# Amicus Curiae Brief — Alexander v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0257%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 544

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0257%3A15. Public record. Not legal advice.