

The authorities then padlocked all three bookstores
and denied access to them by store employees and the pub-

lic alike. No trial date was set, nor has one ever been set
in this case.

Thereafter, petitioner promptly filed a motion in the
trial court te \acate the ex parte order of seizure and clo-
sure. This motion asserted that the ex parte order lacked
the numerous procedural safeguards required by the First
Amendment and also, in any event, constituted a prior re-
straint of First Amendment rights. (Memorandum of Law
In Support Of Motion To Vacate And/Or Modify, ete.,
filed in the Allen Circuit Court on March 27, 1984.)

On March 29, 1984, a hearing was held on petitioner’s
motion to vacate the ex parte order. During the course
of this hearing it was brought to the trial court’s atten-
tion that a virtually identical ez parte pretrial closure or-
der had been issued pursuant to these same civil RICO

6

provisions in a case involving certain adult bookstores in
the City of Indianapolis and that this ex parte order had
been stayed by order of the Indiana Court of Appeals
pending disposition of the bookstore owners’ interlocutory
appeal from the interim closure order. Notwithstanding
the Allen County trial court’s awareness of this ruling of
its own state intermediate appellate court, the trial court,
on March 29, 1984, denied petitioner’s motion to vacate the
ex parte closure and seizure order.

The next day, March 30, 1984, after the stores of peti-
tioner and the other defendants had already been pad-
locked, the authorities then, without notice, commenced re-
moval of the entire contents of the three establishments,
including tens of thousands of unlitigated books, maga-
zines and films, as well as items such as film projectors,
eash registers and beokracks. As mentioned above, the
sole basis for these mass seizures was the allegation that
each store had committed two or more prior obscenity
offenses.

On April 3, 1984 the defendants filed an Emergency
Motion for Inventory of Property Removed and/or for
Return of Property. This motion was denied by the trial
court on April 4, 1984.

On April 3, 1984 and thereafter, on April 12, 1984, the
defendants filed with the trial court a petition to certify
and a supplemental petition to certify its interim orders
as appealable by interlocutory appeal. On April 18, 1984
the trial court granted the request for certification but
denied a motion to stay its interim injunctive order pend-
ing the interlocutory appeal. On April 27, 1984, the cor.
porate defendants, including petitioner, perfected their in-
terlocutory appeal and simultaneously filed in the Indiana
Court of Appeals an emergency stay application, desig-

i

nated as Motion For Stay (Modification) Of Interlocutory
Injunction Without Bond Pending Appeal. Petitioner's
stay application asserted, inter alia, that, under National
Socialist Party v. Village of Skokie, 432 U.S. 43 (1977),
a stay pending appeal was mandatory because state law did
not provide for immediate appellate review of the interim
ex parte closure order. Petitioner’s other substantive and
procedural challenges were jointly presented in its stay
application and in its briefs filed on the merits of the
interlocutory appeal.

Despite repeated written and oral requests by peti-
tioner and the other appellants for immediate consideration
of their stay application? pending the interlocutory appeal,

2 On May 2, 1984, five days after petitioner filed its applica-
tion for stay in the Court of Appeals, respondent Sims filed a
Verified Petition For Transfer Of Case to the Supreme Court of
Indiana. Under Indiana law, the effect of the filing of such a
petition is to immediately divest the Court of Appeals of juris-
diction over both the stay application and the merits of the in-
terlocutory appeal. However, this procedural device placed the
issues relevant to the stay squarely before the Supreme Court of
Indiana. Nonetheless, after nearly three months, the Indiana
Supreme Court denied the petition for transfer on July 17, 1984
and expressly remanded the stay application back to the Court
of Appeals.

Petitioner then expected a prompt consideration of its stay
application because two days after the Petition For Transfer
had been filed (May 2, 1984) the Court of Appeals transferred
the Fort Wayne case to the division of the Court of Appeals
which had issued a similar stay request in the Indianapolis case.
However, when, by September 23, 1984, no action had yet been
taken by the Court of Appeals on the stay application, petition-
er filed another document in the Court of Appeals entitled “Re-
quest For Expeditious Ruling On Motion For Stay (Modification)
Filed April 27, 1984.”

Respondent Sims filed papers on October 10, 1984 urging
the Court to defer action on the stay request pending ultimate
resolution of the appeal.

(Continued on next page)

8

there had still been no appellate ruling on the stay applica-
tion as of March 26, 1985, nearly a full year after it was
filed. Throughovt that time, all three bookstores remained
sealed and padlocked by virtue of the trial court’s unre-
viewed ex parte closure order.

On March 26, 1985, petitioner and the other bookstore
owners filed an application to Circuit Justice Stevens of
this Court for a stay of the ex parte interim injunctive
order. Acting in his capacity as Circuit Justice, Justice
Stevens ordered respondents to respond to petitioner’s stay
application on or before April 4, 1985.

On April 4, 1985, the Indiana Court of Appeals ren-
dered moot the stay application presented to Justice Ste-
vens by finally granting the year-old stay application.
Thereafter the padlocks were removed and the three
bookstores were allowed to resume operations pending the
outcome of the appeal.

