Amicus Curiae Brief — Fort Wayne Books, Inc. v. Indiana

IN THE

we Supreme Court of the United States

OCTOBER TERM, 1987

—_< @j>__

FORT WAYNE BOOKS, INC.,

Petitioner,

a V oo

STATE OF INDIANA, ef ai/.,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA

MOTION OF THE AMERICAN CIVIL LIBERTIES UNION AND

INDIANA CIVIL LIBERTIES UNION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF

THE AMERICAN CIVIL LIBERTIES UNION AND INDIANA

CIVIL LIBERTIES UNION IN SUPPORT OF PETITIONER

MARVIN E. FRANKEL

(Counsel of Record)

Of Counsel JEFFREY S. TRACHTMAN

JOHN A. POWELL Kramer, Levin, Nessen, Kamin

& Frankel

STEVEN R. SHAPIRO — 919 Third Avenue

American Civil Liberties Union New York. New Yerk 10022

132 W. 43rd Street ctl ng hela

New York, New York 10036 (212) 715-9175

RICHARD A. WAPLES

Indiana Civil Liberties Union

445 N. Pennsylvania St.

Suite 501

Indianapolis, Indiana 46204-1883

Hee es

No. 87-470

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1987

FORT WAYNE BOOKS, INC.,

Petitioner,

Vv.

STATE OF INDIANA, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF INDIANA

MOTION OF THE AMERICAN CIVIL LIBERTIES UNION

AND INDIANA CIVIL LIBERTIES UNION FOR LEAVE

TO FILE BRIEF AMICUS CURIAE

The American Civil Liberties Union

(ACLU) and the Indiana Civil Liberties Union

hereby move for leave to file the attached

brief amicus curiae, pursuant to Rule 36.3 of

the Rules of this Court. The reason for the around the nation have increasingly relied on

motion is that counsel for respondents has RICO-type statutes to seize and suppress P

refused to consent to the filing of an amicus expressive material that is presumptively

brief by the ACLU. entitled to constitutional protection. They

have done so, moreover, without the

The ACLU is a nationwide,

procedural safeguards that would normally

nonpartisan organization with over 250,000

apply in a First Amendment context. By

members dedicated to the principles of

endorsing these initiatives, the decision

individual liberty embodied in-the

below seriously jeopardizes core First

Constitution. The Indiana Civil Liberties

Amendment principles.

Union is one of its statewide affiliates.

Since its founding nearly 70 years ago, the Because the ACLU believes that

ACLU has been especially active in free decision is erroneous, we respectfully move

speech cases. Indeed, the ACLU has parti- for leave to file the attached brief amicus

cipated in literally dozens of free speech

cases before this Court, either as counsel

for one of the litigants or as amicus curiae.

This case raises free speech

concerns of vital importance to the ACLU. In

recent years, law enforcement officials

curiae in order to present the Court with our TABLE OF CONTENTS

views in this important First Amendment case.

Page

Respectfully submitted, TABLE OF AUTHORITIES...........22208. iii

MARVIN E. FRANKEL st, l(a a nw, lt ee 1

(Counsel of Record)

SUMMARY OF ARGUMENT........-2eeccccees 2

JEFFREY S. TRACHTMAN

Kramer, Levin, Nessen, ARGUMENT

Kamin & Frankel

919 Third Avenue Be THE PROTECTIONS OF THE

New York, New York 10022 FIRST AMENDMENT MAY NOT BE

CIRCUMVENTED BY

Of Counsel RE-LABELING OBSCENITY

JOHN A. POWELL <_< ATTACK ON 4

See ie Ee ee

ak ate Union II. THE INDIANA RICO LAW FAILS

New Saat N York 10036 TO EMBODY THE PROCEDURAL

: 7 SAFEGUARDS MANDATED BY

RICHARD A. WAPLES THIS COURT BEFORE SPEECH

MAY BE SUPPRESSED ON THE

Indiana Civil Liberties Union

GROUND THAT IT IS

445 N. Pennsylvania Street UNPROTECTED 17

Suite 501 *“eeseweene e#eeeee#eee#e####* # #

Indianapolis, Indiana 46204-1883 A. he Indiens Law's

May 12, 1988 Seizure Provision

Violates this Court's

Long-Standing,

Unequivocal Rule

Against Mass Seizures

Prior to an Adjudication

of Obscenity........... 19

TABLE OF AUTHORITIES

Page

B. The Indiana RICO Cases: Page

Statute Feils to

Provide A Quantity of Copies of Books v.

Constitutionally Kansas, SPIO Ucle SOO CEPOE dv ccececccce 22-23,

Required Post-Seizure iit

Safeguards, Including

a Prompt Judicial Arcara v. Cloud Books, Inc.,

Resolution of Prior 478 U.S. 697, 106 S. Ct. 3172

Restraint Issues.....-. 28 (1986) ee 10-13,

45-46

III. THE REMEDIES PROVIDED BY

THE INDIANA RICO STATUTE Bantam Books, Inc. v. Sullivan,

OPERATE AS UNCONSTITUTIONAL 372 U.S. 3B (19GSS)eccccccccccscccece 14, 38

PRIOR RESTRAINTS ON

PROTECTED SPEECH............ 38 Californie ex £0. Cooper v-

Mitchell Bros.' Santa Ana Theater,

sa esvccccuueness bcecsseeks 49 Cee Wome OE Lommrretseseseesescesces oF Bas

Carroll v. President & Commissioners

of Princess Anne, 393 U.S. 175

Of) PPP PPP rrrrrrTTrirircrerrrrrrire 23

City of Paducah v. Investment

Entertainment, Inc., 791 F.2d 463

(6th Cir.), cert. denied,

3G7 G. GS. BOOS CEP epecccccccccccecs 42 n.4

4447 Corp. v. Goldsmith, 479 N.E.2d 578

(Ind. Ct. App. 1985), vacated, 504

N.E.2d 559 (Ind. 1987), cert.

