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

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Nos. 87-470 and 87-614

In The

Supreme Court of the United States

October Term, 1987

No. 87-470

FORT WAYNE BOOKS, INC.,

Petitioner,

vs.

STATE OF INDIANA, et al.,

Respondents.

No. 87-614 _

RONALD W. SAPPENFIELD,

FANTASY ONE, INC., and

FANTASY TWO, INC.,

Petitioners, a2

vs.

STATE OF INDIANA,

Respondent.

ON PETITIONS FOR WRITS OF CERTIORARI TO

THE SUPREME COURT AND COURT OF APPEALS

OF THE STATE OF INDIANA

BRIEF AMICUS CURIAE OF TOM COLLINS, AS

COUNTY ATTORNEY FOR THE COUNTY OF MARICOPA,

STATE OF ARIZONA, IN SUPPORT OF RESPONDENTS

BENJAMIN W. BULL

2845 E. Camelback Road

Suite 740

Phoenix, Arizona 85016

(602) 381-1322

Counsel of Record

For Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............. ii

INTEREST OF THE AMICUS CURIAE.... 1

SUMMARY OF ARGUMENT............-- 3

LAW AND ARGUMENT

I. THE USE OF RICO WITH

SUPFORTED-BY- THE PURPOSE

OF RICO AND PASSES MUSTER

UNDER THE U.S. CONSTITUTION... 4

A. The purpose of RICO

is not to restrain

rotected speech. An

F act on speech is

incidental to Law-

ful non-speech related

enforcement activities.. 8

B. First Amendment inter-

ests are adequately pro-

tecte x orcing the

osecution to prove

pr :

the pre cate otfrense

of obscenity before de-~-

endants can be convicted

of racketeering.......... 21

CONCLUSION... ... cece cece eecenees 22

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page

Cases:

Airport Bookstore, Inc. v.

Jackson, 748 S.E.2d 623

78), cert. denied

aadne nom. Gateway Books

Vv. Jackson, 441 U.S. 952

es ccc cccce 15

Arcara Az Cloud Books,

, 106 S.Ct. 3172

ort.ra. 2d 565. DEED bccccceces 10,11

Art Theatre Guild, Inc. v. Ewing,

421 U.S. 923 (1975) -PPererrrTTe 16

Avenue Book Store v. Cit

~ Tallmadge Um. 459 U. aa

393 (1982)..... 17

Barrago v. City of Louisville,

456 F.Supp. sey (W.D.RKy. 1978)... 15

Commonwealth v. Croatan Books,

a. 1984)....... 15

Cox v. Louisiana,

EE Te ll

Dumas v. City of Dallas,

648 F.Supp. 1061 (N.D.Tex

9 DPE PPM EO MEER S Cece cceccceccces 15

Ford v. State, 394 N.E.2d 250

ENE BOOED cocccccccccccccs 21

-ii-

TABLE OF AUTHORITIES (Continued)

Page

Cases:

4447 Cor v. Goldsmith,

504 N. f 2d 559 (ind. 1987) ‘eae 13,22

giponey Vv. Te ao. SOT eee & Ice

pom PD etebeacseseosedooecese ll

Hart Bookstores v. Eemisters

t 79),

cert. ‘denied, 447 U. S.

925 (1580) Tee dsecasdeccooecce 14

Northend Cinema Inc. v. Seattle,

cert. denied sub. nom

106 Forsyth Corp. v. Bishop.

L482 F. 3 280 ceth Cir. 1973)

cert. denied, 422 U.S.

BOOS COPTER csc cccccccscccccccce 19,21

Roth v. United States,

ete See de 6 7

Russello v. United States,

Labbe beceeene 21

Sede tbaver v. State, 428 N.E.2d

cert. denied,

455 U.S. "1035 (1982) [aewanees oe 16

State ex rel. Ewing v. "Without

a Stitch”, 307 N.E.od SIL

| i Cn a <t6¢ndkensedwhe dees 16

-iii-

TABLE OF AUTHORITIES (Continued)

Page

Cases:

State v. Feld, 745 P.2d 146

(Ariz.App. 1987) cert.

denied U.S. 1988.... 1

State, ex rel. Kidwell v. U.S.

