Amicus Curiae Brief — Alexander v. United States

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TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS IN THIS CASE

SUMMARY OF ARGUMENT

ARGUMENT

I. NONOBSCENE SEXUALLY EXPLICIT

SPEECH IS ONLY INTERMEDIATELY

PROTECTED UNDER YOUNG V. AMERICAN

MINI THEATRES AND OTHER DECISIONS.

A. A Category of Speech That Is Only

Intermediately Protected Is Desirable.

1. Intermediate Protection Prevents

Total Exclusion.

2. Intermediate Protection Requires the

Court To Determine First Amendment

Values Rather Than Societal Values

and Thus Strengthens the First

Amendment.

B. The Court Has Recognized a Category

of Certain Types of Speech Entitled to

oe Protection.

l. Li

2. Commercial Speech.

3. Conduct.

C. Nonobscene Sexually Explicit Speech

Falls Within the Category of

Intermediately Protected Speech.

1. Limited First Amendment Value.

2. Relation to Other Speech.

3. State Interest

4. Precedent.

m O00

Il. AS INTERMEDIATELY PROTECTED

SPEECH, NONOBSCENE SEXUALLY

EXPLICIT SPEECH IS SUBJECT TO MORE

LIMITATIONS THAN FULLY

PROTECTED SPEECH, INCLUDING THE

LIMITATIONS INHERENT IN RICO

FORFEITURE. —

A. Nonobscene Sexually Explicit Speech

Is Properly Subject to Self-

Censorship Inherent in RICO Forfeiture.

B. Nonobscene Sexually Explicit Speech Is

Properly Subject to Any Overbroad

Regulation of Obscenity Inherent in

RICO Forfeiture.

C. Nonobscene Sexually Explicit Speech Is

Properly mee to Any Prior Restraint

Inherent in RICO Forfeiture.

CONCLUSION

22

25

-lii-

TABLE OF AUTHORITIES

CASES:

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

697 (1986) 12, 26, 30

Bantam Books, Inc. v. Sullivan, 372

U.S. 58 (1963) 26

Barnes v. Glen Theatre, Inc., 111 S.Ct. 2456

(1991) 12

Bates v. State Bar, 433 U.S. 350

(1977) 22, 25

Beauharnais v. Illinois, 343 U.S. 250

(1952) 3

Bethel School District No. 403 v.

Frasner, 478 U.S. 675 (1986) 19

Bichler v. Union Bank & Trust Co., 715

F.2d 1059, oy granted, vacated,

718 F.2d 802 (6th Cir.) 24

Bigelow v. Virginia, 421 U.S. 809

(1975) 25

Page

Bolger v. Youngs Drug Products Corp.,

463 US. 60 (1983)

Brewer v. Memphis Pub. Co., 626 F.2d

1238 (Sth Cir. 1980), cert. denied,

452 U.S. 962 (1981) 22

Brockett v. Spokane Arcades, Inc., 472

U.S. 491 (1985) 2

Brown v. Louisiana, 383 U.S. 131 (1966) 10, 12

22

-iv-

California v. LaRue, 409 U.S. 109

(1972) 12, 14, 16,

18, 24

Cantrell v. Forest City Pub. Co., 419

U.S. 245 (1974) 22

Capital Broadcasting Co. v. Kleindiest

405 U.S. 1000 (1972) 3, 30

Central Hudson Gas & Elec. Tit v.

Public Svc. Comm’n, 447 U.S. 557

(1980) 9, 15, 19

25, 26

Clark v. American PEE

Co ies, 684 F.2d 1208 (6th Cir.

1982), cert. denied, 460 U.S. 1040

(1983) 16

Cox v. Louisiana, 379 U.S. 559 (1965) 2,7

Cox Broadcasting Corp. v. Cohn, 420

U.S. 469 (1975) 22

Chaplinsky v. New Hampshire, 315 U.S.

568 (1942) 2,7

City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41 (1986) 17

Commonwealth v. Holmes, 17 Mass.

336 (1821) 14

Cox v. Louisiana, 379 U.S. 559 (1965) 2,4

Dennis v. United States, 341 U.S. 494

(1951) 2

Doran v. Salem Inn, Inc., 422 U.S. 922

(1975) 12, 18

Dunn & Bradstreet, Inc. v. Greenmoss,

472 U.S. 749 (1985) 22

-V-

Eaton v. City of Tulsa, 415 U.S. 697

(1974) 7

Erznoznik v. City of Jacksonville, 422

U.S. 205 (1975) 18

FCC v. Pacifica Foundation, 438 U.S.

24, 27

Fort a Books, Inc. v. Indiana, 103

L. Ed. 2d 34 (1989) 6, 24

Friedman v. Rogers, 440 U.S. 1 (1979) 11, 19, 22, 26

Gertz v. Robert Welch, Inc., 418 U.S.

323 (1974) 8, 22

Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) 2, 4, 6, 10

Ginsberg v. New York, 390 U.S. 629

(1968) 19

Gooding v. Wilson, 405 U.S. 518 (1972) 9

Hess v. Indiana, 414 U.S. 105 (1973) 4

In re R.M.J., 455 U.S. 191 (1982) 19, 22

Interstate Circuit, Inc. v. Dallas,

390 U.S. 676 (1968) 18

Kingsley Books, Inc. v. Brown, 354

U.S. 436 (1957) 26

Kleiner v. First National Bank, 751

F.2d 1193 (11th Cir. 1985) 19

Konigsberg v. State Bar, 366 U.S. 36

1961 2

Laird v. Tatum, 408 U.S. 1 (1972) 25

-vi-

Lewis v. New Orleans, 415 U.S. 130

(1974) 7

Lovisi v. Slayton, 539 F.2d 349 (4th

Cir.), cert. denied, 429 U.S.

977 (1976) 14

Masson v. Slaton, 320 F. Supp. 669

(N.D. Ga. 1970) 2

Miller v. California, 413 U.S. 15

(1973) 2, 14, 19

Mishkin v. New York, 383 U.S. 502

(1966) 19

NAACP v. Button, 375 U.S. 415 (1962) 8

Near v. Minnesota, 283 U.S. 697 (1931) 26

New York v. Ferber, 458 U.S. 747

(1982) 2, 15, 19

New York State ry, 4 Authority v. Bellanca,

.4§2 U.S. 714 (1981) 13

New York Times v. Sullivan, 376 U.S.

254 (1964) 4,5

New York Times Co. v. United States,

403 U.S. 713 (1971) 26

Ohralik v. Ohio State Bar Ass’n, 436

U.S. 447 (1978) 9, 11, 22, 26

Paris Adult Theatre I v. Slaton, 413

U.S. 49 (1973) 15

Pittsburgh Press Co. v. Pi

Comm’n on Human Relations, 413 U.S.

376 (1973) 23

Posadas de Puerto Rico Associates v.

-vii-

Tourism Company, 92 L. Ed. 2d 266

(1986)

Roe v. Wade, 410 U.S. 113 (1973)

Roth v. United States, 354 U.S. 476

(1957)

Scales v. United States, 367 U.S. 203

(1961)

Schad v. Borough of Mt. Ephraim, 452

U.S. 61 (1981)

Schultz v. Newsweek, 668 F.2d 911 (6th

Cir. 1982)

SEC v. Lowe, 725 F.2d 892 (2d Cir. 1984),

rev'd, 472 U.S. 181 (1985)

Smith v. California, 361 U.S. 147,

(1959)

Stansberry v. Holmes, 613 F.2d 1285

too) cert. denied, 449 U.S. 886

1

Teamsters Local 802 v. Wohl, 315 U.S.