granted, 108 S. Ct. 1106

CEO Pec c sees ceeeseseesesesrevcceces se %

ae, Gee

Bl> at

44, 48

“$5 -iii-

Page Pege

Freedman v. Maryland, 380 U.S. 51 Near _v. Minnesota, 283 U.S. 697 a «¢

Sg daedetits as uid dudkekdneness 13, 28-29 & (L9SL) eee eeeccceeccccccecccccccccees . me

n.3, 30-37 =

k v. P.J. Video, Inc., 475

Gayety Theatres, Inc. v. City of Miami, New _Yor t 4

No. 82-1971-Civ-JE (S.D. Fla. U.S. GOS (1L9GG).ccccccccccccsccccccoce 25

Oct. 1, 1982), aff'd, 719 F.2d 1550 :

(11th Cir. 1983} “pry en a tos srw elakes 42 n.4 Sanders v. State, 231 Ga. 608,

43 — BOS Bebe Se BOS CASTE) cccvcceccccescccs 10

General Corp. v. State ex rel. Sweeton, Schad v. Borough of Mount Ephraim,

294 Ala. 657, 320 So. 2d 668 (1975), 452 U.S. 61 (1981) eee eee eee ee eeeeeee 7-8

. i 4 .S.

SF6 ee oS: eri 42 n.4 Smith v. California, 361 U.S. 147

er ee cs ; [RPA SGeeeeeeeeeaeeecoesteceesiccee§ 6&7 &. 8

Hell - N York -S.

sae es — 23-24 Southeastern Promotions, Ltd. v.

SiKee Conrad, 420 U.S. 546 (1975)......... 30, 33,

Kingsley Books, Inc. v. Brown, 34, 42

5 8 Se £) gg per e eee -

wwe UE. See tener) o-) Speiser v. Randall, 357 U.S. 513

m.3.6., Ltd. v. Bedford Township, (1958) a 14, 18

4 pe SOGR CHOPS bss ceceececesce -

we UR. Sous Loree saline Spokane Arcades, Inc. v. Brockett,

Marcus v. Search Warrant, 367 U.S. 651 F.2¢ 135 (9th Cir. 1960),

We UMTs gc dadesucese onkbédedccenes 14-15 ott © Sam-. S56 U.S. 1082

20-23. Pg § SPT TT ee ee eee 10, 29

25-27. n.3, 30

State v. Feld, 155 Ariz. 88

McKi - Al -S. A ‘

ISTE ee 424 U.S. 669 ~~ 745 P.2d 146 (Ct. App. 1987),

PTT TT CLT ePT TT TTT Tee : cert. denied, 99 L. Ed. 2d

National Socialist Party v. PPT TT TTT TT TTT TTT TTT a 42

Village of Skokie, 432 U.S. 43 sa

Oy SRE eg ag eee 30, 35-36 State ex rel. Olson v. Guilford,

174 Minn. 457, 219 N.W. 770

[RO PhCececedoeessesesesecososeceemp 47

-iv- ad

zege No. 87-470

United States v. Pryba, 674 F. Supp. In The

oo ae 15 at

Universal Amusement Co. v. Vance, SUPREME COURT OF THE UNITED STATES

587 F.2d 159 (Sth Cir. 1978),

aff'd on other grounds, 445 U.S. CES TEER, SUC?

308 SS beh un dew Seite oh s aac-ee 42 n.4

Vance v. Universal Amusement Co. FORT WAYNE BOOKS, INC.,

we Welle DU Caps bbcéccacececcecen 9, 31-32,

23, 37, Petitioner,

41-42

Vv.

STATE OF INDIANA, et al.,

Statutes and Other Authorities:

Respondents.

Ind. Code § 34-4-30.5-2 fo) 39

Ind. Code § 34-4-30.5-3(a) (1986)..... 39 ON WRIT OF CERTIORARI TO THE

Ind. Code § 34-4-30.5-4(c) (1986)..... 32 SUPREME COURT OF INDIANA

Note, Pornography, Padlocks, and

Prior Restraints: The Constitutional BRIEF AMICUS CURIAE OF THE AMERICAN

Limits of the Nuisance Power, CIVIL LIBERTIES UNION AND INDIANA CIVIL

58 N.Y.U. L. Rev. 1478 -(1983)....... 8 9 LIBERTIES UNION IN SUPPORT OF PETITIONER

INTERESTS OF AMICI

The interests of amici are set forth

in the motion attached to this brief.

-vi-

SUMMARY OF ARGUMENT

The decision of the Indiana Supreme

Court ignores fifty years of precedent in

refusing to apply First Amendment scrutiny to

the State's attempt to control obscenity

through its RICO law. The State may not

forestall such scrutiny by characterizing the

statute as a speech-neutral anti-racketeering

weapon, since it is the nature of the right

threatened -- rather than the State's choice

of labels -- that determines the character of

constitutional protection.

Measured against First Amendment

standards, the Indiana law is constitutionally

deficient, both procedurally and substan-

tively. The law allows mass seizures of pre-

sumptively protected material based upon a

mere ex parte showing of probable cause to

believe that two obscenity offenses have been

committed -- violating a rule of thirty years'

standing requiring an adversarial adjudication

of obscenity prior to such seizures. In addi-

tion, the statute fails to place the proper

burden upon state officials to institute

prompt post-seizure proceedings, fails to

guarantee a speedy and final adjudication on

the merits, and fails to guarantee that any

prior restraint pending final adjudication and

appeal will be fixed and strictly limited.

The ultimate remedies of the Indiana

RICO law also operate as prior restraints on

protected speech. Upon proving that a book-

store has sold two obscene books, the State

may padlock it, permanently seize its

inventory, revoke its license, and obtain an

order restricting its owner from conducting a

similar enterprise in the future. Like the

injunction barring future publication in Near

v. Minnesota, 283 U.S. 697 (1931), these

x

"punishments" have the direct, immediate, and

unavoidable effect of stifling future pro-

tected speech. For all these reasons, the

Indiana statute must be declared unconsti-

tutional.