Marketing, Inc., 631 P.2d

622, 25 VA 4th 381 (Id. 1983),

jurisdiction noted 454 U.S.

1140, 71 L.Ed.2d 291, 102

S.Ct. 996, appeal dismissed

455 U.S. 1009, 71 L.Ed.2d

878, 102 S.Ct. 1649............ 16

U.S. Marketing v. Lero

524 F.Supp. 1277 WD -Tdaho

| Pre rTrTrerrerrerrerrere 17

United States v. Powers,

.5. 214 reh’g denied

308 U.S. 631 (1939).......220es 19

United States v. Turkette,

Pocscccsccees 9

West Gallery Corporation v. Salt

Lake City Board of

Commissioners, 586 P.2d 429

ok cece uekees 15

-iv-

TABLE OF AUTHORITIES (Continued)

Page

Statutes:

A.R.S. § 13-2301... .. cece cecceee 1

Other:

California Attorney General's

1987 Report on Organized

a 4,5

U.S. Dept. of Justice, The

Attorney General's Commission

on Pornography Final

INTEREST OF THE AMICUS CURIAE

Your amicus curiae is the

Honorable Tom Collins, duly elected

County Attorney for Maricopa County,

Arizona. He is the chief § law

enforcement officer of the county, with

criminal prosecution authority over

felonies and misdemeanors. He also

represents the county in all civil

matters.

Arizona's organized crime and

fraud statutes (RICO), A.R.S. iS

13-2301, et. seg., as applied to

obscenity offenses, was partially

invalidated by the Arizona Court of

Appeals in State v. Feld, 745 P.2d

146 (Ariz.App. 1987) cert. denied,

U.S. 1988. Feld is

presently pending in the Arizona

Superior Court for further proceedings

under remaining obscenity and_ RICO

indictments. The trial court, whose

invalidation the Arizona Court of

Appeals upheld, retains jurisdiction.

The Indiana RICO statute before

this Court is substantially similar to

the Arizona statute partially

invalidated in Feld. If this Court

holds that the Indiana RICO statute is

constitutional (as it should), the

Arizona courts retain jurisdiction over

Feld to reconsider its federal

constitutional ruling invalidating the

Arizona statute.

II.

III.

SUMMARY OF ARGUMENT

The Use Of RICO With Obscenity

Offenses Is Supported By The Pur-

pose of RICO And Passes Muster

Under The United States

Constitution.

The Purpose Of RICO Is Not To

Restrain Protected Speech. Any

Impact On Speech Is Incidental To

Lawful Non-speech Related

Enforcement.

First Amendment Interests Are

Adequately Protected By Forcing

The Prosecution To Prove The

Predicate Offense Of Obscenity

Before Defendants Can Be Convicted

of Racketeering.

LAW AND ARGUMENT

I. THE USE OF RICO WITH OBSCENITY

OFFENSES IS SUPPORTED BY THE

PURPOSE OF RICO AND PASSES MUSTER

UNDER THE U.S. CONSTITUTION.

Congress and various state

legislatures have added obscenity to

their RICO statutes in order to fulfill

the goals of RICO -- fighting organized

crime -- not as a device to suppress

protected material or to chill

protected speech. }

Several reports, including’ the

California Attorney General's 1987

i CONG.REC. § 433-458 (daily

edition, Jan. 30, 1984) (statement of

Sen. Helms). Senator Helms, in

introducing the amendment that added

“dealing in obscene matter” to the

federal RICO statute, put into. the

record material showing the profits

organized crime gains from the sale of

illegal obscenity, and reiterated that

RICO was intended to provide "a means

of dealing with organized crime."

Id. at § 433.

Report on Organized Crime in California

and the Final Report of the Attorney

General's Commission on Pornography,

have concluded that organized crime is

behind most of the production = and

distribution of illegal, obscene

pornography. The California report

estimated that nationwide revenues from

pornography range from $7 billion to

$10 billion annually, “and organized

crime is believed to be connected to

most of this money." Attorney

General's Report on Organized Crime in

California at 7 (1987). It also

concluded’ that "pornography was a

lucrative part of organized crime

operations” in California in 1986.

Id. The Attorney General's

Commission on Pornography endorsed the

FBI's 1978 findings that ". . .