769 (1942)

Time, Inc. v. Firestone, 424 U.S. 448

(1976)

Times Film Corp. v. City of Chicago,

365 U.S. 858 (1961)

United States v. O’Brien, 391 U.S. 367

(1968)

Valentine v. Chrestensen, 316 U.S. 52

(1942)

5, 18

-Vili-

Vance v. Universal Amusement Co., 445

U.S. 308 (1980) 22

Village of Hoffman Estates v.

ipside, 455 U.S. 489 (1982) 22, 25

Village of Schaumburg v. Citizens for

a Better Environment, 444 U.S. 620(1980) 28

Virginia State Bd. of Pharmacy v.

Virginia Citizens Consumer Council,

Inc., 425 U.S. 748 (1976) 4,5, 22, 25

Warner-Lambert Co. v. FTC, 562 F.2d

749 (D.C. Cir. 1977), cert. denied,

435 U.S. 950 (1978) 22

Watts v. United States, 394 U.S. 705

(1969) 2

Yo v. American Mini Theatres, Inc.,

27 U.S. 50 (1976) 2, 12, 16, 18

Zauderer v. Office of Disciplinary

Counsel, 471 U.S. 626

(1985) 19, 22

U.S. CONSTITUTION:

U.S. Const. amend. I 2, passim

OTHER AUTHORITIES:

Baker, Scope of the First Amendment

Freedom of Speech, 25 UCLA L. Rev. 964

(1978) 3

Barry, Female Sexual Slavery (1979) 17

BeVier, The First Amendment and

Political Speech: An Inquiry into the

Substance and Limits of Principle, 30

-ix-

Stan. L. Rev. 299 (1978) 3

Bork, Neutral Principles and Some

First Amendment Problems, 47 Ind. L_J.

1 (1971) 3

Comment, FTC v. Simeon Management

Corp.: The First Amendment and the

Need for Preliminary Injunctions ions of

Commercial Speech, 1977 Duke L.J. 489

Comment, The Supreme Court, 1976

Term--Constitutional Law, 90 Harv. L.

Rev. 58, (1976) 17

29

Dworkin, P. hy: Men Possessing

Women (1 81) 17

Donnerstein, aay 0d and Violence

Against Women: Experimental Studies,

in Pornography and Censorship (D.

Copp & S. Wendell eds. 1983) 17

Ely, Constitutional Interpretivism:

Its Allure and Impossibility, 52 Ind.

L.J. 399, (1978) 3

Emerson, Toward A General Theory of

the First Amendment, 72 Yale LJ. 877

(1963) 3

Griffin, Pornography and Silence (1981) 17

Jacobs, Patterns of Violence: A

Feminist Perspective on the Regulation

of Pornography, 7 Harv. Women’s L.J. 5

(1984) 15

Malamuth &. Donnerstein eds.., a.

raphy and Sexual Aggression (19 17

“Xe

Malamuth & Donnerstein, The Effects of

Aggressive P phic Mass Media

Stimuli, in 15 A ces in

mental Social Psychology (1982) 17

Note, Anti-Pomography Laws and First

Amendment Values, 98 Harv. L. Rev.

460, (1984) 14

Note, Constitutional Law--First

Amendment--Content Neutrality, Young

v. American Mini Theatres, Inc., 28

Case W. Res. L. Rev. 456, (1978) 17

Note, Content ny moa and the

Dimensions of Free Ex type 96

Harv. L. Rev. 1854, 1859 (1983) 3

Note, First Amendment Protection for

Commercial Advertising: The New

Constitutional Doctrine, 44 U. Chi. L.

Rev. 205 (1976) 5

Note, Using Constitutional Zoning to

Neutralize Adult Entertainme

Detroit to New York, 5 Fordham Urb.

LJ. 455 (1977) 27

Roberts, Toward a General Theory of

Commercial Speech and the First

Amendment, 40 Ohio St. L.J. 115,

(1979) 5

—- F ae Expression and

egories of _ 40 U. Pitt.

a i. 519 (1979

Schauer, Response: Pornogra tr a & and the First

Amendment, 40 U.Pitt. v. 605 (1979) 16

Schauer, Speech and "Speech"--Obscenity

and "Obscenity": an Exercise in the

Interpretation of Constitutional

e, 67 Geo. LJ.

99 (1979) 2, 3, 15

Stephan, The First Amendment and

Content Discrimination, 68 Va. L. Rev.

203 (1982) 3

Stricklin p & Wendell, Selected

Bibliography of Social Science Essays,

in Pornography and Censorship 17

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

No. 91-1526

FERRIS J. ALEXANDER, SR.

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent

On Writ Of Certiorari To The

United States Court Of Appeals For The Eighth Circuit

BRIEF AMICUS CURIAE OF

CHRISTIAN LEGAL DEFENSE

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS IN THIS CASE!

Amicus is a 20-year old organization representing

Christian families, churches, and ministries in defend-

ing freedom of conscience and religious liberty for all

through direct daily representation in Washington,

D.C., newsletters and other materials, seminars on

current national issues, and litigation.

*Counsel of record to the parties in this case

have consented to the filing of this brief. Letters of

consent have been filed with the Clerk of the Court

| pursuant to Rule 37.

2.

SUMMARY OF ARGUMENT

This Court’s gecisions in Young v. American Mini

Theatres, Inc.,~ and City of Renton v. Play-

time Theatres, Inc.,> regarding nonobscene

sexually explicit speech mirror doctrinal developments

relative to permissible defamation, commercial speech,

and expressive conduct. Due to the comparatively limit-

ed First Amendment value of such speech types, they are

not entitled to full First Amendment protection al-

though their close relationship to other speech types

requires some intermediate level of protection.

Thus, while the government may not be able to

suppress Petitioners nonobscene sexually explicit

speech prior to his RICO conviction, it can impose

penalties like forfeiture even though the possibility

of those penalties may have a chilling effect. Like-

wise, the government may act under overbroad statutes

that could reach mere sexually explicit speech, and may

subject sexually explicit speech to prior restraint,

just as it may in connection with commercial speech.

ARGUMENT

I. NONOBSCENE SEXUALLY EXPLICIT SPEECH IS

ONLY INTERMEDIATELY PROTECTED UNDER

YOUNG V. AMERICAN MINI THEATRES AND

OTHER DECISIONS.

This Court has ted a limited, intermediate pro-

tection under the First Amendment to certain types of

speech previously without any protection from governmen-

tal restriction. Those s of speech are commercial

speech, permissible defamation, and erotic and other

kinds of expressive conduct. Like those types, nonob-

“427 US. 50 (1976)(plurality opinion).

3475 US. 41 (1986). -

Appreciation is expressed to F. Tayton Dencer for

his review and criticism of the text of this brief.

-3-

scene sexually explicit speech has limited First Amend-

ment value if it has any First Amendment value at all,

~ has been and should be only intermediately protect-

ed.

A. A Category Of Speech That Is Only Intermediately

Protected Is Desirable.

1. Intermediate Protection Prevents Total Exclu-

sion.

Some sort of speech categorization is inevitable

because full First Amendment protection is not applied

to every spoken or printed word or illustration; that

Amendment simply does not extend absolutely to every

utterance or expression. Certain types of

speech are entirely without protection because they do

not have First Amendment value. For example, fighting

words,”° terroristic or extortionat

threats,° immediate seditious advocacy,

and other criminally instrumental words® are

without protection because they are merely verbal con-

*E.g., Miller v. California, 413 U.S. 15, 23

(1973); Konigsberg v. State Bar, 366 U.S. 36, 49-51

(1961).