ARGUMENT

I.

THE PROTECTIONS OF THE FIRST

AMENDMENT MAY NOT BE CIRCUMVENTED

BY RE-LABELING OBSCENITY REGULATION

AS AN ATTACK ON "RACKETEERING"

Under the Indiana RICO law, a

bookstore may be padlocked, and its entire

inventory seized, if a judge accepts the ex

parte allegation of a police officer that the

establishment has sold or exhibited two or

more obscene items within five years. If

this "pattern of racketeering activity" is

proven at trial, the full array of RICO

remedies -- including forfeiture, license

i et

revocation, and restrictions upon future

activities -- may be imposed upon the

bookstore and any related entities con-

stituting an "enterprise," putting them

completely out of business.

Despite the obvious and severe

impact of these draconian measures upon

speech-related activity, the Indiana Supreme

Court upheld the statute as a speech-neutral

regulation of “racketeering.” Through this

use of the “racketeering” rubric, the Indiana

Supreme Court would permit what this Court

has prohibited for more than half a century:

the circumvention of basic First Amendment

doctrine through semantic devices that

attempt to bring laws restricting free speech

under the mantle of neutral governmental

regulation. This Court and other courts, for

example, have refused to allow state

officials to suppress speech merely by

o§-

dubbing it a "public nuisance." The Court

should similarly reject the notion that

labeling allegedly obscene speech as

"racketeering activity” renders First

Amendment standards inapplicable.

In failing to scrutinize the RICO

law under these standards, the Indiana

Supreme Court ignored this Court's admonition

that "in passing upon constitutional ques-

tions, the court has regard to substance and

not to mere matters of form, and... the

statute must be tested by its operation and

effect." Near v. Minnesota, 283 U.S. 697,

708 (1931). In Near, the Court struck down a

statute declaring the publication of a

"malicious, scandalous, and defamatory”

publication to be a nuisance, and providing

for the permanent injunction of "such

nuisance." Id. at 702-03. Despite

Minnesota's argument that the injunction

=G=

weereas =

entered under the statute was a content-

neutral measure in the nature of a business

regulation, this Court held that the law must

be scrutinized for its impact on future

protected speech. "Characterizing the

publication as a business, and the business

as a nuisance, does not permit an invasion of

the constitutional immunity against

restraint." Id. at 720.

The Court has never departed from

this holding of Near; fifty years later it

declared that "the standard of review is

determined by the nature of the right

assertedly threatened or violated rather than

by the power being exercised or the specific

limitation imposed." Schad v. Borough of

Mount Ephraim, 452 U.S. 61, 68 (1981). In

Schad, the Court reviewed under the First

Amendment a governmental ban on nude dancing

despite the assertion that the regulation was

ae

merely an exercise of state zoning power.

id. It is the effect of state regulation on

speech activity -- and rot Simply its form or

stated purpose -- that determines the degree

of scrutiny to be applied.

State anti-racketeering laws,

modeled on the federal RICO statute, are but

the most recent method adopted by local

officials seeking more effective civil

weapons against alleged obscenity. State and

local governments have used zoning provi-

Sions, building code enforcement, licensing

laws, and, most prominently, nuisance

abatement laws, to augment criminal obscenity

Prosecutions. See Note, Pornography,

Padlocks, and Prior Restraints: The

Constitutional Limits of the Nuisance Power,

98 N.Y.U. L. Rev. 1478, 1478 (1983). Because

such varied means of barring or restricting

expression borrow from doctrines embodying

aie

minimal procedural safeguards, courts have

been careful to scrutinize these laws under

traditional First Amendment standards.

For example, most courts have

rejected attempts to apply so-called "red

light" laws or general public nuisance

abatement statutes to enjoin the distribution

of obscene materials, noting that these

statutes do not reflect modern First

Amendment standards both of substance and

procedure. See cases collected in Note,

Supra, at 1486 & nn. 61-63. Even when states

have amended or enacted statutes expressly to

address obscenity as a "public nuisance, "

courts have not hesitated to demand compli-

ance with First Amendment requirements. See,

e.g., Vance v. Universal Amusement Co., 445

U.S. 308, 317 (1980) (per curiam) (striking

down obscenity injunction for failure to

provide constitutionally adequate proce-

oe

dures); Spokane Arcades, Inc. yv. Brockett,

631 F.2d 135 (9th Cir. 1980) (same), aff'd

mem., 454 U.S. 1022 (1981); Sanders v. State,

231 Ga. 608, 613, 203 S.E.2a4 153, 157 (1974)

(invalidating padlock order as prior

restraint).

The use of RICO-style laws to attack

pornography must be subject to the same

rigorous constitutional review. The fight

against racketeering -- like land use

regulation and the abatement of public

nuisances -- is of course a legitimate sphere

for the exercise of governmental power. But

when the exercise of that power touches areas

of arguably protected expression, the

procedures employed must be Suited to the

delicate sphere of the First Amendment.

The recent decision in Arcara v.

Cloud Books, Inc., 478 U.S. 697, 106 S. Ct.

«800

3172 (1986), supports the application of

First Amendment principles in the present

case. In Arcara, this Court held that

heightened First Amendment scrutiny was not

required for a padlock sanction imposed upon

a bookstore that had permitted prostitution

and other illegal sexual activities on the

premises. The Court expressly distinguished

cases in which the offenses triggering

governmental restrictions themselves involved

speech-related activity, concluding that "the

First Amendment is not implicated by the

enforcement of a public health regulation of

general application against the physical

premises in which respondents happen to sell

books." 106 S. Ct. at 3178. In short,

"(t]he legislation providing the closure

sanction was directed at unlawful conduct

having nothing to do with books or other

expressive activity." Id.

afte

Here, by contrast, Indiana seeks to

apply the short-cut procedures and drastic

remedies of its RICO law not to combat

prostitution or other illegal sexual conduct,

but to suppress allegedly obscene materials.