During roughly the same period that the foregoing liti-
gation involving the Fort Wayne bookstores was taking
place, a similar state RICO action was filed and litigated
against three wholly unrelated bookstores in Indianapolis.
These three stores were alleged to be part of one ‘‘enter-
prise.’’ The primary difference was that there were no
allegations in the Indianapolis case that any of the stores
or their employees had been convicted of any obscenity vio-
lations. Rather, that RICO complaint was based exclu-
sively upon probable cause allegations of obscenity viola-

(Continued from previous page)

in addition to the foregoing efforts of petitioner to secure
appellate consideration of its stay application, its counsel made
repeated calls to the Clerk of the Court of Appeals advising them
of the need for prompt consideration of the stay application.

3 Fort Wayne Books, et al. v. Indiana, et al., Docket # A-734.

9

tions at two of the three stores. The other primary dif-
ference is that in the Indianapolis case, one of the three
stores had not yet opened at the time the court issued its
ex parte order.

The Indianapolis trial court issued an ex parte order
commanding the sealing of the one not-yet opened store but
allowing the other two stores to continue to operate, sub-
ject to the restraint that they could not transfer any of
their assets. There was no allegation that the restrained
store had ever violated any obscenity law.

Just as in the Fort Wayne litigation, the Indianapolis
bookstores filed an interlocutory appeal from the interim
ex parte orders and simultaneously sought a stay from the
Court of Appeals pending the outcome of the interlocutory
appeal. That stay was granted on February 2, 1984.

On May 4, 1984 the Indiana Court of Appeals ordered
the consolidation of the interlocutory appeals in the I[n-
dianapolis case and the Fort Wayne case. Even so, as men-
tioned above, the Court of Appeals inexplicably delayed
ruling on the I’ort Wayne appellants’ stay application until
nearly a year later, April 4, 1985.

On June 12, 1985 the Indiana Court of Appeals issued
its ruling on the consolidated interlocutory appeal. (Ap-
pendix C.) The court concluded that, as applied to those
whose only alleged offenses involve violations of the state's
obscenity law, the seizure and padlocking sanctions of the
state RICO Act constitute an unconstitutional prior re-
straint of First Amendment rights. The court also con-
cluded that the statute and the appealed ez parte orders
are unconstitutional because they lack several procedural
safeguards required by the First Amendment.

Thereafter, the Indiana Supreme Court reversed the
judgment of the Court of Appeals. In a split opinion, the

10

majority concluded that a statute authorizing direct sane-
tions against protected expression need not be measured by
First Amendment standards if the legislative purpose
was non-censorial. It was apparently immaterial to the
court’s holding that the sanctions only come into play upon
a finding of unlawful expressive activity. (Contrast this
Court’s recent holding in Arcara v. Cloud Books, — U.S.
—, 106 S.Ct. 3172 (1986).) Coneluding that the statutory
purpose of including obscenity as a predicate RICO of-
fense was unrelated to a desire to suppress speech, the
court held that the Court of Appeals had erred in subject-
ing the statute to First Amendment-prior restraint analy-
sis. Dissenting, Judge DeBruler disagreed with ‘* e under-
lying premise of the majority opinion, choosing tc ‘ely in-
stead on this Court’s holding most recently articulated in
Schad v. Burrough of Mt. Ephraim, 452 U.S. 61, 68 (1981),
that ‘‘the standard of review is determined by the nature
of the right assertedly threatened or violated rather than
by the power being exercised [by the state].’’

The majority also rendered two significant construc-
tions of the statute. First, it held that the state need not
allege any prior obscenity convictions but need only make
probable cause allegations of unproved obscenity violations.
Second, in upholding the Indianapolis order sealing the
one location which had never been open, the court neces-
sarily construed the statute so that two or more obscenity
violations at any one store in a chain of stores justifies
closure orders directed to any or all of the stores in the
chain.

Finally, the majority opinion rejected petitioner’s
claim that the ez parte seizure and padlocking procedures
authorized by the statute lacked adequate procedural safe-

I Aele. —
—

11

guards required by the First Amendment. Specifically,
.he majority entirely ignored petitioner’s contention that
mass seizures of literature can never be conducted on the
vasis of ex parte probable cause determinations.

The only one of petitioner’s procedural arguments spe-
cifically addressed by the court’s opinion was the conten-
tion that the interim restraints are void because they are of
indefinite duration and that the statutory scheme fails to
require a final trial court determination of obscenity within
a fixed or specified brief period. The court noted that the
statute does not require trial to be set within any specified
period of time after execution of the seizure order. How-
ever, rather than reading into the statute a specific time
limit for the holding of such a trial, the court instead
construed the statute merely to require a trial ‘‘within a
‘reasonable’ time.’’

For reasons not here relevant, the three bookstores
involved in the Indianapolis litigation have ceased doing
business as have all of the Fort Wayne bookstores except
for petitioner, Fort Wayne Books, Inc.

There has been no trial yet in this action nor has a trial
date been set.