SE.g., Cox v. Louisiana, 379 U.S. 559, 563

(1965); Chaplinsky v. New Hampshire, 315 US. 568,

571-72 (1942).

CF.g., Watts v. United States, 394 U.S. 705,

707 +(1969); Masson v. Slaton, 320 F. Supp. 669, 672

(N.D. Ga. 1970).

TE.g., Scales v. United States, 367 U.S. 203,

228-29 (1961); Dennis v. United States, 341 U.S. 494,

501-02 (1951) (plurality opinion).

Se.g., Cox v. Louisiana, 379 U.S. 559, 563

(1965); Giboney v. Empire Storage & Ice Co, 33% US.

490, 502 (1949).

4.

duct tantamount to nonverbal physical attack, subver-

sion, or crime, and have little if any relation to the

intellectual communication that is the most clear goal

of the First Amendment. Likewise unprotected are

obscenity and child pornography,” which, taken

as a whole, are mere physical stimulation through

nonideational verbal or pictorial incitement.

That prevailing approach to the scope of the Speech

Clause, categorizing speech as without protection ac-

cording to its relation to First Amendment values,

strongly supports the possibility of categorization of

certain speech as only intermediately

protected." In fact, since not all speech with-

in the arguable scope of the clause has equal First

Amendment value, an intermediate level of protection is

necessary to avoid cost to speech whose First Amendment

7E.g., Brockett v. Spokane Arcades, Inc., 472

U.S. 491, 105 S.Ct. 2794 (1985); New York v. Ferber,

458 U.S. 747, 764 (1982); Miller v. California, 413

US. at 23; Roth v. United States, 354 US. 476, 481,

485 (1957); See Schauer, Speech and

"Speech"--Obscenity and "Obscenity": an Exercise in

the Interpretation of Constitutional Language, 67

Geo. L.J. 899 (1979) (defending two-level approach to

obscenity as unprotected).

10F ,4., D. Barber, Pornography and

Society 91 (1972); Schauer, supra note 9, at

922-23 (“the prototypical pornographic item on closer

analysis shares more of the characteristics of sexual

activity than of the communicative process” and is “a

sexual surrogate”).

1 stephan, The First Amendment and Content

Discrimination, 68 Va. L. Rev. 203, 206, 212-13

(1982); Schauer, supra note 9, at 282-296;

Scanlon, Freedom of Expression and Categories of

Expression, 40 U. Pitt. L. Rev. 519, 538-42 (1979).

&

value is greater.12 Granting full protection to

speech with great potential for harm and only marginal

irst Amendment value is illogical, and simply will not

occur; exclusion is more likely. Thus, granting such

speech only intermediate protection may save it from

exclusion.

2. Intermediate Protection Requires the Court To

Determine First Amendment Values Rather Than

Societal Values and Thus Strengthens the First

Amendment.

The initial scholarly criticisms of categorization

focused on the tendentiousness (or at best arbitrari-

ness) of distinguishing certain kinds of expression

from others in terms of their social worth. Social

worth, meaning the value of a certain type of speech to

the majority, obviously cannot serve as the criterion

for delimiting the scope of the Free Speech Clause, for

it would render the clause superfluous.‘4 Howev-

er, categorization of certain types of speech as enti-

tled to only intermediate protection does not depend

“The scope of the clause may, of course, be

defined in such a way that a uniform level of

protection makes sense, but only at the cost of

excluding important forms of expression from _ its

coverage. See Schauer, supra note 9, at 275.

13 EF g., id. at 286. See R. Dworkin,

Taking Rights Seriously, 261 (1977); Ely,

Constitutional Interpretivism: Its Allure and

Impossibility, 52 Ind. L. J. 399, 420 (1978) (scope

and intensity of review, while different issues, are

nonetheless related, for “one who thinks he has a

mandate to review everything may respond by reviewing

nothing very seriously.”)

14 Se, Emerson, Toward A General Theory of

the First Amendment, 72 Yale LJ. 877, 887-893 (1963)

(discussing dynamics of maijoritarian pressures against

constitutional values).

-6-

upon, and in fact has no connection to, the

notion of social worth. Rather, such categori-

zation depends upon the First Amendment value of such

speech types, which may be determined from the framers’

purpose and intended meaning for the amendment, .

or in other ways.

Regardless of how the Court determines First Amend-

ment values, doing so doubtless will do much to rescue

the First Amendment from popular frustration and cyni-

cal attitudes engendered by the abuse of destructive

profiteers.

B. The Court Has Recognized a Category of Certain

Types of Speech Entitled to Only Intermediate

Protection.

The Court’s past exclusion of certain classes of

speech from all protection demonstrates the need for an

intermediate level of protection. The Court has treat-

ed obscenity, commercial speech, libel, and fighting

TS Cy. Fort Wayne Books, Inc. v. Indiana, 103

L. Ed. 2d 34, 62 (Stevens, J., dissenting)("[P]ublic

interest im access to sexually explicit materials

remains strong despite continuing efforts to stifle

distribution.)

16F 2, W. Berns, The First Amendment and

the Future of American Democracy (1976); Bork,

Neutral Principles and Some First Amendment

Problems, 47 Ind. LJ. 1 (1971).

17 Eg. BeVier, The First Amendment and

Political Speech: An Inquiry into the Substance and

Limits of Principle, 30 Stan. L. Rev. 299 (1978);

Baker, Scope of the First Amendment Freedom of

Speech, 25 U.C.L.A. L. Rev. 964 (1978); Stephan,

The First Amendment and Content Discrimination, 68

Va. L. Rev. 203, 210-213 (1982); Note, Content

Regulation and the Dimensions of Free Expression, %

Harv. L. Rev. 1854, 1859 (1983).

x Y

words, ng others, as subcategories of unprotected

snevenee.” Conduct can be added to this list

aS a generic subcategory, because it functioned in the

Court's doctrine as another ling for delineating the

scope of the Speech Clause.'? Over the past

twenty-five years, the Court modified its treatment

of commercial speech, libel,?? fighting

words, and conduct?? to allow partial,

TSE sg. Chaplinsky v. New Hampshire, 315 U-/S.

at 571-72 ("There are certain well-defined and narrowly

limited classes of speech, the prevention and

punishment of which have never been thought to raise

amy constitutional problem. These include the lewd and

obscene, the profane, the libelous, and the insulting

or fighting’ words .. . ."); Valentine v. Chrestensen,

316 U.S. 52, 54-55 (1942) (commercial advertising

unprotected); Roth v. United States, 354 US. 476, 481,

485 (1957) (obscenity etc.); Beauharnais v. Illinois,

343 U.S. 250, 266 (1952) (nonprivileged defamation).

19¢ ¢, Cox v. Louisiana, 379 U.S. 559, 563

(1965); Giboney v. Empire Storage & Ice Co, 336 US.

490, 498 (1949); Teamsters Local 802 v. Wohl, 315 US.

169, 716-77 (1942).

20Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748 (1976)

2INew York Times v. Sullivan, 376 U.S. 254,

271-72 (1964).

22 The fighting words category has never been

formally revised, as have cach of the others, but the

Court’s treatment of it has clearly limited it, if not

eliminated it. See, e.g., Eaton v. City of Tulsa,

415 US. 697 (1974); Hess v. Indiana, 414 US. 105

(1973). The Court has applied the overbreadth doctrine

to strike down state statutes purporting to authorize

punishment of fighting words. See Lewis v. New

Orleans, 415 U.S. 130 (1974); Gooding v. Wilson, 405

U.S. 518 (1972).