Following the distinction drawn in Arcara,

both the procedures and remedies of the

Indiana RICO statute must be scrutinized

under the First Amendment. As Justices

O'Connor and Stevens stressed in a separate

concurring opinion in Arcara:

If... a city were to use a nuisance

statute as a pretext for closing down-a

book store because it sold indecent books

or because of the perceived secondary

effects of having a purveyor of such

books in the neighborhood, the case would

clearly implicate First Amendment

concerns and require analysis under the

appropriate First Amendment standard of

review.

Id. (O'Connor, J., concurring).

In the Fort Wayne case, the Indiana

Supreme Court noted that obscene material is

ele

not protected by the First Amendment, and

held that the legislature could therefore

include obscenity as a predicate offense

under the RICO law without triggering any

special scrutiny or heightened procedural

requirements. See 4447 Corp. v. Goldsmith,

504 N.E.2d 559, 564-67 (Ind. 1987). But the

court disregarded the crucial distinction

between regulation of non-expressive conduct,

like the prostitution in Arcara, and

procedures used to regulate and punish

speech. Where the target of state regulation

is expression -- including what may be found

after proper procedures to be unprotected

expression -- First Amendment standards must

be honored in fashioning the procedures. See

Freedman v. Maryland, 380 U.S. 51, 57-59

(1965).

This Court has repeatedly stressed

that "the line between speech unconditionally

=t=

guaranteed and speech which may legitimately

be regulated, suppressed or punished, is

finely drawn. The separation of legitimate

from illegitimate speech calls for...

sensitive tools.” Speiser v. Randall, 357

U.S. 513, 525 (1958) (citations omitted). In

the obscenity context, this concern operates

with particular force. "“[(CJonstitutionally

protected expression . .. is often separated

from obscenity only by a dim and uncertain

line.” Bantam Books, Inc. v. Sullivan, 372

U.S. 58, 66 (1963). “It follows that, under

the Fourteenth Amendment, a State is not free

to adopt whatever procedures it pleases for

dealing with obscenity as here involved

without regard to the possible consequences

for constitutionally protected speech."

Marcus v. Search Warrant, 367 U.S. 717, 731

(1961).

-14-

In Marcus, the Court rejected an

attempt to analogize the seizure of allegedly

obscene books to the seizure of gambling

equipment or other contraband. Because of

the danger of suppressing protected speech,

extra scrutiny and procedural safeguards were

required. Id. at 730-31. This principle

applies to the category of “racketeering”

equally with that of “contraband.”

Lower court decisions scrutinizing

the application to obscenity of state RICO

laws, while differing in their ultimate

holdings, have consistently required that

these statutes pass muster under the First

Amendment. See, e.g., United States v.

Pryba, 674 F. Supp. 1504, 1511-18 (E.D. Va.

1987); State v. Feld, 155 Ariz. 88, 745 P.2d

146, 152-56 (Ct. App. 1987), cert. denied, 99

L. Ed. 2d 482 (1988). By contrast, in the

Fort Wayne case, the Supreme Court of Indiana

=) =

failed even to recognize the First Amendment

issues implicated by the RICO scheme and

treated the Indiana statute purely as an

exercise of the State's power to combat

racketeering. This was obvious error. The

Indiana statute must be scrutinized with

reference to its actual operation and effect

in regulating speech and speech-related

activities.

-16-

2 ete ae

ee er

*

—

A A le a i el a

Il.

THE INDIANA RICO LAW FAILS TO

EMBODY THE PROCEDURAL SAFE-

GUARDS MANDATED BY THIS COURT

BEFORE SPEECH MAY BE SUPPRESSED

ON THE GROUND THAT IT IS UN-

PROTECTED

We demonstrate below that the

remedies provided by the Indiana RICO law

operate as unconstitutional prior restraints

of protected speech. See Point III infra.

But even if they did not -- indeed, even if

every single item suppressed under the

statute turned out to be obscene, and

therefore unprotected -- the statutory scheme

would still have to provide the procedural

safeguards mandated by this Court's First

Amendment cases. The Indiana statute fails

in several respects to satisfy these

standards, and for this independent reason

must be declared unconstitutional.

-17-

Ever since Kingsley Books, Inc. v.

Brown, 354 U.S. 436 (1957), which upheld a

narrowly-drawn injunction against specific

books adjudicated obscene, this Court has

required all injunctive schemes aimed at

alleged obscenity to embody sufficient proce-

dural safeguards against the suppression of

protected speech. Ever mindful of the need

for "sensitive tools" in separating obscene

from non-obscene speech, Speiser v. Randall,

357 U.S. 513, 525 (1958), the Court has

strictly limited circumstances allowing mass

seizures, and has defined procedural require-

ments for actions seeking to enjoin the sale

or exhibition of particular named or unnamed

items.

The Indiana RICO statute authorizes

ex parte seizure and padlocking upon a

showing of probable cause to believe that

violations of the statute have been

-18-

Re ee te le ee a a

committed; shifts the burden of obtaining

judicial review to the defendant; fails to

provide a prompt adversarial hearing on the

question of obscenity; and provides no

safeguard against restraints of indefinite

duration pending appellate review. Each of

these aspects violates the clearly

articulated standards of this Court. There-

fore, regardless of the merits of the

particular post-trial remedies provided by

the Indiana statute, the law is facially

unconstitutional on procedural grounds alone.