Petitioner has been informed that, absent this Court’s
review, respondent Sims will reinstitute the padlocking of
petitioner’s store.

12

REASONS FOR GRANTING THE WRIT

THE INDIANA SUPREME COURT'S DECISION

UPHOLDING THE FICO STATUTE’S LACK

OF PROCEDURAL SAFEGUARDS IS IN CON.

FLICT WITH THE APPLICABLE DECISIONS
OF THIS COURT

A. The Statute’s Authorization of Ex Parte Orders Au-
thorizing Mass Seizures and Padlocking of Businesses
Engaged in First Amendment Activity Without Notice
or a Prior Adversary Hearing Is in Conflict with This
Court’s Ojinions in Marcus v. Search Warrant, 367
U.S. 717 (1961); Quantity of Books v. v. Kansas, 378 U.S

205 (1964) ; Carroll v President and Com’rs of Princess
Anne, 393 U.S. 175 (1968); Heller v. New York, 413
U.S. 483 (1973); and Lo-Ji Sales, Inc. v. New York, 442
U.8. 319 (1979).

The Indiana Supreme Court’s opinion approved of the
ex parte seizure and padlocking order in this case even
though respondents made absolutely no attempt to notify
petitioner nor was petitioner given any opportunity to
appear and be heard prior to the issuance of the order
authorizing seizure of an enormous quantity of presump-
tively protected media materials.

In Marcus v. Search Warrant, 367 U.S. 717 (1961) and
Quantity of Books v. Kansas, 378 U.S. 205 (1964), this
Court held that there could be no mass seizure of the in-
ventory of a book store in the absence of a prior adversary
hearing wherein the court could foeus searchingly on the
obscenity of every item which the State sought to seize.

In the subsequent case of Carroll v. President and
Com’rs of Princess Anne, 393 U.S. 175 (1968), this Court

13

expanded the principles of Quantity of Books into a gen-
eral prohibition of ex parte injunctions restraining activi-
ties ordinarily constituting speech and press activity. Car-
roll held that, at a bare minimum, some advance notice is
required in every case.

Finally, in Heller v. New York, 413 U.S. 483 (1973);
Lo-Ji Sales v. New York, 442 U.S. 319 (1979); and New
York v. P. J. Video, Inc., — U.S. —, 106 8.Ct. 1610 (1986),
this Court indicated that it continues to follow the holdings
in Quanti'y of Books and Marcus, both supra, that “the
large seale seizure of books or films constituting a ‘prior
restraint’ must be preceded by an adversary hearing on
the question of obscenity.”’ P. J. Video, supra, — U.S. a
106 S.Ct. at 1614.

Accordingly, the ex parte order upheld by the Indiana
Supreme Court is in conflict with a substantial body of
this Court’s precedent.

B. The Statute’s Authorization of Interim Seizure and
Padlocking Orders of Indefinite Duration Is in Con.
flict with This Court’s Opinions in Freedman v. Mary-
land, 330 U.S. 51 (1965) and Vance v. Universal
Amusement Co., 445 U.S. 308 (1980). ngcedal

The ex parte seizure order in this case was an interim
order of indefinite duration based upon a mere probable
cause showing that two or more obscenity violations had
occurred. ‘This is precisely the type of procedure that
was most recently condemned by this Court in Vance v.
Universal Amusement Co., Inc., 445 U.S. 308 (1980). In
Vance this Court condemned a Texas statutory scheme
whereby a trial court was authorized to issue an interim
injunction of indefinite duration against the exhibition of

14

any obseene motion pictures whether named or unnamed,
all upon a preliminary finding that one or more obscene
film(s) had been exhibited in the past. Relying upon its
holdings in Freedman v. Maryland, 380 U.S. 51 (1965), and
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546
(1975), this Court concluded that the indefinite duration of
the interim injunction created an impermissible prior re-
straint upon the exhibition of films which may or may
not ultimately prove to be obscene in a final determination.

In Freedman, supra, this Court held that ary restraint
on the exhibition of films believed to be obscene prior to
a final judicial determination on the merits must be lim-
ited to ‘the shortest fiwed period compatible with sound
judicial resolution.’”’ (Emphasis added) 380 U.S. at 59. As
the Indiana Supreme Court conceded, there is nothing in
the statutory framework here at issue which compels a
final judicial determination within any specified period.
Although the Indiana Supreme Court had the opportunity
to engraft a fixed period into the statute by way of an
authoritative saving construction, it declined to do so and
instead, simply held that the statute required trial to occur
‘‘within a ‘reasonable’ time’’ without any further clari-
fication of that phrase. ‘The facts of the present case
patently demonstrate the unworkability of so vague a
standard.

C. The Statute’s Failure To Guarantee Any Prompt Ap-
pellate Review of Interim or Permanent Seizure and
Padlocking Orders Is in Conflict with This Court’s
Holding in National Socialist Party of America v. Vil-

lage of Skokie, 432 U 8. 43 (1977).