-8-

but not full, protection for some, but not all, expres-

sion within each. The common characteristics of those

of speech are (1) that they involve limited First

ndment value (substantive characteristic), and (2)

that may be difficult to discern from or segregate

from protected speech (strategic characteristic).

1, Libel.

The libel decisions paradigmatically illustrate both

the strategic and the substantive characteristics call-

ing for intermediate y= Prior to the Court’s

decision in New York Times v. Sullivan," the

states were free to regulate and punish libel. In that

case, the Court ruled that it was necessary to protect

some yy if nondefamatory expression

were to have ing space” it needed to sur-

vive The — interpreted its — as

—— "a measpre “py ~ protection to defama-

tory falsehood." The New York Times case

limited this strategic protection to libel of public

officials, as distinct from all forms of

libel, and to publication without fpalice in

regard to the falsity of the statements. Thus,

the Court carved out from ufprotected libel an area to

“United States v. O’Brien, 391 U.S. 367, 377

(1968).

24376 U.S. 254 (1964).

2374. at 271-72, (quoting N.A.A.C.P. v.

Button, 371 U.S. 415, 433 (1962)).

26Gertz v. Robert Welch, Inc., 418 US. 323, 342

(1974).

27376 US. at 283.

2814 at 279-80.

-9-

which it extended limited protection.

Although libel’s strategic characteristic dominated

the Court’s opinion in New York Times, a substan-

yy PH Ay 4

re) of pro : it to

fall within the First Amendment. However, ny sy not

deserve full protection because its primary purpose,

dissemination of falsehood, quite clearly is not a

First Amendment value.

2. Commercial Speech.

The commercial speech addressed by the Court con-

tains substantive and strategic characteristics similar

to those of libel. In Virginia State Board of Pharma-

cy yy Virginia Citizens Consumer Council,

Inc." the Court granted a measure of protec-

tion to previously unprotected commercial speech. As

in New York Times, the Court recognized that some,

though not full, protection ought to be accorded to

commercial speech,’* and that this protection

would extend to some, but certainly not forms of

29

“*See also Gooding v. Wilson, 405 U.S. 518,

521 (1972)(quoting NAACP v. Button, 371 US. 415, 433

(1963)), in which the author of New York Times,

Justice Brennan, referred to the necessity to protect

fighting words of limited First Amendment value in

order to protect other speech: “‘Because First

Amendment freedoms need breathing space to survive,

government may regulate in the area only with narrow

specificity.”

30425 U.S. 748 (1976).

3pg. at 771-72 & 1.24. Because the

protection accorded is not full, the First Amendment

“allow{s] modes of regulation that might be

impermissible in the realm of noncommercial

expression.” Obhralik v. Ohio State Bar Ass'n, 43% US.

447, 456 (1978).

-10-

commercial utterance** Leaving aside for the

most part the strategic rationale,’ the Court in

Virginia Pharmacy t to its decision in

the view that commercial is substantively differ-

ent from other forms Sy The Court

elaborated this view in ik v. Ohio State Bar

Association and numerous other decisions:

In rejecting the notion that such speech “is

wholly outside the protection of the First Amend-

ment,” Virginia , Supra, at 761, we

were careful not to hold “that it is wholly undif-

ferentiable from other forms" of speech. 425

U.S., at 771 n.24. We have not ded the

“common-sense” distinction between speech propos-

ing a commercial transaction . . . and other

varieties of speech. Ibid. To require a

parity of constitutional protection for commer-

= and r~ 42-w eeling alike could .-

ution, a leveling process, of the

force of Poy > A. SE. guarantee with respect

to the latter kind of speech. Rather than sub-

ject the First Amendment to such a devitaliza-

tion, we instead have afforded commercial speech

a limited measure of protection, commensurate

with its subordinate position in the scale

of First Amendment values... .

9425 U.S. at 764 (recognizing differing public

interest in different commercial messages).

33495 U.S. at 761, 71-72 n.24.

34436 U.S. at 455-56 (1978)(emphasis added).

Accord, Central Hudson Gas & Elec. Corp. v. Pub.

Service Comm’n, 447 US. 557, 562-63 (1980); Friedman

v. Rogers, 440 US. 1, 10-11 n9 (1979); SEC v. Lowe,

725 F.2d 892, 901 0.6 (2d Cir. 1984)(""middle level’

protection . . . for . . . commercial advertising’),

rev'd, 472 U.S. 181 (1985); see generally

Note, First Amendment Protection for Commercial

Advertising: The New Constitutional Doctrine, 44 U.

“se

Although the speech component suggests some First Amend-

ment protection is due, the Court denied that full

protection can be afforded to commercial speech, for

the state cannot "lose its power to regulate commercial

activity deemed harmful to th¢ public whenever speech

is a component of that activity.”’>

At a strategic level, commercial speech that in-

volves limited First Amendment value po be difficult

to discern from fully protected speech, although not as

difficult to discern as libel. Also, aspects of commer-

cial speech with limited First Amendment value may be

difficult to segregate from those aspects with clear

First Amendment value. Just as the problem of

libel presented a combination of falsehood and nonfalse

speech, so commercial speech is a mixture of argument

and solicitation.

3. Conduct.

Some early decisions implied an absolute dichotomy

between speech and conduct, with speech being fully

Chi. L. Rev. 205, 222-54 (1976); Roberts, Toward a

General Theory of Commercial Speech and the First

Amendment, 40 Ohio St. LJ. 115, 131 (1979).

35Friedman vv. Rogers, 440 U.S. at 10-11 1.9

(quoting Ohralik v. Ohio State Bar Ass'n, 436 US.

447, 456 (1978)).

36See Posadas de Puerto Rico Associates v.

Tourism Company, 92 L.Ed2d 266 (1986). The Court

upheld restriction of commercial advertising of

gambling while acknowledging that the government's

purpose was to prevent encouragement of gambling Such

general encouragement, as opposed to solicitation to

frequent a particular establishment, seems clearly to

be a value of the First Amendment.

x, *

rotected and conduct wholly unprotected.?’

phe decisions recognized that the speech component of

expressive conduct deserved protection. Never-

theless, much that is ressive in conduct does not

implicate in any substantial way First Amendment val-

ues, so such conduct was entitled to only limited pro-

tectign. For example, in Barnes v. Glen Theatre,

Inc.,°” the Court recognized that "almost limit-

less types of conduct - including appearing in the nude

in public - are ‘expressive,’ . . . in one sense of the

word,” but that the more hic expression added by

totally nude dancing could limited. Indeed, to

accord full protection for all conduct that has an

expressive dimension would too greatly undermine the

state’s power to regulate conduct, just as with commer-

cial advertising. Thus, the rule fashioned by the

Court provides a form of limited protection; the state

can regulate expressive conduct if it has a substantial

interest unrelated to the suppression of political

expression.

The prevailing rule regarding nonobscene sexually

explicit conduct such as nonobscene topless or bottom-

less dancing is that only limited First endment pro-

tection applies to it, although "nude dancing is not

>'E.g., Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949).

38 ee, e.g., Brown v. Louisiana, 383 U.S. 131

(1966).

394141 S.Ct. 2456, 2463 (1991) (plurality

opinion).

40F g., United States v. O’Brien, 391 U.S.

367, 377 (1968). See Arcara v. Cloud Books, Inc.,

478 U.S. 697, 702 (1986)(O’Brien involved ‘scrutiny of

a statute regulating conduct which has the _ incidental

effect of burdening the expression of a particular

political opinion. )(emphasis supplied).