A. The Indiana Law's Seizure

Provision Violates this Court's

Long-Standing, Unequivocal Rule

Against Mass Seizures Prior to

an Adjudication of Obscenity

In Kingsley Books, this Court

approved an ex parte injunction against a

particular book, followed by a trial on the

merits within one day, and a decision within

-19-

two days of the close of trial. 354 U.S. at

437 n.1. The Court stressed that the New

York provision “studiously withh[eld]

restraint upon matters not already published

and not yet found to be offensive." Id. at

445. Consistent with Kingsley Books, the

Court has, over the last three decades,

consistently disapproved procedures

permitting the mass seizure of presumptively

protected material prior to an adversary

judicial determination of the obscenity of

the items seized.

In Marcus v. Search Warrant, 367

U.S. 717 (1961), the Court struck down a

scheme, remarkably similar to the one at

issue here, permitting a judge to issue an ex

parte warrant commanding seizure of all

allegedly obscene material upon a finding of

probable cause to believe that an obscenity

violation had been committed. A hearing to

-20-

——~ Pe

determine the obscenity of the seized

material had to be set between five and

twenty days after the seizure, but no time

limit was provided for a decision. See id.

at 718-21.

The Court invalidated these

procedures on grounds directly applicable to

the present case. Chief among the statute's

infirmities was that "the warrants issued on

the strength of the conclusory assertions of

a single police officer, without any scrutiny

by the judge of any materials considered by

the complainant to be obscene." Id. at 731-

32. The Court pointedly distinguished

between the carefully limited injunction

approved in Kingsley Books and "a scheme

which in operation inhibited the circulation

of publications indiscriminately because of

the absence of any such safeguards." Id. at

734-35 .

e2i-

The Court further held that the

provision for an accelerated obscenity

hearing was inadequate because the statute

did not guarantee a speedy decision. The

Court noted with disapproval that two months

had elapsed between seizure and decision --

unacceptable for a mass seizure. Id. at 737-

38. "Kingsley Books does not support the

proposition that the State may impose the

extensive restraints imposed here on the

distribution of these publications prior to

an adversary proceeding on the issue of

obscenity, irrespective of whether or not the

material is legally obscene.” Id. at 735-36.

The Court has reaffirmed and

expanded this holding in subsequent cases.

In A Quantity of Copies of Books v. Kansas,

378 U.S. 205 (1964), a plurality of the Court

invalidated a seizure "strikingly similar" to

the one in Marcus. Id. at 209. Justice

o22-

ot lak tnt.

Brennan's opinion held that the seizure order

was not saved by provision of a full post-

seizure adversary hearing on the question of

obscenity. "For if seizure of books precedes

an adversary determination of their

obscenity, there is danger of abridgement of

the right of the public in a free society to

unobstructed circulation of non-obscene

books." Id. at 213. In Carroll v. President

& Commissioners of Princess Anne, 393 U.S.

175 (1968), the Court indicated that Marcus

and Quantity of Books stand for a general

presumption, applicable beyond the obscenity

setting, against prior restraints issued

without notice and an opportunity to be heard

in an adversary proceeding. Id. at 181-82.

Heller v. New York, 413 U.S. 483

(1973), underscored the distinction between

the Marcus line of cases and the specific,

narrowly drawn injunctive relief approved in

o23-

Kingsley Books. In Heller, the Court upheld

the seizure of one copy of a single film for

the limited purpose of preserving it as

evidence. The Court noted that no restraint

of any kind had been placed upon continued

exhibition of the film or any other

materials, and that the defendant had never

sought expedited judicial consideration of

either obscenity or the validity of the

seizure. Id. at 490. The Court expressly

distinguished cases concerning "the seizure

of large quantities of books for the sole

purpose of their destruction," and assured

that "“[c]Jourts will scrutinize any large-

scale seizure of books, films, or other

materials presumptively protected under the

First Amendment to be certain that the

requirements of A Quantity of Books and

Marcus are fully met.” Id. at 491 (emphasis

added).

o24-

:

:

:

}

;

:

;

The vitality of the Marcus-Quantity

of Books rule was recently reaffirmed in New

York v. P.J. Video, Inc., 475 U.S. 868

(1986), in which the Court recognized again

the requirement that "the large-scale seizure

of books or films constituting a 'prior

restraint’ must be ssccetet by an adversary

hearing on the question of obscenity." Id.

at 873.

The Indiana RICO statute, by

authorizing mass, ex parte seizures and

padlocking of the premises prior to any

judicial determination of obscenity, violates

this Court's long-settled rule. The Indiana

Court of Appeals examined this point at

length, concluding that a procedure

permitting "en masse seizure" of inventory

based upon "ex parte determinations only as

to the probability of obscenity violations,

with no regard to the obscenity of all seized

-25-

materials,” and based "exclusively upon

conclusory assertions and descriptions by

police of alleged obscenity,” was unconstitu-

tional under Marcus and Quantity of Books.

4447 Corp. v. Goldsmith, 479 N.E.2d 578, 595-

96 (Ind. Ct. App. 1985). The Indiana Supreme

Court failed even to mention Marcus or the

question of mass, ex parte seizures,

discussing only the post-seizure procedural

requirements addressed below in Point II(B).

The constitutional violation recognized by

the Court of Appeals remains obvious and

irrefutable.1/

The unspoken rationale for the

Indiana court's disregard of Marcus and its

progeny may be its view of the Indiana RICO

1/ Before authorizing mass seizure of

printed materials, the trial court should

also have required obscenity to be demon-

strated by clear and convincing evidence.

