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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0575%3A24

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 46

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0575%3A24. Public record. Not legal advice.