—

7 -13-

without its First Amendment protections.4! This

is evident in the Supreme Court decisions in

California v. LaRue and New York State

Liquor Authority v. Bellanca,*> which upheld

prohibitions of nude dancing and topless dancing, re-

spectively, in establishments with liquor licens-

es

On a substantive level, then, regulation of expres-

sion that implicates First Amendment values in only a

marginal way logically does not violate the First Amend-

ment. On a strategic level, however, sensitivity to

clear First Amendment values requires that such expres-

sion be afforded some protection. The development of a

theory of intermediate protection is, thus, a response

calibrated to accommodate legitimate state interests

while protecting First Amendment values.

C. Nonobscene Explicit Speech Falls Within

the Category of Intermediately Protected Speech.

“"Schad v. Borough of Mt. Ephraim, 452 US. 61,

66. (1981) See also Doran v. Salem Inn, Inc., 422

U.S. 922, 932 (1975) ("might be entitled to

protection under some circumstances").

42409 U.S. 109 (1972).

43452 U.S. 714 (1981) (per curiam).

44409 US. at 118; 452 US. at 715-18. Although

the Court stressed the states’ regulatory authority

under the Twenty-first Amendment, it did not state or

intimate that such regulation would constitute a

compelling state interest, and therefore allowed

regulation of nude and topless dancing that would not

be permissible for fully protected expression. See

also Young v. American Mini Theatres, Inc, 427 US.

50 (1976) (upholding regulation, inter alia, of

“Group D cabarets” with partially nude performance, on

the basis of legitimate state interest).

-14-

If one visualizes a continuum of expression ranging

from total obscenity to fully protected forms of expres-

sion, nonobscene erotic material would fal] somewhere

between those conceptual endpoints. As the

erotic component of expression becomes increasingly

dominant and conspicuous, the expression would begin to

look more and more like obscenity, until at some point

it Ee oy into that unprotected status. It

would be both unrealistic and theoretically inconsis-

tent with this graduated view of expression to impose a

total transmogrification at some specific point on the

continuum from nonobscenity to obscenity. More realis-

tic and consistent is categorizing nonobscene erotic

speech as entitled to the same intermediate protection

to which commercial speech, permissible defamation, and

expressive conduct are entitled.

1. Limited First Amendment Value.

Although the "portrayal of sex, eg., in art,

literature and scientific works, is not itself suffi-

cient reason to deny material the constitutional protec-

tion of freedom of speech and press,"*’ that

CF. Note, Anti-Pornography Laws and First

Amendment Values, 98 Harv. L. Rev. 460, 469-474

(1984) (discussing hybrid character of pornography).

46cf California v. LaRue, 409 U.S. 109, 117

(1972) ("as the mode of expression moves from the

printed page to the commission of public acts that may

themselves violate valid penal statutes, the scope of

permissible state regulations significantly increase”).

47Roth v. United States, 354 US. 476, 487 (1957)

(footnote omitted). E.g., Schad v. Village of

Mount Ephraim, 452 U.S. at 66 (1981) (nudity).

Although in Roth the Court stated that “{ajll ideas

having even the slightest redeeming social

importance--unorthodox ideas, controversial ideas, even

ideas hateful to the prevailing climate of

opinion"--have full First Amendment protection, 354

-15-

principle does not mean that sexual acts or similar

conduct are protected by the First Amendment at

all,’ and it does not demand the same degree of

protection for erotic material as for traditionally

protected speech and press.

Nonobscene sexually explicit material involves lit-

tle, First Amendment value. The purpose and effect of

such material is not intellectual stimulation but mere-

ly physical stimulation, as demonstrated in part by the

limited verbal aspect of much of that material. More-

over, purchasers, authors and vendors of such erotic

materials are carrying on commercial noncommunicative

U.S. at 484, this dictum means only that ideas are

fully protected, whether political, literary, artistic,

and scientific, not that the predominant conduct of

sexually-explicit material is fully protected. In

fact, when Roth was decided, much of the erotic

material involved in the instant case probably would

have been considered obscene and thus unprotected.

hd Paris Adult Theatre I v. Slaton, 413

US. 49, 66 & n.13 (1973); Lovisi v. Slayton, 539 F.2d

349, 351-52 (4th Cir.), cert. denied, 429 U.S. 977

(1976).

49 ascribing only partial First Amendment

protection to erotic material does not reduce the

constitutional protection for such expression; instead,

it results from the relatively recent shift of erotic

material from the unprotected category to some

—protection. E.g., Schauer, supra note 9, at

907-08 & n.50 (courts have given First Amendment

protection but reduced its level in such areas as

nonobscene erotic material and nonobscene indecent

language); compare Schauer, The Law of

Obscenity 21-22 (1976) (in obscenity prosecutions in

the nineteenth century, “almost anything that concerned

sexual relationships in any way was presumed to be

obscene") and Commonwealth v. Holmes, 17 Mass. 336

(1821) (example of same) with Miller v. California,

413 US. at 24 (narrow test for obscenity).

-16-

action rather than gincerely conveying any First Amend-

ment expression. Erotic material is closer to

unprotected obscenity, ——, sexual solicita-

tion, and nonartistic public nudity than to protected

expression of any type. In this sense, nonobscene

sexually explicit material shares many of the very

characteristics of unprotected sexually explicit expres-

sion, like obscenity and child porn hy, that render

it unprotected. In fact, the Court in, both

Ferber? and Osborne v. Ohio,°>? in

addition to noting the danger posed to children by

child pornography, noted that "the value of permitting

child pornography" is “exceedingly modest, if not de

minimis.”

2. Relation to Other Speech.

While nonobscene sexually explicit expression may

contain some characteristics of speech, and thus have

some limited First Amendment value, and while such

expression may be entwined with speech implicating more

clearly First Amendment values, restriction short of

actual suppression strikes a reasonable balance between

the state’s interest and such fully protected speech.

As with advertising, anything more than limited protec-

tion for erotic material "could invite dilution, simply

by a leveling process, of the force of the [First]

"See, e.g-, Young v. American Mini

Theatres, Inc., 427 U.S. at 70; California v. LaRue,

409 U.S. at 118 ("in the form of movies or live

entertainment, ‘performances’ that partake more of

gross sexuality than of communication"); Schauer,

Response: Pornography and the First Amendment, 40

U. Pitt. L. Rev. 605, 608 (1979) ("none of the

philosophical justifications of a distinct concept of

freedom of speech would put direct sexual excitement

within the confines of that principle”).

51458 U.S. at 762.

52495 U.S. 103, 108 (1990).

-17-

Amendment's guarantee with respect to the latter kind

of speech."

3. State Interest.

Moreover, the limited First Amendment value of such

speech is dwarfed by the potential harm of such

speech. Joining theological conservatives and politi-

cal conservatives who cite the negative impact on moral-

ity and family stability, feminists generally are at-

tacking most such erotic material because of its degra-

datign of women and its frequent endorsement of violent

Sex. The evidence of a correlation between

sexually explicit material (whether or ng legally

obscene) and sexual crimes continues to mount.

4. Precedent.

This Court acknowledged the "lesser" First Amendment

protection for nonobscene erotic material in the

plurality opinion in Young v. American Mini Theatres,

°?Central Hudson Gas & Elec. Corp. v. Pub.

Service Comm’n, 447 U.S. at 563 n.5 (quoting

Ohralik v. Ohio State Bar Ass’n, 436 U.S. at 456).

S4E g., A. Dworkin, Pornography: Men

Possessing Women (1981); S. Griffin, Pornography

and Silence (1981); K. Barry, Female Sexual

Slavery 174-214 (1979); Jacobs, Patterns of

Violence: A Feminist Perspective on the Regulation of

Pornography, 7 Harv. Women’s L_J. 5 (1984).