See California ex rel. Cooper v. Mitchell

Bros.’ Santa Ana Theater, 454 U.S. 90, 92-

94 (1981).

o26-

7

statute as a speech-neutral anti-racketeering

weapon. If purveying obscene materials is

seen merely as a variety of "racketeering

activity," then the issuance of a warrant

permitting mass seizures of property need

only be justified by minimal due process

standards. But as noted above in Point I,

merely re-labeling an obscenity regulation as

an anti-racketering measure does not obviate

First Amendment requirements. The need for

"sensitive tools" to separate protected from

unprotected speech bars Indiana from treating

presumptively protected printed materials as

it treats narcotics, gambling paraphernalia,

or other contraband. See Quantity of Books,

378 U.S. at 211-12; Marcus, 367 U.S. at 730-

31.2/

2/ Cf. Smith v. California, 361 U.S. 147,

~ 152-53 (1959) (requiring scienter for

obscenity prosecution): "There is no

specific constitutional inhibition against

making the distributors of food the

strictest censors of their merchandise, but

(footnote continued )

-27-

B. The Indiana RICO Statute Fails

te Provide Constitutionally

Required Post-Seizure Safe-

guards, Including a Prompt

Judicial Resolution of Prior

Restraint Issues

In addition to the absolute ban on

ex parte mass seizures, this Court has

established minimum procedural requirements

governing injunctions against specific,

allegedly obscene items. Both the interim

injunctions and the permanent remedies

provided by the Indiana RICO statute violate

these standards.

In Freedman v. Maryland, 380 U.S. 51

(1965), the Court invalidated a Maryland

prior review system allowing largely

unfettered administrative discretion to ban

films, setting no time limits for the review

the constitutional guaranties of freedom of

speech and of the press stand in the way of

imposing a similar requirement on the

bookseller."

o28e

a i ll ee ey, nD

procedure, and prohibiting the showing of

banned films unless the exhibitor undertook

an appeal to the Maryland courts. Id. at 54-

55. In striking down this scheme as a prior

restraint, the Court established three

procedural requirements, further refined and

amplified by subsequent cases, that must be

met by any state seeking to enjoin the

display or dissemination of allegedly obscene

material .>/

First, Freedman held that “the

burden of proving that the film is

unprotected expression must rest on the

380 U.S. at 58. Subsequent cases

censor."

3/ Although Freedman addressed only film

censorship, subsequent cases dealing with

printed materials have Begg its = more

eneral application. e.g. nney

: 669 ES (19787;

v. Alabama, 424 U.S. Spokane

Arcades, Inc. v. Brockett, 631 F.

138 (9th Cir. 1980), aff'd mem., 454 U. S.

1022 (1981).

-29-

_

have made clear that the state also has the

burden of instituting prompt judicial

review. See Southeastern Promotions, Ltd. v.

Township, 463 U.S. 1341, 1343 (1983)

Conrad, 420 U.S. 546, 562 (1975); Spokane

Arcades, Inc. v. Brockett, 631 F.2d 135, 138

(9th Cir. 1980), aff'd mem., 454 U.S. 1022

(1981).

Second, Freedman required that a

prompt, final, adversary adjudication on the

issue of obscenity be assured “by statute or

authoritative judicial construction." 380

U.S. at 58-59. In National Socialist Party

v. Village of Skokie, 432 U.S. 43 (1977) (per

curiam) ("Skokie"), the Court extended the

"strict procedural safeguards" of Freedman to

the appellate process, holding that an

injunction restraining First Amendment

activity must be accorded "immediate

appellate review" or stayed pending appeal.

Id. at 44. See also M.I.C., Ltd. v. Bedford

-30-

(Brennan, Circuit Justice) (requirement of

""'prompt final judicial decision,'" quoting

Freedman, 380 U.S. at 59, required stay of

preliminary obscenity injunction pending

appeal where appellate review "will not be

completed for several months").

Third, Freedman required that any

restraint prior to judicial review must be

“limited to preservation of the status quo

for the shortest fixed period compatible with

sound judicial resolution." 380 U.S. at

59. The Court elaborated on this requirement

in Vance v. Universal Amusement Co., 445 U.S.

308 (1980) (per curiam), in which it struck

down a nuisance abatement statute permitting

“prior restraints of indefinite duration on

the exhibition of motion pictures that have

not been finally adjudicated to be obscene."

Id. at 316. The Court held that "the absence

@3ie<

of any special safeguards governing the entry

and review of orders restraining the exhibi-

tion of named or unnamed motion pictures”

violated Freedman and rendered the statute

unconstitutional. Id. at 317.

The Indiana RICO statute is

constitutionally infirm under these cases for

several reasons. The statute places no

burden upon the state to bring about prompt

judicial review of either the validity of the

seizure or the obscenity of the seized

materials. Having obtained, on an ex parte,

probable cause showing, «on order authorizing

seizure of all inventory and padlocking of

the premises, the prosecuting attorney has no

further burden except to commence an action

for permanent forfeiture within 180 days.

See Ind. Code § 34-4-30.5-4(c) (1986). The

burden is entirely upon the defendant to

bring about judicial review of the initial

-32-

a

seizure and prompt judicial determination of

obscenity.

The Indiana Supreme Court did not

expressly address this issue, apparently

assuming that it was acceptable to put the

burden upon a defendant to “initiate such

action by the filing of a motion to vacate

the seizure order.” 4447 Corp. v. Goldsmith,

504 N.E.2d 559, 567 (Ind. 1987). Since

neither the statute nor Indiana's highest

court have properly placed the burden upon

the State, the statute is unconstitutional

under Freedman and Southeastern Promotions.

Even where, as here, a defendant

assumes the burden of initiating judicial

proceedings to challenge a seizure, the

Indiana RICO statute fails to provide “a

prompt final judicial decision" or to limit

the prior restraint pending that decision to

-33<

"the shortest fixed period compatible with

sound judicial resolution.” Freedman, 380

U.S. at 59. As demonstrated in Petitioner's

Brief, although petitioner moved vigorously

for reconsideration and review of the

padlocking and mass seizure ordered by the

trial court, all three of its bookstores

remained sealed and padlocked for a full

year, until the Indiana Court of Appeals

finally granted a stay pending appeal. This

Court disapproved far shorter delays in

Southeastern Promotions, 420 U.S. at 562

(five months), and Freedman, 380 U.S. at 55

(six months).