Oe NE el Seer ts CORE

organized crime involvement in

pornography . . . is indeed

significant, and there is an obvious

national control directly, and

indirectly, by organized crime figures

of that industry in the United States.

Few pornographers can operate in the

United States independently without

some involvement with organized crime.

The huge profits gathered by organized

crime in this area and redirected to

other lucrative forms of crime, such as

narcotics and investment in legitimate

business enterprises, are certainly

cause for national concern . . ."

Final Report of the Attorney General's

Commission on Pornography, at 1071.

These conclusions were important

factors in the decisions of Congress

and the various states to amend their

A Se te

a

RICO statutes by including obscenity as

a predicate offense.

Indeed, this Court has recognized

that the purpose of the federal RICO

statute is “to provide new weapons of

unprecedented scope for an assault upon

organized crime and its economic

roots." Russello v. United States,

464 U.S. 16, 26 (1983). Its provisions

are to be construed liberally to bring

about its remedial purposes. United

States Vv. Turkette, 452 U.S. 576

(1981). One of the most important of

those remedies is the forfeiture of

assets. Russello, supra. To

effectuate this same purpose, the

Indiana RICO statute should be

liberally construed to accomplish its

remedial intent.

A. The purpose of RICO is

not to restrain rotected

speech. Any impact on speech

s Thcldental to fental

non-speech related enforce-

ment activities.

The use of RICO statutes in

obscenity proceedings does not

unconstitutionally restrain speech.

Defendants may continue to sell or

exhibit non-obscene material as long as

they do not use the proceeds,

instrumentalities, or property of past

criminal activities.

The reasoning of Petitioners in

the instant case, put into practice,

would lead to absurd results. Under

those arguments if a premises is used

to sell narcotics or forged documents,

but also sells magazines, that property

is immune from forfeiture and_ the

“enterprise” cannot be dissolved.

Racketeers could simply enter’ the

magazine business to avoid RICO

forfeitures.

The record herein makes clear that

Indiana's purpose is not to use RICO to

restrain future expressive activities,

but seeks the dissolution of an

"enterprise" or forfeiture of property

because of past criminal conduct. The

penalties are imposed for reasons

unrelated to the suppression of speech.

Obviously, some inconvenience to

speech is caused by all criminal laws,

including RICO. In every case where a

person is imprisoned for disizributing

obscenity, the imprisonment limits that

criminal's ability to distribute

communicative material, as two justices

of this Court noted in Vance _ vy.

Universal Amusement Co., 445 U.S. 308,

at 320, 324 (1980) (Justices White and

Rehnquist). See also Arcara_ vy.

Cloud Books, U.S. , 106 S.Ct.

3172, 92 L.Ed.2d 568, 577 (1986) (". .

»- every civil and criminal remedy

imposes some conceivable burden on

First Amendment protected activities.")

But under Petitioners’ reasoning, a

person could engage in the RICO

predicate offenses of prostitution,

restraint of trade, or trafficking in

stolen property at a commercial

establishment which also sells

paperback novels, and this would

immunize the establishment from

forfeiture. This would obviously

provide a loophole for organized crime

to avoid the intended impact of RICO

and defeats the purpose of the statute.

This Court has repeatedly

recognized that it does not abridge

freedom of speech to make a course of

conduct -- in this case racketeering --

illegal, even though the conduct is in

some respect carried out by means of

expression. Cox v. Louisiana, 379

U.S. 559, at 563 (1966) (". . . it has

never been deemed an abridgment of

freedom of speech or press to make a

course of conduct illegal merely

because the conduct was in part

initiated, evidenced, or carried out by

means of language, either spoken,

written or printed." Quoting Giboney

v. Empire Storage & Ice Co., 336 U.S.

490 at 502, 93 L.Ed. 834 at 843-44

(1949)).

Arcara v. Cloud Books, supra,

is squarely on all fours. There, this

Court upheld the closure of a

pornography bookstore that was also

-11l-

used as a place of prostitution. Like

the Indiana RICO statute, the nuisance

abatement legislation in Arcara was

concerned with unlawful conduct and

only incidentally related to

expression. This decision is directly

on point: "Bookselling in an

establishment used for prostitution

does not confer First Amendment

coverage to defeat a valid statute

aimed at penalizing and terminating

illegal use of premises." 92 L.Ed.2d

at 578. So long as there is no “speech

suppressive motivation or policy”

shown in the enforcement of the RICO

statute it is constitutional. 92

L.Ed.2d at 578 N.4 (emphasis added).