The Indiana statutory RICO scheme not only fails to
require a prompt trial court determination of the merits

el he

ee

Tg tl Ot he

15

of ‘he forfeiture proceeding, but fails to guarantee the
availability of either ‘‘immediate’’ or ‘‘prompt’’ appella’e
review of any interim or final injunctive orders. The
gravity of this defect was illustrated by the facts in this
very case, Petitioner filed an application for a stay in
the Indiana Court of Appeals within a few days of the date
that the trial court denied its motion to vacate the ex parte
seizure order. Notwithstanding every effort by petitioner
to attempt to gain prompt appellate review of the stay
application, it was over a year before the Court of Appeals
finally granted the requested stay. Throughout that time
period all three Fort Wayne bookstores remained closed
under the force of the ex parte padlocking order.

In National Socialist Party of America v. Village of
Skokie, 432 U.S. 43 (1977), a trial court had entered a
permanent injunction preventing petitioners from con-
ducting a march or parade displaying the swastika within
‘he village of Skokie, Illinois. Relying once again on the
seminal case of Freedom v. Maryland, supra, this Court
held that the petitioners were entitled, as of right, to a
stay of that injunctive order in the absence of ‘‘immediate
appellate review’’ of the trial court’s injunction. Accord,
M.L.C., Ltd. v. Bedford Township, 463 U.S. 1341 (1983)
(per Brennan, J., as Circuit Justice). It would seem to
follow with equal force that any interim ex parte injunc-
tion of speech-related activities such as was issued by the
trial court herein would be equally void absent a guarantee
of immediate, or at least very prompt, appellate review.

Although there has now been a ruling on petitioner’s
interlocutory appeal, ihe facts of this case demonstrate
that this is an issue which, if left unresolved, will continue

16

to cause substantial irreparable injury while evading ulti-
mate appellate review. Accordingly, this Court is urged
to grant review and squarely delineate that neither interim
nor permanent restraints of the type involved in this case
may constitutionally be enforced prior to final judicial
resolution absent an express statutory guarantee of prompt
appellate review which must occur within a specified briet
period.

D. The Statute’s Authorization of Mass Seizures Based
Only Upon a Probable Cause Standard of Proof of Ob-
scenity Is in Conflict With the Principles Articulated
in California ex rel. Cooper v. Mitchell Bros., 54 U.S.
90 ( ).

In California ex rel. Cooper v. Mitchell Bros., 54 US.

90 (1981), the State brought an action seeking to perman-

ently restrain the exhibition of specific allegedly obscene

films. The issue presented to this Court was whether or
not the trial court erred in concluding that the State was
constitutionally required to prove obscenity by the eviden-
tiary standard of ‘‘beyond a reasonable doubt.’’ This
Court did not resolve the question of the minimal standard
of proof that is constitutionally required, but merely held
that proof beyond a reasonable doubt was not required in
that case. This Court’s opinion, however, recognized that
there was a lesser standard of proof, the ‘‘clear and con-
vincing’’ standard, which was ‘‘reserved to protect par-
ticularly important interests in a limite 1 number of civil
eases.’’ 454 U.S. 93. Relying on this language, the Cali-
fornia appellate court on remand concluded that the clear
and convincing evidence standard was in fact constitution-
ally required by the First Amendment. See People ex rel.

—_ es,

7. 130 Cal.

In the Ares?ml case, a restraint far greater than that

of a few’specific filwe found obscene oceurred. Here, th
Court's «x parte order\prohfhited petitioner from exhibit-
ing not only the few fills specifically found to b prob
ably obscene, but alse prevented petilioner trom exhibiting
any tilms or irom selling anv books, mavcazines, videotapes,

ete. While restraints as pervasive as those imposed here
by the trial court would be impermissible under any stan
dard of proof, certainly the ‘‘ probable cause’’ standard o:
proot utilized herein is fer below the minimal constitu
tional threshold for any typ resump
lively proter ied expression

THE USE OF RICO LAWS TO RESTRAIN ALL
PRESUMPTIVELY PROTECTED FUTURE
SPEECH BY THE DEVICE OF PADLOCKING
A BUSINESS FOUND TO HAVE VIOLATED
OBSCENITY LAWS IN THE PAST, PRESENTS
AN EXTREMELY IMPORTANT QUESTION OF
CONSTITUTIONAL LAW WHICH REQUIRES
RESOLUTION BY THIS COURT.

A. This Court Should Resolve Whether the Doctrine of
Prior Restraint Established in Near v. Minnesota, 28°
U.8. 697 (1931), Prohibits the State From Padlocking
a Bookstore, Thus Restraining All Future Speech at
Such Store, Simply Based Upon Two or More Alleged
Violations of State Obscenity Laws.

The trial court’s ex parte seizure order, pursuant to
which vast quantities of presumptively constitutiona y
protected materials were removed from petitioner's store,

is in clear conflict with the various *‘First Amendment
due process”’ lines of case authority diseussed supra.
However, by also commanding the seizure of neutral items
necessary for conducting the business (¢.g., cash registers,
film projectors, book racks, ete.) and ordering the pad-
locking and sealing of all three book stores, the trial
court’s order also prospectively prevented petitioner from
selling or exhibiting media materials which did not even
exist at the time of the trial court’s order. This absolute
restraint on future presumptively protected activity is
precisely the type of restraint which this Court condemned
in the landmark case of Near v. Minnesota, 283 U.S. 697
(1931).

