2 Court Rulings Curb Fight on Pornography : Justices Bar Store Closures, Pandering Charges but Allow Sentences on Anti-Racketeering Laws

The Supreme Court on Tuesday rejected two novel and sweeping attacks on pornography, unanimously ruling that police may not padlock stores that sell obscene books and prohibiting California prosecutors from charging X-rated film makers with pandering.

But, while those decisions deprive prosecutors of powerful weapons in their war against pornography, the high court also ruled that bookstore owners convicted of selling obscenity can be tried and sentenced to as much as 10 years in prison under federal and state anti-racketeering laws.

Without Trial

Rather than trying to convince a jury that a book or movie is obscene, prosecutors in Indiana and Los Angeles had sought to shut down adult bookstores and X-rated movie productions without ever going to trial.

But the Supreme Court concluded that the free speech clause of the First Amendment does not permit short-circuiting of the legal process. The result is that prosecutors must prove a book or film is obscene--a tough task in many cities--before they can take action against its producer or distributor.

In the pandering case, the justices without comment rejected a plea by Los Angeles Dist. Atty. Ira B. Reiner to reinstate the conviction of an adult film maker who had hired actors to engage in sex acts.

But the justices permitted prosecutors to use the tough provisions of anti-racketeering laws on a 6-3 vote in the Indiana case. The harsh penalties, contained in state and federal anti-racketeering laws, have been applied to obscene books or films only in the last few years. The conservative court majority said that it was not troubled by the idea that the threat of racketeering charges could promote censorship.

“Some booksellers will practice self-censorship and remove (non-obscene) materials from their shelves,” Justice Byron R. White conceded. “But deterrence of the sale of obscene materials is a legitimate end of state anti-obscenity laws.”

But his opinion also sidestepped a key question. Can a bookstore owner, once convicted of selling two or more obscene books, be labeled a racketeer and thus lose his entire store, including thousands of books that are not obscene? Or could a videotape dealer, convicted of renting two obscene films, be forced to forfeit his entire business?

While a pretrial seizure of books or films is unconstitutional, White said, the court would reserve judgment on whether a sweeping post-trial forfeiture order is also unconstitutional.

Closely Watched

The Indiana case (Ft. Wayne Books vs. Indiana, 87-470) has been closely watched since former Atty. Gen. Edwin Meese III proclaimed that the racketeering laws offered a powerful new weapon with which to attack obscenity.

The 1970 Racketeer-Influenced and Corrupt Organizations Act, known as RICO, is feared by businesses--both legal and illegal--because it permits the government to seize any enterprise found to engage in two or more acts of “racketeering.”

At first, racketeering was limited to crimes such as murder and arson, but in 1984 Congress amended the law to include “obscenity” as one of the offenses. Indiana was the first state to use the RICO law to attack pornography. Since then, 18 others, including California, have followed suit.

In 1984, police in Ft. Wayne picked up several allegedly obscene publications in a local adult bookstore. Later the same day, a prosecutor got a court order to padlock the store and seize everything in it, including cash registers and furniture. Two other outlets owned by the same people also were shut down. The case against the store owners has never come to trial, although the Indiana courts upheld the padlocking and the seizure.

All nine justices said that such a pretrial seizure is unconstitutional under the First Amendment. But the six-member majority said that the state can use the RICO law to prosecute bookstore owners for selling obscene materials. The dissenters, Justices John Paul Stevens, William J. Brennan Jr. and Thurgood Marshall, said that the First Amendment forbids such prosecutions.

The mixed ruling gave both prosecutors and attorneys for the bookstores something to cheer.

William Daily, chief counsel for the Indiana attorney general, said that RICO “gives us a valuable tool. This says you can’t hide your criminal activity (selling obscene books) behind the fact that you are a bookstore.”

John H. Weston, a Beverly Hills attorney who defended the booksellers, said that he is “pleased the court rejected this attempt to avoid First Amendment scrutiny by labeling something as racketeering.”

In the California case, Los Angeles prosecutors in 1983 charged X-rated film maker Harold Freeman with pandering for having hired actors to perform sex acts before the cameras.

State law makes it a felony “to procure another person for prostitution,” which in turn is defined as “any lewd act between persons for money.”

Industry Stunned

Freeman was found guilty of five counts of pandering. In 1987, a state appellate court in Los Angeles upheld the conviction in a ruling that stunned California’s large adult film-making industry. Some Hollywood lawyers pointed out that this reading of the pandering law could make it a crime to hire actors for any sexually explicit scenes in plays or major motion pictures.

But last August, the state Supreme Court unanimously reversed the conviction. The opinion by Justice Marcus M. Kaufman said that the state’s pandering and prostitution laws were not intended to cover actors. Moreover, applying them to actors and film makers “would infringe on First Amendment values,” he wrote.

Reiner, appealing to the U.S. Supreme Court, complained that the state justices had used the U.S. Constitution to give X-rated film makers a “broad immunity” under California’s pandering laws.

But the justices dismissed the appeal (California vs. Freeman, 88-1054), apparently on the grounds that Kaufman’s opinion was based on a reading of state law, not the U.S. Constitution.

In other actions, the court:

--Ruled 6 to 3 that states may not exempt religious publications from general sales taxes on books, newspapers and magazines. The splintered majority, in three separate opinions, said that such exemptions amount to favoritism for religion (Texas Monthly vs. Bullock, 87-1245).

--Cleared the way for a trial in a $90-million slander suit against TV evangelist Jimmy Swaggart brought by rival evangelist Marvin Gorman. Swaggart contended that the Constitution does not permit the courts to interfere with church business, but justices rejected his appeal without comment (Swaggart vs. Adler, 88-1080).

--Agreed to decide whether the City of Los Angeles must pay damages to a taxi company that went out of business after a 1981 labor dispute. Three years ago, the high court said that the City Council had acted illegally when it refused to renew the franchise of the Golden State Transit Corp. because of its labor troubles. But afterward, an appeals court said the company was due only the right to win back its franchise. Calling this a “hollow victory” because it had already ceased operation, Golden State appealed again seeking damages. The case (Golden State Transit vs. Los Angeles, 88-840) will be heard in the fall.

--Agreed to hear next fall two cases (Michigan vs. Harvey, 88-512, and James vs. Illinois, 88-6075) testing the limits of the so-called exclusionary rule, under which illegally obtained evidence may not be used at a trial.