The Indiana RICO statute is applicable

to all enterprises or property used

in racketeering activity -- not just

obscenity.

The Indiana Supreme Court

recognized this stating that “the

purpose of the forfeiture provision is

totally unrelated to the nature of the

assets in question.” 4447 Corp. v.

Goldsmith, 504 N.E.2d 559, 565 (Ind.

1987). The remedies provided in RICO

“are a legitimate tool in the attack on

racketeering activity." Id. To find

otherwise would allow persons to thwart

the law by effectively shielding their

enterprise "behind a pseudo-

constitutional barrier.” Id.

Because RICO is an attempt to compel

forfeiture of property used in

racketeering activity and “not to

restrain the future distribution of

expressive materials” the Court held

that RICO, as it pertains to the

"predicate offense of obscenity" does

"not violate" the First Amendment.

Id.

Where the purpose of a statute is

unrelated to the suppression of speech,

as with RICO, there are many

circumstances which permit closure of

businesses engaged in expressive

activity. Closure of nonconforming

adult bookstores and theatres is

permitted under amortization provisions

of “adult use” zoning ordinances.

Hart Bookstores v. Edmisten, 612 F.2d

821, 830 (4th Cir. 1979), cert.

denied, 447 U.S. 929 (1980);

Northend Cinema Inc. v. Seattle, 585

P.2d 1153, 1160 (1978), cert.

denied sub. nom. Apple Theatre

v. Seattle, 441 U.S. 946 (1979). The

denial of a license to open or operate

an adult bookstore or theatre has been

upheld where denial was based on a

prior prostitution, child pornography,

indecent exposure, or obscenity

conviction. Dumas v. City of Dallas,

648 F.Supp. 1061, 1073 (N.D.Tex. 1986),

upheld at F.2d _ (5th Cir.

1988) (relying on Arcara, supra);

also see 106 Forsyth Corp. v. Bishop,

482 F.2d 280, 281 (Sth Cir. 1973),

cert. denied, 422 U.S. 1044 (1975);

Barrago _v. City of Louisville, 456

F.Supp. 30, 32 (W.D.Ky. 1978); Airport

Bookstore, Inc. v. Jackson, 248 S.E.2d

623 (Ga. 1978), cert. denied sub.

nom. Gateway Books v. Jackson, 441

U.S. 952 (1979); West Gallery

Corporation v. Salt Lake City Board of

Commissioners, 586 P.2d 429 (Utah

1978). In Commonwealth v. Croatan

Books, 323 S.E.2d 86 (Va. 1984), the

Virginia Supreme Court upheld a

bookstore's closure based on evidence

that homosexuals congregated there to

engage in sexual acts -- even though

there was “no evidence" that the store

sold obscene material -- because the

closure was "based on criminal

activities occurring at the site." 323

S.E.2d at 89.

Indeed, other cases have upheld

closure of bookstores under abatement

of nuisance statutes because of illegal

conduct unrelated to expression. See

e.g. Art Theatre Guild, Inc. Vv.

Ewing, 421 U.S. 923 (1975), dismissing

the appeal from State ex rel. Ewing v.

"Without a Stitch", 307 N.E.2d 911

(Oh.1974); State, ex rel. Kidwell v.

U.S. Marketing, Inc., 631 P.2d 622, 25

ALR 4th 381 (Id. 1983), jurisdiction

noted 454 U.S. 1140, 71 L.Ed.2d 291,

102 S.Ct. 996, and appeal dismissed by

U.S. Marketing, 455 U.S. 1009, 71

L.Ed.2d 878, 102. +§&.Ct. 1649 (the

Supreme Court of Idaho held that a

one-year closure order under a nuisance

abatement statute for a leased

bookstore property did not constitute

an unlawful prior restraint on

speech.) These cases, like ours,

é This Court sought to address the

issue of closure as a remedy in

obscenity nuisance orders in Kidwell,

ra, jurisdiction noted, 454 U.S.