In Near, supra, this Court struck down a statute pro-
viding for the abatement, as a public nuisance, of any
business which ‘‘regularly or customarily’’ published de-
famatory publications.

The plaintiff had filed a civil action under the statuie
for abatement of a public nuisance, alleging that on nine
separate dates the defendant had published defamatory
newspaper articles and that the defendant was in the bus-
iness of ‘‘regularly’’ or ‘‘eustomarily’’ publishing de-
famatory articles. The trial court made findings of fact
following the allegations of the complaint, concluding that
the defendants ‘‘did engage in the business of regularly
and customarily producing, publishing and circulating a
.. . defamatory newspaper.’’ 283 U.S. at 706. Based on
these findings, the Court permanently enjoined the defen-
dants from publishing any future defamatory articles.
The Minnesota Supreme Court affirmed the judgment.

19

On appeal, this Court concluded that the statute’s
operation and effect was to impose a prior restraint on
future publications and that the First Amendment pro-
hibits the states from restraining future presumptively
protected expression based upon prior unlawful speech
activity.

Indeed, this Court stressed that the number of prior
speech violations was immaterial to its holding:

**{I)}t does not matter that the newspaper or periodi-

eal is found to be ‘largely’ or ‘chiefly’ devoted to the

publication of such derelictions.’’ (Emphasis added).
283 U.S. at 720.

This Court also pointed out that its holding was not
affected by whether or not the libelous speech might con-
stitute a criminal act. Jd. at 720. =

Finally, this Court held that the state’s characteriza-
tion of the undesired speech activity as a ‘‘nuisance’’ could
not allow the restraint to escape First Amendment seru-
tiny.

‘‘Characterizing the publication as a business and the

business as a nuisance, does not permit an invasion

of the constitutional immunity against restraint.’’ Jd.
at 720.

Similarly, characterizing two prior obscenity violations
as ‘‘racketeering activity’’ provides no talismanic im-
munity from the constitutional prohibition against prior
restraints.

the States As to Their Constitutionality.

Subsequent to the federal government’s enactment of
the initial RICO legislation (18 U.S.C. § 1961 ef seq.), a
growing number of states have adopted their own RICO
laws and, unlike the original federal RICO statutes, some
of these states have included obscenity offenses as predi
cate acts justifying the full panoply of severe RICO sane-
tions. For example, the states of Indiana, Florida and
Arizona all include obscenity as a predicate offense capable
of triggering application of their RICO laws. The grow-
ing use of this dangerous enforcement tool strongly mili-
tates in favor of this Court’s diseretionary review.

Moreover, the state courts appear divided on the ques-
tion of whether these summary and draconinan laws can
be used as a substitute for enforcement of traditional ob-
scenity statutes. In a very recent opinion, the Arizona
Court of Appeals cited with approval the opinion of the
Indiana Court of Appeals in the present case and disagreed
with the majority holding of the Indiana Supreme Court,
concluding that the Arizona RICO statute was unconsti-
tutional as applied to situations where the only predicate
offenses involved alleged violations of the state’s obscen-
ity laws. A copy of that opinion is reproduced in Ap-
pendix G.

There is also a split among the lower state and federal
courts on the closely related question of whether book-
stores or theaters can be padlocked as ‘‘nuisances’’ or have
their licenses revoked simply upon a finding that, in the
past, they have sold or exhibited one or more obscene items.

21

The overwhelming majority of state and lower federal
courts to have considered this issue have concluded that
such restraints violate the First Amendment principles
initially articulated in Near, supra, and are void on their
face.* :