The protracted process in this case

was permitted by a statute that sets no time

limits upon either the adjudication of

obscenity or the appellate review of prior

restraints. The Indiana Supreme Court upheld

the statute because of its assumption that,

-34-

a

absent petitioner's interlocutory appeals, "a

full adversarial hearing on the merits of the

forfeiture action" would have been held

"within a reasonable time." 504 N.E.2d at

567. The court gave no indication as to what

it would consider to be "a reasonable time,"

but the statute itself requires only that a

forfeiture action be commenced within 180

days of a seizure; it sets no time limit of

any kind for a trial on the merits.

In any event, the padlocking of

petitioner's bookstores for a full year

pending judicial resolution of the validity

of the ex parte seizure order itself violates

Freedman, Vance, and Skokie by failing to

place a strict limitation on temporary prior

restraint of materials presumptively pro-

tected by the First Amendment. Petitioner's

choice to pursue an interlocutory appeal

rather than proceeding to trial on the merits

x =

cannot vitiate the guaranties of Freedman and

its progeny; what is guaranteed is not merely

a trial on the merits on obscenity, but

prompt resolution of the broader question of

whether the State has imposed an unconsti-

tutional prior restraint. See Skokie, 432

U.S. at 44.

Finally, even if the procedures

governing pretrial seizure and padlocking

complied with the mandates of Freedman, the

ultimate remedies permitted under the Indiana

law would not. Having proven only that two

pieces of obscene material were sold or

exhibited -- sufficient predicate

"racketeering activity" to trigger the

statute's remedies -- the State may obtain

forfeiture of all material and bar future

dissemination of material not yet even in

defendant's possession.

xe

A Ct A I a

These remedies attempt an end-run

around Freedman and Vance. No burden is

placed upon the State to justify the

suppression of future materials, because no

showing of any kind is required; upon proof

of two violations, all subsequent speech may

be barred and all materials forfeited. No

adversary judicial determination of the

obscenity of these items -- prompt or other-

wise -- is ever required. And the prior

restraint on future speech, far from being

for a minimal “fixed period," is indefinite,

indeed possibly permanent. For this

additional reason, the Court of Appeals

correctly held that the statute was

unconstitutional as applied to obscenity.

479 N.E.2d at 596-97.

In short, Indiana's RICO law

embodies none of the special procedural

safeguards required for the delicate task of

oS37<

separating protected from unprotected

speech. Applying RICO to alleged obscenity

unleashes a howitzer where the precision of a

scalpel is needed. The blunderbuss

procedures of the Indiana law pose a threat

to protected speech and should therefore be |

declared unconstitutional.

IIl.

THE REMEDIES PROVIDED BY THE

INDIANA RICO STATUTE OPERATE AS

UNCONSTITUTIONAL PRIOR RESTRAINTS

ON PROTECTED SPEECH

The Indiana RICO statute permits the

suppression of vast quantities of materials

never adjudicated obscene, and therefore

amounts to a prior restraint of protected

speech. "Any system of prior restraints of

expression comes to this Court bearing a

heavy presumption against its constitutional

validity." Bantam Books, Inc. v. Sullivan,

372 U.S. 58, 70 (1963).

=~ *

Under the Indiana RICO statute, upon

finding by a preponderance of the evidence

that a defendant has engaged in a “pattern of

racketeering activity” -- i.e., selling or

exhibiting two obscene items within five

years -- a court may order, inter alia,

dissolution of the enterprise, suspension or

revocation of any licenses or permits, and

forfeiture of the corporate charter, and may

prohibit defendant from engaging in similar

activity in the future. See Ind. Code § 34-

4-30.5-2 (1986). Additionally, the county

prosecuting attorney “may bring an action for

the forfeiture of any property used in the

course of, intended for use in the course of,

derived from, or realized through, conduct in

violation of IC 35-45-6-2." Ind. Code § 34-

4-30.5-3(a) (1986). See 4447 Corp. v.

Goldsmith, 504 N.E.2d 559, 561 (Ind. 1987).

-39-

The operation and effect of these

provisions is to permit state officials --

upon demonstrating that two or more books,

video tapes, or other items ultimately found

to be obscene have at any time within a five

year period been sold or exhibited by a

bookstore, video outlet, drug store, or other

establishment -- to run the defendant and all

other entities constituting the "enterprise"

-permanently out of business. The impact of

these remedies goes far beyond the one-year

padlocking provided by most nuisance abate-

ment laws. On the face of the statute, a

finding that a bookstore sold two copies of a

single book or magazine ultimately found to

be obscene would apparently justify an order

forfeiting all property used in conducting

the “enterprise” and barring the store's

Owner not only from continuing operation at

the present site, but from operating a

bookstore anywhere in the jurisdiction.

-40-

Whatever the validity of these

extraordinary penalties when used to attack

drug dealing, illegal gambling, or extortion,

they are plainly inappropriate in a First

Amendment context, and cannot be used to

close an entire bookstore based on a mere

finding that two books are obscene. Any such

remedy violates the presumption against prior

restraints, regardless of what procedural

safeguards are employed in adjudicating the

predicate offenses.

As this Court observed in Vance v.

Universal Amusement Co., 445 U.S. 308 (1980)

(per curiam), “the burden of supporting an

injunction against a future exhibition is

even heavier than the burden of justifying

the imposition of a criminal sanction for a

past communication” because "'a free society

prefers to punish the few who abuse rights of

speech after they break the law than to

-41-

throttle them and all others beforehand.”

id. at 315-16 & n.13 (quoting Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. 546, 559

(1975) (emphasis in original)).