(1982). After an arson fire

destroyed the bookstore, its owners

filed for unilateral dismissal of their

appeal, which was granted by the Clerk

over the objection of the State of

Idaho. 455 U.S. 1009 (1982). This was

not a dismissal “by stipulation of

parties,” as indicated in Avenue Book

Store v. City of Fal amadaes Ohio, 459

a (1982)

(Justice White dissenting from denial

of writ of certiorari). See also:

U.S. Markening v. Leroy, 524 F.Supp.

are situations where speech is

interfered with incidentally during

punishment for past illegal and

unprotected conduct.

It is readily apparent that simply

because a person's speech is restrained

or inconvenienced as the unintended and

incidental result of a_ legitimate

statute does not create an

unconstitutional prior restraint on

speech. As with most criminal

statutes, every one of the predicate

offenses under any RICO statute can

arguably result in incidental

suppression of § speech. This is

particularly so if the property used in

the racketeering activity is a store

that sells expressive materials.

Petitioners’ interpretation of the

First Amendment would lead to the

absurd result of invalidating use of

-18-

RICO whenever criminals put their money

into such an “enterprise,” and for that

reason should be overturned. United

States v. Powers, 307 U.S. 214, 217,

reh'g denied, 308 U.S. 631 (1939).

The criminal nature of an

“enterprise” can be proven as neutrally

through sale of illegal obscenity as

through sale of illegal drugs, guns, or

forged documents (which is also

speech). As long as the legislation is

directed at unlawful conduct, and not

motivated by suppression of speech, its

purpose cannot be frustrated because

the criminal activity is intertwined

with expression.

Like prostitution in Arcara, the

sale of obscenity is illegal conduct

that a state may prohibit. Roth v.

United States, 354 U.S. 476 (1957).

The Indiana RICO statute is narrowly

drawn in its application since it

imposes sanctions only on the sellers

of obscenity, defining obscenity by the

3 As the Indiana

Miller standard.

Supreme Court recognized below, the

state has an important societal

interest in halting the flow of money

into organized crime from the sale of

obscenity. Goldsmith, 504 N.E.2d at

564. Any alleged impact on non-obscene

pornography is incidental to that

interest. See Arcara, 926 L.Ed.2d at

577, 578. It is not the motive or

purpose of the law. Thus, even if the

sale of pornography is intertwined with

the sale of obscenity and is

incidentally impacted, the result is

not an unconstitutional prior

restraint.

3

See Ind. Code S 35-49-2-1

defining obscene matter using’ the

Miller test.

-20-

cf. Arcara, supra; Cox, supra.

B. First Amendment interests

are a e rotec

° rosecution to

re

sous the eo icate offense

a Obsce 3: before defen-

dants can be oneicted of

racketeering.

It is critical to recognize that

no one can be convicted of

“racketeering” in this context until

they have been proven guilty of selling

illegal, unprotected, obscene matter.

The Indiana obscenity statute clearly

passes constitutional muster.

Sedelbauver v. State, 428 N.E.2d 206

(Ind. 1981), cert. denied, 455 U.S.

1035 (1982); Ford v. State, 394

N.E.2d 250 (Ind.App. 1979). The

Indiana obscenity statute gives

"adequate warning of the conduct

proscribed" so as to permit the law to

be fairly administered. See Roth v.

United States, 354 U.S. 476, 491

(1957).

Ry requiring the state to meet the

initial burden of proving the obscenity

offense, it is established that a

defendant is engaged in an illegal,

unprotected activity. It should make

no difference what criminal activity

triggers the RICO sanctions or what

“enterprise” the profits have been

poured into. The intent is not to

suppress speech, but to deter

racketeering activities. Selling

“obscene” matter has no more

constitutional protection than any

other RICO predicate offense.

CONCLUSION

For the foregoing reasons this

Court should uphold the decision of the

Indiana Supreme Court in 4447 Corp. v.

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

and find that the Indiana RICO law, as

applied to obscenity offenses, passes

constitutional muster.

Respectfully submitted,

Thomas E. Collins

County Attorney

By:

Attorney fo

Amicus Curiae