SSE. g., Pornography and Sexual Aggression (N.

Malamuth &. E. Donnerstein eds. 1984); Donnerstein,

Pornography and Violence against Women: Experimental

Studies, in Pornography and Censorship 219 (D.

Copp & S. Wendell eds. 1983); Malamuth & Donnerstein,

The Effects of Aggressive Pornographic Mass Media

Stimuli, im 15 Advances in Experimental Social

Psychology 103 (1982); Strickling, Copp & Wendell,

Selected Bibliography of Social Science Essays, in

Pornography and Censorship, supra at 311.

-18-

Inc.:

[T]here is surely a Jess vital interest in

the uninhibited exhibition of material that is on

the borderline between pornography and artistic

expression than in the free dissemination of

ideas of social and political significance .. .

[E]ven though we recognize that the First Amend-

ment will not tolerate the total suppression of

erotic materials that have some arguably artistic

value, it is manifest that society's interest

in protecting this type of expression is of a

wholly different, and lesser, magnitude than

the interest in untrammeled political debate that

inspired Voltaire’s immortal comment. Whether

political oratory or philosophical discussion

moves us to — or to despise what is said,

every schoolchild can understand why our duty to

defend the right to speak remains the same. But |

few of us would march our sons and daughters off

to war to Fe ty the citizen’s right to see

"Specified Sexual Actiyjties" exhibited in the

theaters of our choice.

The Court’s finding of a "lesser" First Amendment pro-

tection for erotic material was clearly the premise for

its findings that reasonable regulation of such materi-

al does not abridge freedoms of speech and press and

that content-based regulation of sexually explicit

material does not violate equal protection.

99427 «U.S. at 61 (plurality opinion) (emphasis

added).

5714. at 70 (plurality opinion) (emphasis

added).

58 Eg, id. at 96 (dissenting justices’

“forthright rejection of the notion that First

Amendment protection is diminished for ‘erotic

materials”); Stansberry v. Holmes, 613 F.2d 1285, 1288

-19-

The Court referred to that premise, neither reaffirming

nor repudiating it, and similar findings in terms

of sustaining reasonable tion despite its content

discrimination toward ne erotic material, in

City of Renton v. Playtime Theatres, Inc.

ikewise, in Bethel School District No. 403 v. Fras-

er,” the Court determined that “the penalties

me [for an indecent ] were unrelated to any

— viewpoint,” and thus could be imposed. The

nd Circuit, along with other courts, has noted that

"[rjelevant reme Court decisions suggest that a

similar ‘middle level’ +~— is appropriate for

certain kinds of speech, for example in areas of regula-

tion of commercial advertising [and] zoning of theaters

which play ‘adult’ but not obscene films.

Other decisions, besides Mini Theatres and the

advertising and libel and expressive conduct analogies,

support proposition that erotic materjal is only

intermediately protected expression. These

(Sth Cir.) ("Young affords certain ‘speech’ activities

lesser protection"), cert. denied, 449 U.S. 886

(1980); Note, Constitutional Law--First

Amendment--Content Neutrality, Young v. American Mini

Theatres, Inc., 28 Case W. Res. L. Rev. 456, 478

(1978); Comment, The Supreme Court, 1976

Term--Constitutional Law, 90 Harv. L. Rev. 58, 200

(1976)(same).

59475 U.S. at 47 ("To be sure, the ordinance

treats theaters that specialize in adult films

differently from other kinds of theatres.")

60.478 U.S. 675, 685 (1986).

SISE.C. v. Lowe, 725 F.2d 892, 91 n6 (2d Cir.

1984), rev'd on other grounds, 472 U.S. 181 (1985).

S2While the Supreme Court comsidered cases

involving sex-related films in Interstate Circuit, Inc.

v. Dallas, 390 U.S. 676 (1968), and Erznozik v. City

of Jacksonville, 422 U.S. 205 (1975), neither case

-20-

decisions involve nonobs-ene but indecent speech, nonob-

scene but erotic expressive conduct, and obscenity

itself with a variable scope, all of which tacitly (and

sometimes explicitly) recognize a role for intermediate

protection in First Amendment sadatens Goctsinn.

The Supreme Court in FCC v. Pacifica Founda-

tion,” in sustaining under the First Amendment

a statutory pro hibition oqeainst broadcast of nonobscene

“indecent” s speech,® permijied regulation of

sexually amp icit expression =? would not

have been dw . --y- -¥— or fully pro-

tected speech or implicitly indi-

cates a lesser First ym se protection for such

nonobscene material. In fact, the plurality opinion

stated that such "patently offensive references to

excretory and sexual organs and activities" “lie at the

ri wel of First Amendment concern," and that

fies place in the hierarchy of First Amendment

ues was ‘no essential part of any exposition

of ideas’... ." ©

involved an ordinance regulating sexually-explicit

films or publications and both regulated

fully-protected films as well as arguably erotic ones.

The ordinance in Interstate Circuit concerned

classification of films encouraging "sexual

promiscuity,” 390 U.S. at 687, and that in Erznoznik

concerned any nudity at all visible from public roads,

422 U.S. at 213, rather than sexually-explicit films.

In Mini Theatres, both the plurality opinion and the

concurring opinion (written by the author of the

Erznoznik opinion) distinguished Erznozoik on this

basis. 427 U.S. at 72 2.35, 83.

63438 U.S. 726 (1978).

474g. at 744 (plurality opinion); id. at

756, 761 (Powell, J., concurring).

®5)4. at 743.

6674. at 743, 746 (quoting Chaplinsky v.

The Court in LaRue! in upholding a regu-

lation of sexually explicit dancing, films, and _pic-

tures in bars with liquor licenses, also recognized the

lesser First Amandmens 4 protection of such erotic enter-

tainment and materials as compared with ao

—, literary, and scientific speech

protection freedom of expres-

—' they are not “the constitutional equivalent of a

potas Sy 2 smatly oes Seat wnpe i 8 Go

ater. uently, “as the mode of expres-

sion moves = the printed page to the commission of

public acts that or themselves violate valid penal

Statutes, the scope of permissible state regulations

significantly increases.

The obsceni ions of the Supreme Court, in

Miller v.Cali a. and other cases, have

implicitly found less constitutional protection for

Those’ dea material on the periphery of obsceni-

decisions have permitted variation in the

toes factors me obscenity, with the effect

of shifting erotic into the obscenity category

2 ee Se Oe on OS Ce & ry in

others; such variation would not be permissible for

fully protected speech and press. That variation in-

New Hampshire, 315 U.S. 571-72).

67409 US. at 118. See New York State Liquor

Auth. v. Bellanca, 452 U.S. at 715-18 (1981) (per

curiam) (upholding prohibition of topless dancers in

establishments with liquor licsenses as “a reasonable

restriction”).

8400 US. at 118.

697g. at 117. Accord, Doran v. Salem

Inn, Inc., 422 U.S. at 932.

0413 US. 15, 25-26 (1973).

-22-

cludes patent offensiveness as determined by different

community standards,’* prurient i as _ influ-

enced by the deviant ‘natese of the recipient

group, and all three Miller factors as

adiygted for the minority age of the recipient individu-

Il. AS INTERMEDIATELY PROTECTED SPEECH,

NONOBSCENE SEXUALLY EXPLICIT SPEECH

IS SUBJECT TO MORE LIMITATIONS THAN

For intermediately protected the First

Amendment often has t and should be viewed as permit-

S A

eS ee eee ©

realm of non-commercial expression.

Td. at 30.