* The following cases have found nuisance laws unconstitu-
tional which provide for the padlocking of businesses where ob-
scenity offenses have occurred in the past: Universal Amuse-
ment Co., Inc. v. Vance, 587 F.2d 159, 164-166 (Sth Cir. en banc
1978) [as to this particular point, all 14 judges of the en banc
court were in agreement |, aff'd. on other grounds, 445 U.S. 308
(1980); Pollitt v. Connick, 596 F.Supp. 261, 269-272 (E.D.La.
1984); People ex rel. Busch v. Projection Room Theater, 17 C.3d
42, 130 Cal.Rptr. 328, 550 P.2d 600 (1976), cert. den. 429 U.S.
922 (1976); General Corp. v. Sweeton, 320 So.2d 668 (Ala. 1975),
cert. den. 425 U.S. 904 (1976); Kansas v. Motion Picture Entitled
“The Bet’, 219 Kan. 64, 547 P.2d 760 (1976); Gulf States Theaters
of Louisiana v. Richardson, 287 So.2d 480 (La. 1974); New Riveria
Arts Theatre v. Davis, 219 Tenn. 652, 412 S.W.2d 890 (1967):
Society to Oppose Pornography, Inc. v. Thevis, 255 So.2d 876
(La.App. 1972); Giarrusso v. D’iberville Gallery, 295 So.2d 891
(La.App. 1974); State ex rel. Blee v. Mohney Enterprises, 289 N.E.
2d 519 (In.App. 1973); Sanders v. State, 231 Ga. 608, 203 S.£.2d
153 (1974); State ex rel. Field v. Hess, 540 P.2d 1165 (Okla. 1975);
Commonwealth ex rel. Davis v. Van Emberg, 347 A.2d 712 (Penn.
1975); City of Minot v. “entral Ave. News, Inc., 308 N.W.2d 851
(N:D. 1981); Parish of fefferson v. Bayou Landing Ltd., inc., 350
So.2d 158 (La. 1977); overruling La.App., 341 So.2d 23; Mitchem
v. State ex rel Schaub, 250 So.2d 883 (Fla.1971). See also Nihiser
v. Sendak, 405 F.Supp. 482, 491-492 (N.D.Ind.1974), vacated and
remanded on other grounds, 423 U.S. 976 (1975), order re-en-
tered August 16, 1976 \unpub.), aff'd. 431 U.S. 961 (1977); Huff-
man v. Pursue, Ltd, 420 U.S. 592, 612, n. 23 (1975); cf. Speight v.
Slaton, 415 U.S. 333 (1974); State ex rel. Ewing v. “Without a
Stitch”, 307 N.E.2d 911 (Ohio 1974).

The following cases have held unconstitutional laws which
allow a permit to be either revoked or denied upon a prior ob-
scenity violation: Gayety Theaters, Inc. v. City of Miami, 719
F.2d 1550 (11th Cir. 1983); Entertainment Concepts Inc. Ill v.
Maciejewski, 631 F.2d 497, 506 (7th Cir. 1980); Genusa v. City of
Peoria, 475 F.Supp. 1199, 1207-09 (C.D.IIl. 1979), aff'd. 619 F.2d

(Continued on next page)

Only a tiny fraction of the state and lower federal
courts to have considered these issues have upheld such
restraints.

C. This Issue Should Be Resolved By This Court Because
the Federal RICO Statute Has Been Recently Amend-
ed To Include Obscenity As a ‘‘Predicate Offense” and
Federal RICO Prosecutions Based Solely Upon Ob-
scenity Offenses Have Now Commenced.

Although the federal RICO statute (18 U.S.C. § 1961,
et seq.) did not originally include obscenity as one of the
predicate offenses constituting ‘‘racketeering activity,’’ it

(Continued from previous page)

1203, 1217-1220 (7th Cir. 1980); Cornflower Entertainment, Inc.
v. Salt Lake City Corp., 485 F.Supp. 777 (D.Utah 1980); Bayside
Enterprises, Inc. v. Carson, 470 F.Supp. 1140 (M.D.Fla. 1979); San
Juan Liquors v. Consol. City of Jacksonville, 480 F.Supp. 151
(M.D.Fla. 1979); Natco Theatres Inc., v. Ratner, 463 F.Supp 1124
(S.D.N.Y. 1979); Yuclan Enterprises Inc. v. Arre, 488 F.Supp. 820
(D. Hawaii 1980); Avon 42nd Street Corp. v. Myerson, 352
F.Supp. 994 (S.D.N.Y. 1972); Oregon Bookmark Corp. v. Schrunk,
321 F.Supp. 639 (D.Oregon 1970); Perrine v. Municipal Court,
5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648 (1971), cert. den.
404 U.S. 1038 (1972); Kuhns v. Santa Cruz Co. Bd. of Sup’rs., 128
Cal. App.3d 369, 374-375, 181 Cal.Rptr. 1, 3-4 (1982); City of
Seattle v. Bittner, 81 Wash.2d 747, 505 P.2d 126 (1973); Alexan-
der v. City of St. Paul, 303 Minn. 201, 227 N.W.2d 370 (Minn.
1975); City of Delevan v. Thomas, 31 Ill. App.3d 630, 334 N.E.2d
190 (1975); Hamar Theatres Inc. v. City of Newark, 150 N.j.Super.
14, 374 A.2d 502 (1977); People v. J.W. Productions, 413 N.Y.S.
2d 552 (N.Y.C.Cr.Ct. 1979); see also Intern. Soc. for Krishna Con-
sciousness v. Eaves, 601 F.2d 809, 832-833 (Sth Cir. 1979); Fer-
nandes v. Limmer, 663 F.2d 619, 629-630, 632 (5th Cir. 1981);
cf. Marks v. City of Newport, Ky., 344 F.Supp. 675 (E.D.Ky. 1972);
Chulchian v. City of Indianapolis, 477 F.Supp. 128, 131-132 (S.D.
ind. 1979), affd., 633 F.2d 27, 30 (7th Cir. 1980).