Applying this well-settled

principle, the overwhelming majority of lower

court decisions addressing padlocking,

license revocation, or forfeiture as a

sanction for obscenity have found these

remedies to be unconstitutional prior

restraints.4/ As the Eleventh Circuit

4/ See, e.g., City of Paducah v. Investment

Entertainment, Inc., 791 F.2d 463, 469-70

(6th Cir.) (license revocation), cert.

denied, 107 S. Ct. 316 (1986); Gayet

Theatres, Inc. v. City of Miami, a5 F.2d

1550, 1550 (llth Cir. 1983) (per curiam)

(license revocation); Universal Amusement

Co. v. Vance, 587 F.2d 159, 164-66 (5th

Cir. 1978) (en banc) (padlocking), aff'd on

other grounds, 445 U.S. 308 (1980); General

Corp. v. State ex rel. Sweeton, 294 Ala.

657, 666, 320 So. 2d 668, 676 (1975)

(padlocking), cert. denied, 425 U.S. 904

(1976); State v. Feld, 155 Ariz. 88, 745

P.2d 146, 154 (Ct. App. 1987) (RICO

(footnote continued )

-42-

concluded in holding unconstitutional a one-

year license revocation based on a single

obscenity finding, "'[Tjhe City can no more

impose such a prior restraint on the

plaintiff than could it by ordinance restrain

a citizen from speaking in public for one

year because the citizen once uttered an

obscenity in a public place.'" Gayety

Theatres, Inc. v. City of Miami, 719 F.2d

-1550, 1552 (llth Cir. 1983) (per curiam)

(quoting District Court opinion No. 82-1971-

Civ-JE, slip op. at 2-3 (S.D. Fla. Oct. l,

1982)). The open-ended remedies authorized

by the Indiana RICO statute go even further

in restraining future, presumptively

protected speech.

The Indiana Supreme Court neverthe-

less upheld the application of this statutory

forfeiture provisions), cert. denied, 99 L.

Ed. 2d 482 (1988).

-43-

scheme to obscenity, holding that the state's

anti-racketeering purpose rendered irrelevant

the statute's impact in a particular case.

"The remedy of forfeiture is intended not to

restrain the future distribution of

presumptively protected speech but rather to

disgorge assets acquired through racketeering

activity.” 504 N.E.2d at 565.

But as demonstrated above in Point

I, whatever the purpose of the RICO statute,

its harsh remedies must be measured for their

effect upon protected speech. The remedies

provided in the Indiana statute sweep too

broadly, and have too drastic and immediate

an effect upon presumptively protected

speech, to be regarded simply as content-

neutral punishments for racketeering activity

-- particularly in light of the dim and

uncertain line between the prohibited

predicate conduct and the far wider range of

-~44-

protected materials inevitably restrained

under the statutory scheme.

The Indiana RICO law goes consider-

ably beyond the padlock sanction upheld in

Arcara v. Cloud Books, Inc., 478 U.S. 697,

106 S. Ct. 3172 (1986). There, the one-year

closure of a bookstore as punishment for

permitting prostitution and other sexual

misconduct on the premises was held not to be

a prior restraint for two reasons:

First, the order would impose no

restraint at all on the dissemination of

particular materials, since respondent is

free to carry on his bookselling business

at another location, even if such loca-

tions are difficult to find. Second, the

closure order sought would not be imposed

on the basis of advance determination

that the distribution of particular

materials is prohibited -- indeed, the

imposition of the closure order has

nothing to do with any expressive conduct

at all.

106 S. Ct. at 3177 n.2.

-45-

Here, by contrast, the bookseller

does not suffer a finite punishment that

permits him to carry on his activities else-

where; instead, he may have his entire

inventory seized and forfeited, his license

revoked, and his ability to engage in similar

activity curtailed or barred by court

order. The sanctions relate precisely to

“expressive conduct” -- sweeping large

quantities of protected expression into a

wholesale ban triggered by a couple of

properly suppressible items. Moreover, the

offense that may bring about the destruction

of the bookseller's business is not clearly

defined illegal conduct like prostitution or

public sexual activity, but the amorphous

possibility that a jury may ultimately find

two books, magazines, or movies to be

obscene. The chilling effect in these

circumstances is exponentially greater than

in Arcara.

-46-

The harsh remedies of the Indiana

RICO law more closely resemble the restraint

authorized by the nuisance statute struck

down in Near v. Minnesota, 283 U.S. 697

(1931). The state in Near sought to justify

an injunction against future publication of a

scandalous newspaper as a simple punishment

for past, unprotected speech. This Court, in

an opinion by Chief Justice Hughes, rejected

that construction:

The object of the statute is not

punishment in the ordinary sense, but

suppression of the offending newspaper or

periodical. The reason for the enact-

ment, as the state court has said, is

that prosecutions to enforce penal

statutes for libel do not result in

“efficient repression or suppression of

the evils of scandal.” Describing the

business of publication as a public

nuisance, does not obscure the substance

of the proceeding which the statute

authorizes.

Id. at 711 (quoting State ex rel. Olson v.

Guilford, 174 Minn. 457, 462, 219 N.W. 770,

772 (1928)).

-47-

The Supreme Court of Indiana

Similarly sought to justify the restraints

imposed by Indiana's RICO law as a necessary

new weapon to root out organized crime. 504

N.E.2d at 565. As it did in Near, the Court

should look beyond the State's characteriza-

tion anc strike down the Indiana law as an

unconstitutional prior restraint.

-48-

CONCLUSION

The judgment of the Supreme Court of

Indiana should be reversed.

Respectfully submitted,

MARVIN E. FRANKEL

(Counsel of Record)

JEFFREY S. TRACHTMAN

Kramer, Levin, Nessen,

e Kamin & Frankel

919 Third Avenue

New York, New York 10022

Of Counsel

JOHN A. POWELL

STEVEN R. SHAPIRO

American Civil Liberties Union

132 W. 43rd Street

New York, New York 10036

RICHARD A. WAPLES

Indiana Civil Liberties Union

445 N. Pennsylvania Street

Suite 501

Indianapolis, Indiana 46204-1883

May 12, 1988

-49-