Pornography Case Judge Rebukes Panel

A federal judge Thursday rebuked Atty. Gen. Edwin Meese III’s pornography commission on the eve of publication of its final report, ruling that the controversial panel may not publish a list of distributors of allegedly pornographic material.

U.S. District Judge John Garrett Penn, deciding a civil lawsuit filed by Playboy Enterprises and others, issued a preliminary injunction that he said would preserve “the lawful publication, distribution and sale of constitutionally protected materials.”

The controversial commission was appointed by Meese in March, 1985, to “determine the nature, extent and impact on society of pornography” and to make recommendations on how to combat it. The ruling could lend substantial support to critics who oppose the commission on grounds that the panel has embarked on a moral crusade, rather than addressing a legal issue, and that it is trying to establish a widely disputed link between pornography and violence.

Penn criticized the commission for sending a threatening letter last February to the Southland Corp. and other companies it alleged were distributors of obscene materials. He made his order in response to a lawsuit filed May 16 by Playboy Enterprises Inc., the American Booksellers Assn. and the Council for Periodical Distributors Assns.

Directed against Meese, the 11 members of the commission and Alan E. Sears, its executive director, the lawsuit sought to prevent the panel from disseminating an alleged “blacklist” of companies that the Rev. Donald Wildmon had identified in commission testimony in Los Angeles. Those companies were accused of purveying pornography because they sold Playboy or Penthouse magazines or adult video cassettes.

Four months after the testimony of Wildmon, who is executive director of the National Federation of Decency, the commission decided to write the corporations he named. Ultimately, the Southland Corp.’s 7-Eleven convenience stores, one of Wildmon’s targets, announced that it was abandoning the sale of Playboy, Penthouse and other adult magazines.

Prohibits ‘Blacklisting’

Penn’s decision prohibits Meese and the commission from “intentionally interfering, through blacklisting, through letters to, or other intimidation of, distributors or retailers, or through other unlawful practices, with the lawful publication, distribution and sale of constitutionally protected materials.”

In response to Penn’s order, Sears said that the commission had written Southland and other companies only out of “a sense of fairness” to those accused by Wildmon.

“There was never a blacklist. That was a figment of someone’s imagination,” Sears said in an interview. “The judge has essentially asked us not to publish such a list, and nobody was going to do that in the first place.”

‘An Implied Threat’

However, Penn ruled that “serious constitutional questions” were raised by the Sears letter, which he said was “based on the testimony of one witness,” Wildmon, and “does appear to contain an implied threat to the addressees.”

The letter, a copy of which was included with the lawsuit, said that the panel has “received testimony alleging that your company is involved in the sale or distribution of pornography, (and) the commission has determined that it would be appropriate to allow your company an opportunity to respond to the allegations prior to drafting its final report’s section on identified distributors.”

The letter added that “failure to respond will necessarily be accepted as an indication of no objection” to the allegations.

Pornography Not Defined

Penn held that the letters “exceeded the objectives and scope of the commission” and “were vague, in the sense that they did not define pornography.” He added that the plaintiffs, particularly Playboy, “clearly” suffered financial loss as well as an abridgement of their First Amendment rights.

Sears said that the commission intends to publish its final report next Wednesday without naming any distributors. Penn ordered the commission to send another letter to all companies on the original list, advising them that the first letter was being withdrawn as well as “the warning contained therein.”

David Ogden, an attorney for Playboy, said: “We are delighted by the judge’s decision. The court has found . . . that the government cannot go around intimidating people from publishing just because someone calls something pornographic.”