5 See, e.g., State ex rel. Kidwel! v. U.S. Marketing Inc., 102
idaho 451, 631 P.2d 622 (1981) and cases there cited.

was recently added in an eleventh hour amendment to 18
U.S.C. § 1961(1). Federal prosecutors have now filed the
first federal RICO case where the only alleged predicate
offenses involve the interstate transportation of allegedly

obscene material.®

Since the Department of Justice has now indicated
that the Federal Government will be joining in the prac-
tice of utilizing RICO sanctions as a new tool for dealing
severely with those alleged to have sold or exhibited two
or more obscene items, it is incumbent upon this Court to
address the threshold question of whether those sanctions
can be applied where the exclusive basis for their impcsi-
tion is allegedly unlawful expressive activity, and if they
can be applied at all, whether special procedural safe-
guards are required.

D. This Court Should Grant Review To Resolve The Same
Question of Prior Restraint Upon Which It Noted
Probable Jurisdiction in the Case of U.S. Marketing,
Inc. v. Idaho, 454 U.S. 1140 (1981), Which Became
Moot Prior to Plenary Review.

This Court has already decided that issues virtually
identical to those presented by this petition were of suffi-
cient substantiality to warrant the notation of probable
jurisdiction. In U.S. Marketing, Ine. v. Idaho, 454 US.
1140 (1982), this Court noted probable jurisdiction over
an appeal from the opinion of the Supreme Court of Idaho
sub nom. State ex rel. Kidwell v. U.S. Marketing, Inc.,
102 Idaho 451, 631 P.2d 622 (1981). In that case, the state
commenced an action for declaratory and injunctive relief

6 United States v. Pryba, E.D.Va. No. CR 87-00208-A. The in-
dictment in that case was filed on August 14, 1987.

24

against the owners and lessees of two adult bookstores
pursuant to the Idaho Moral Nuisance Abatement Aet.
The state sought a declaration that some of the materials
sold or exhibited by defendants were obscene and asked
for an injunctive order to abate the entire premises for a
one-year period. Although the trial court found the abate-
ment remedies to be an unconstitutional prior restraint of
the type prohibited by Near v. Minnesota, supra, the Idaho
Supreme Court concluded that that remedy would be con-
stitutionally permissible. This Court then noted probable
jurisdiction of the bookstore owners’ appeal. 454 U.S. 1140
(1982). However, before the case could be argued, it was
dismissed pursuant to Supreme Court Rule 53. 455 U.S.
1009 (1982).

The underlying issue of prior restraint is no less sub-
stantial now than it was when this Court noted probable
jurisdiction in the U.S. Marketing case.

E. Immediate Resolution of This Issue Is Important Be-
cause Statutes Such As This One Pose a Severe Danger
to the First Amendment Rights of Millions of Ameri-
cans and to a Wide Range of Communicative Media.
The final, but perhaps most important, reason why this

Court should grant review in this case is that the statute

upheld in this case represents one of the greatest dangers

to the First Amendment rights of millions of Americans
and to the entire media industry that has ever been ap-
proved by any court.

Statistics cited in news periodicals such as TIME,
NEWSWEEK and FORTUNE indicate that sexually frank
‘‘adult’’ films and videotapes have become an increasingly
important part of the American entertainment landscape.
Community standards have become increasing tolerant re-
garding adult, sexually-oriented materials, consumption

25

of whi -h has risen (o hundre:ts of millions of nits annually
and is predicte] to con‘tinxe to increase dramatically. With
respect to videocassette rentals alone, industry statistics
indicate some 54,000,000 rentals of X-rated videotapes in
1984, and over one hundred million such rentals in 1986.’
Moreover, as TIME Magazine (March 30, 1987, at p. 63)
has reported, ‘‘Women account for perhaps 40% of the
estimated 100 million rentals of X-rated tapes each year.’’

7 Several national magazine articles in 1984 provided evi-
dence of the fact that X-rated video cassettes have become stan-
dard fare for viewing in American homes: “VCRs: Coming On
Strong,” TIME Magazine, December 24, 1984 (pp. 44-50); “The
Crowded New World of TV,” FORTUNE Magazine, September
17, 1984 (pp. 156-166); “The Video Revolution’ NEWSWEEK
Magazine, August 6, 1984 (pp. 50-57).

According to TIME, nearly 17,000,000 American homes—20
percent of all homes with television sets—now have at least one
video cassette recorder. TIME, supra, at 45.

“More than 14,000 pre-recorded [video] cassette

[titles] are currently on the market . . . (an estimated 7,000
of them X-rated) ....” Id.

“An estimated 20,000,000 pre-recorded cassettes will
be sold in 1984, better than double the number of a year
ago.” id.

“LA]n estimated 70 percent to 80 percent of [video
cassette recorder owners} buy or rent pre-recorded cassettes
at least occasionally.” /d. at 45.

“Consumers will spend about $1.8 billion dollars to
rent cassettes this year and about $500 million dollars to
buy them .... They rent... at prices that average around
$5.00 a night and are as low as $1.00 in some cities.” FOR-
TUNE, supra, at 160.

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26

(Cor tinued from previous page)

“[ Explicit] pornography accounts for a hefty share of
the cassette business. X-rated movies were among the first
to be released for home video and once made up about
half of all sales and rentals. That share hes dropped to
around 15 percent by most industry estimates... [M ]any
VCR owners . . . will sneak-a-peek at X-rated tapes in. . .
their own homes.” TIME, supra, at 47.