726g. Mishkin v. New York, 383 U.S. 502,

509-09 (1966).

736 9., Ginsberg v. New York, 390 U.S. 629,

638 (1968); see New York v. Ferber, 458 US. 747

(1982) (child pornography).

4Friedman vv. Rogers, 440 U.S. at 10-11 1.9,

(quoting Obralik v. Ohio State Bar Ass'n, 436 US.

at 456). Accord, e.g., Zauderer v. Office of

Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265,

2276 (1985); Bolger v. Youngs Drug Products Corp, 463

US. 60, 65 (1983); In re RMJ. 455 US. 191, 2

(1982); Central Hudson Gas & Elec. Corp. v. Public Svc.

Comm’n, 447 US. 557, 563 (1980); Kleiner v. First

National Bank, 751 F.2d 1193, 1204 (i1lth Cir. 1985)

(“Commercial speech is subjected to stricter

governmental regulations, comsistent with the

‘subordinate position in the scale of First Amendment’

it mifgading and deceptive a8 well a fl

~ 4-4 suppress advertising concerning

illegal transactions, require mecessary warn-

ings or disclaimers. on commercial

advertisements,’ and prohibit attorneys’ solici-

tation for nonideological or broadcast adver-

tising for cigarettes. Likewise, the First

Amendment has pe ed pe

other limitations of intermediately protected expres-

sion to which fully i + 4A,—- expression are not sub-

ject. For example may define for them-

selves the y— —- standard 4 of liability for a

publisher or broadcaster of defamatory falsehood injuri-

ous to a private individual.”

values assigned commercial speech.”).

TSE. g., Zauderer v. Office of Disciplinary

Counsel, 471 U.S. 626, 105 S.Ct. at 2275; Bolger v.

Youngs Drug Products Corp, 463 US. at 69; In re

R.MJ. 455 US. at 203; Friedman v. Rogers, 440 US.

at 9; Bates v. State Bar, 433 US. 350, 383 (1977);

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. at 771-72 & n.24.

Or ¢., Bolger v. Youngs Drug Products Corp.,

77 L.Ed. 28 at 47; Village of Hoffman Estates v.

Flipside, 455 US. 489, 496 (1982); Bates v. State Bar,

433 U.S. at 384; Pittsburgh Press Co. v. Pittsburgh

Comm ’n on Human Relations, 413 U.S. at 388.

TTB. g., Virginia State Bd. of Pharmacy v.

Virginia Citizens Consumer Council, Inc, 425 US. at

772 2.24; Warner-Lambert Co. v. FTC, 562 F.2d 749,

758-59 (D.C. Cir. 1977), cert. denied, 435 US. 950

(1978).

18E ¢., Ohbralik v. Ohio State Bar Ass'n, 436

U.S. 447 (1978); Capital Broadcasting Co. vy.

Kleindienst, 405 U.S. 1000 (1972).

19 Gertz v. Robert Welch, Inc., 418 U.S. at

-24-

Nonobscene se explicit expression is also

subject to greater regulation and limitation, short of

total prohibition, than is fully protected ression,

as the Supreme Court’s decisions in Mini '

Bellanca, LaRue, and Pacifica Foundation

evince. Although the plurality in Mini The-

atres observed in a footnote that the Detroit

"situation would be quite different if the ordinance

had the effect of suppressing, or greatly restricting

347-48. Accord, Dunn & Bradstreet, Inc. v.

Greenmoss, 472 U.S. 749, (1985); Time, Inc. v.

Firestone, 424 U.S. 448, 460 (1976); Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 499 (1975); Cantrell v.

Forest City Pub. Co, 419 US. 245, 250 (1974); Bichler

v. Union Bank & Trust Co, 715 F.2d 1059, 1063, reh’g

granted, vacated, 718 F2d 802; (6th Cir.); Schultz v.

Newsweek, 668 F.2d 911, 918 (6th Cir. 1982); Clark v.

American Broadcasting Companies, 684 F.2d 1208, 1214

n.4 (6th Cir. 1982), cert. denied, 460 U.S. 1040

(1983); Brewer v. Memphis Pub. Co. 626 F.2d 1238, 1246

(Sth Cir. 1980), cert. denied, 452 U.S. 962 (1981).

80schad is not contrary to this rule, because

the ordinance there excluded all live entertainment

from commercial zones, and thereby ‘prohibitjed] a wide

range of expression that has long been held to be

within the protections of the First and Fourteenth

Amendments,” 452 U.S. at 65, as well as _ prohibiting

partially protected nude dancing from adult

establishments. Doran is also not contrary,

because it found unconstitutional a total prohibition

of topless dancing in establishments without liquor

licenses that would have been constitutional if limited

to establishments with liquor licenses. New York State

Liquor Auth. v. Bellanca, 452 US. at 716-17. Vance

v. Universal Amusement Co. 445 US. 308 (1980)(per

curiam), is mot contrary, because it involved total

prohibition of erotic material under a public nuisance

Statute without a judicial finding of obscenity. And

Erznoznik is not contrary. Note 62, supra.

access to, lawful a i meant that such a

great restriction d be “more than a limitation on

the place,""* and it did not identify erotic

material as sufficiently pe "lawful speech" to

change the situation. ch expression is subject to

the limitations presented by this case.

A. Nonobscene Sexually Explicit S Is Properly

ee Oe SDSS nherent in RICO

F

While petitioner in this case confines his arguments

to the effect of forfeiture upon t-forfeiture

speech, his repeated references to potentially

tremendous impact of such forfeiture imply that book-

sellers, theater owners and other vendors of sexuall

explicit materials will feel an unconstitutional chill-

ing effect and will censor such materials themselves.

Forfeiture certainly does not appear as horrific as

petitioner attempts to vay it if the person subject

to forfeiture may avoid it simply by refraining from

selling obscenity, but to avoid selling obscenity, such

vendors may cautiously censor nonobscene sexually ex-

plicit materials.

Of course, the Court has previously refused to iden-

tify the inducement to such self-censorship as a consti-

tutional violation:

[D]eterrence of the sale of obscene materials is a

31477 US. at 71 0.35 (plurality opinion).

821g. at 71. The text of the opinion, to

which footnote 35 relates, states: “Since what is

ultimately at stake is nothing more than a lim tation

on the place where adult films may be exhibited,

even though the determination of whether a particular

film fits that characterization turns on the nature of

its content, we conclude that the city’s interest in

the present and future character of its neighborhoods

adequately supports its classification of motion

pictures.” Jd. at 71-72.

-26-

legitimate end of state anti-obscenity laws, and our

cases have long recognized the practical reality

that "any form of criminal obscenity statute applica-

ble to a bookseller will induce some tendency to

self-censorship and have some inhibitory effect on

the dissemination of material not obscene." Smith

v. California, 361 US 147, 154-155, 4 L Ed 2d 205,

80 S Ct 215, 14 Ohio Ops 2d 459 (1959). Cf also

Arcara v. Cloud Books, Inc., 478 US 697, 706, 92 L

Ed 2d 568, 106 S Ct 3172 (1986).

In addition, any increased inducement to

self-censorship caused by the addition of forfeiture to

other criminal punishments does not violate the First

Amendment because nonobscene sexually explicit speech

is only intermediately protected. To deny to the peo-

ple such a valuable tool against harmful obscenity and

aner sacang | solely because it impinges speech that

implicates First Amendment values in only a marginal

way is unreasonable. The majority in Mini The-

atres, in denying standing for a vagueness challenge,

gave the following rationale:

Since there is surely a less vital interest in

the uninhibited exhibition of material that is on

the borderline between pornography and artistic

expression than in the free dissemination of

ideas of social and political significance, and

since the limited amount of uncertainty in the

ordinance is easily susceptible of a narrowing

construction, we think this is an inappropriate

case in which to eo the hypothetical

claims of persons not before the Court.