“Tapes like these are lining the shelves of more than
12,000 video specialty stores around the country. Their
business is skyrocketing.” /d.

The market is growing explosively. NEWSWEEK estimates
that the total annual revenue generated from video rentals and
sales could reach $5 billion in 1988, with “adult’ moterials ac-
counting for 8 percent of that total. NEWSWEEK, supra, at 52.

Certain conclusions may be fairly inferred from the fore-
going data. If $1.8 billion dollars was spent on video rentals in
1984 (at an average of $5.00 a tape), of which 15 percent was on
adult materials, there were 54,000,000 rentals of adult video
tapes in 1984. [In light of the fact that there are many stores
where tapes rent for substantially less than $5.00 per tape, it is
likely that the figure of 54,000,000 rentals is substantially fess
than the actual number of adult video cassette rentals in 1984.
Although it is difficult to estimate with any precision the num-
ber of people likely to have viewed these 54,000,000 or more
rental tapes, any such calculations should take into account the
likelihood that most of these tapes were viewed by more than
one person. Of course the possibility of multiple rentals by cer-
tain consumers should also be considered. }

The corresponding data for 1986 are included in a regularly
compiled list of statistical information entitled “Harper's Index,”
which appeared in the March 1, 1987 edition of the Los Angeles
Times. Harper's index reported that there were 1,040,000,000
fone billion forty million) rentais of all videotapes in 1986 in the
United States. Assuming that the percentage of X-rated video-

(Continued on next page)

27

The foregoing statistics demonstrate the obvious
proposition that the closure of an adult bookstore by the
state not only removes from circulation the particular
films or magazines believed to exceed community stand-
ards, but also necessarily eliminates the publie’s access
to a vast quantity of sexually-explicit media materials
that have achieved a notable degree of community aceept-
ance.

Finally, allowing the Indiana Supreme Court’s opin-
ion to stand will not only jeopardize the American public’s
right to view constitutionally-protected media materials
which are sexually-oriented, it will also pose a severe
threat to a wide variety of broad-based media industries
throughout this country. For example, if a state or fed-
eral prosecutor can establish a probable cause showing
to convince any judge that two or more videotapes rented
by a national audiv and video outlet chainstore (¢.¢., Tow-
er Records, The Warehouse Records & Tapes, ete.) are ob-
scene, every store belonging to that chain within the area
of the court’s jurisdiction would unquestionably be part
of the ‘‘racketeering enterprise’’ and subject to the pos-
sibility of massive forfeiture or abatement orders. These
orders would restrain not only adult videotapes, but by

(Continued from previous page)

tape rentals dropped from 15°/o in 1984 to 10°/o in 1986 (because
of the enormous expansion of the total number of videotapes
available—not because of a decline in the absolute number of
X-rated videos rented), then there were 104,000,000 rentals of
X-rated videos in 1986.

28

padlocking the store, would restrain the business from sell-
ing or renting a vast variety of general audience video-
tapes, record albums, cassettes, ete. Moreover, all of this
could be achieved by way of an ex parte order without any
notice to company officials.

Similarly, if a nationwide bookstore chain such as
Waldenbooks or B. Dalton should happen to sell two or
more copies of an issue of Playboy or Penthouse that a
local judge might believe to be probably obsec ne, not only
could the state issue an ex parte order closing the entire
store and seizing its assets, but, in all likelihood, it could
close every store in tle chain subject to its jurisdiction.

In another example, this Court in the case of Jenkins
v. Georgia, 418 U.S. 153 (1974), reversed the findings of
a Georgia jury (affirmed by the Georgia Supreme Court)
finding the major studio motion picture ‘‘Carnal Knowl-
edge’’ legally obscene under the Miller*® test for obscenity.
If any prosecutor in any local jurisdiction were able to
similarly convince a judge, ex parte, that there was prob-
able cause that any motion picture produced by a major
Hollywood studio were obscene, he or she would be au-
thorized to padlock and seize the entire assets of busi-
nesses such as Twentieth Century Fox, Universal Studios,
ete., all without any notice to the company.

Similarly, these drastic sanctions would be equally
available if any local judge became convinced that two or
more issues of a newspaper carrying risque editorial car-
toons were probably obscene. In the absence of an adver-
~sary_hearing where the court could be correctly apprised

° Miller v. California, 413 U.S. 15 (1973°

29

of the legal standards for determining obscenity, it is very
likely that such a probable cause finding might be made.

For all the reasons noted above, the dangers to free
expression posed by the Indiana statutory procedures up-
held by the Indiana Supreme Court in this case are per-
haps the greatest ever to come before this Court and re-
quire review by this Court to end this serious threat to
constitutional liberties.

DATED: September 16, 1987

Respectfully submitted,

Jounx H. Westrox*
Davin M. Brown
G. Rawpau. Garrov

Brown, Weston & Sarno
Attorneys for Petitioner

*Counsel of Record
Lee .!. Kuve

Of Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0575%3A02. Public record. Not legal advice.