.... The fact that the First Amendment

protects some, though not necessarily all, of

that material from total suppression does not

warrant the further conclusion that an exhibi-

tor’s doubts . . . involves the kind of threat to

the free market in ideas and expression that

Bort Wayne Books, Inc. v. Indiana, 103 L.Ed.2d

34, 49 (1989).

-27-

justifies the exceptional approach [of over-

readth standing] to constitutional adjudication

recognized in cases like Dombrowski

The decisions in Pacifica Foundation and LaRue

support this point as well.

B. Nonobscene Sexually Explicit Speech Is Properly

Subject to Any Overbroad Regulation of Obscenity

Inherent in Rico Forfeiture.

Petitioner’s argument that forfeiture may constitute

overbroad regulation is of course merely another way of

7 US. at 61.

85ECC v. Pacifica Foundation, 438 U.S. at 743

(plurality opinion) (because such “references to

excretory and sexual organs and activities" “lie at the

periphery of First Amendment concern,” the Court

“decline[d] to administer that medicine” of

"[i]Jmvalidating any rule on the basis of its

hypothetical application to situations not before the

Court"); California v. LaRue, 409 US. at 118-19 & n5

(1972) (the Court there "refused to apply the

overbreadth doctrine” to regulation of sexually

explicit dancing, films, and pictures in establishments

with state liquor licenses).

Although Erznoznik found an ordinance overbroad

that prohibited exhibition of films containing any

nudity and visible from public streets, it involved

fully protected expression that was impermissibly

regulated through the ordinance’s overbreadth as_ well

as (partially protected) sexually explicit films that

were as here permissibly regulated; Note, Using

Constitutional Zoning to Neutralize Adult

Entertainment--Detroit to New York, 5 Fordham Urb.

L.J. 455, 463 (1977). It was distinguished on this

basis by a majority in Mini Theatres. 427 US. at 72

n. 35 (plurality opinion); id. at 83 (Powell, J.,

concurring).

-28-

saying that the government may not punish by confiscat-

ing assets rather than imposing — terms. The word

“overbreadth” may apply to forfeiture in the sense that

nonobscene assets are subject to forfeiture for predi-

cate acts involving obscenity, but the doctrine, that

Statutes or regulations may be facially invalid because

they authorize prosecution of protected activity, does

not. Only the illegal obscenity-related conduct is

being prosecuted.

Even if the doctrine of overbreadth were applicable

to forfeiture, however, the doctrine would not prevent

the forfeiture of nonobscene sexually explicit materi-

al. Since such material, like commercial speech, has

limited First Amendment value and is only

intermediately protected, the threat posed by an

overbroad statute or regulation, like the threat posed

by vagueness, is marginal and therefore tolerable.

Intermediately protected erotic material, like

commercial advertising, "may be more durable than other

kinds" of speech and press because through its integral

relation to “commercial profits . . . there is little

likelihood of its bein chilled by proper regulation

and foregone entirely." The Court has held

that "the overbreadth doctrine does not apply {9

commercial speech." That doctrine

B6Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, Inc, 425 US. at 772 1.24.

See also Central Hudson Gas & Elec. Corp. v. Pub.

Service Comm’n, 447 US. at 571 0.13.

87 Village of Hoffman Estates v. Flipside, 455

U.S. at 497. Accord, e.g., Central Hudson Gas &

Elec. Corp. v. Public Servic. Comm’n, 447 US. at 565

n.8; Village of Schaumburg v. Citizens for a _ Better

Environment, 444 US. 620, 635 (1980); Bates v. State

Bar, 433 U.S. at 380-81.

88Rigelow v. Virginia, 421 U.S. 809, 816-17

(1975); Laird v. Tatum, 408 U.S. 1, 13-14 (1972).

Although it may appear to apply overbreadth analysis to

intermediately-protected expression, Bigelow

-29-

Should not be applied to any intermediately

protected expression, including nonobscene sexually

explicit speech.

C. Nonobscene Sexually Explicit Speech Is Properly

Subject to Any Prior Restraint Inherent in RICO

Forfeiture.

Even if the Court accepts Petitioner's argument that

forfeiture of expressive materials is a prior restraint

rather than simply punishment for criminal violations,

nonobscene sexually explicit materials are legitimately

subject to forfeiture because they are properly subject

to prior restraints. Just as for commercial advertis-

ing "the different degree of protection" "may also make

inapplicable the prohibition against prior re-

straints," the different degree of protection

involved a fully protected constitutional right with

apparent First Amendment ties that invoked overbreadth

analysis, see Roe v. Wade, 410 U.S. 113 (1973), and

the Supreme Court expressly declined to rely on

overbreadth grounds, 421 U.S. at 817-18.

89Friedman vv. Rogers, 440 U.S. at 10 (quoting

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. at 772 1.24).

Accord, e.g. Central Hudson Gas & Elec. Corp. v.

Pub. Service Comm’n, 447 U.S. at 571 1.13; see

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 464

(1978) (upholding bar rules against partially protected

attorneys’ solicitation “whose objective is the

prevention of harm before it occurs"); Comment, FTC

v. Simeon Management Corp.: The First Amendment and the

Need for Preliminary Injunctions of Commercial

Speech, 1977 Duke L.J. 489, 501-10 (injunctions

against commercial speech do not violate prior

restraint rule). The prior restraint rule does not

apply to unprotected expression such as obscenity.

Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957);

Near v. Minnesota, 283 U.S. 697, 716 (1931).

Moreover, the prior restraint rule, New York Times

Co. v. United States, 403 US. 713, 714 (1971) (per

-30-

afforded sexually explicit materials subjects them to

i“? restraints. Just as cigarette advertisements may

e banned from television, nonobscene

"indecent" language may be _ prohibited, and,

logically, nonobscene sexually explicit material may be

subject to forfeiture.

In fact, in response to a prior restraint challenge

in Arcara v. Cloud Books, Inc., the Court

Stated:

[UJnlike the symbolic draft card burning in

O’Brien, the sexual activity carried on in this

case manifests absolutely no element of protected

expression. In Paris ... , we underscored

the fallacy of seeking to use the First Amendment

as a cloak for obviously unlawful public sexual

conduct by the diaphanous device of attributing

age on expressive attributes to that conduct.

irst Amendment values may not be invoked by

merely linking the words "sex" and "books."

CONCLUSION

For the foregoing reasons, CLD respectfully urges

affirm the judgment of the United States

this Court to

Court of Appeals for the Ninth Circuit in this case.

curiam); Bantam Books, Inc. v. Sullivan, 372 US. 58,

70 (1963), does not absolutely prohibit prior

restraints. Times Film Corp. v. City of Chicago, 365

U.S. 858 (1961); Near v. Minnesota, 283 U.S. at 716.

29 Capital Broadcasting Co. v. Kleindienst, 405

U.S. 1000 (1972), aff’'g mem. 333 F.Supp. 582

(D.D.C. 1971).

WE Cc. v. Pacifica Foundation, 438 US. at 744

(plurality opinion).

92478 U.S. 697, 705 (1986).

Respectfully submitted,

Wendell R. Bird

David J. Myers

Timothy W. Townsend

Bird & Associates

1150 Monarch Plaza

3414 Peachtree Road, N.E.

Atlanta, Georgia 30326

(404) 264-94

“Counsel of Record

Attorneys for Amicus

Curiae