Pornography Case to Test Federal Racketeering Law

In October, 1991, government agents confiscated more than 100,000 books, magazines and videotapes from several stores in Minneapolis and hauled them away to be burned. It was the final act in a war waged by federal prosecutors against a 73-year-old distributor of pornographic materials.

For years, Ferris Alexander had operated his chain of adult bookstores and movie theaters in the Twin Cities area largely ignored by local prosecutors. But thanks to the efforts of Sen. Jesse Helms (R-N.C.) and ex-Atty. Gen. Edwin Meese III, U.S. attorneys got new legal weapons to attack him.

First, federal prosecutors indicted Alexander based on 13 books and tapes that were purchased at his stores. A jury concluded that seven of them were obscene. Alexander was fined $10,000 and sentenced to six years in prison, a sentence he has not challenged.

But prosecutors also invoked the anti-racketeering law, known as RICO, and had his business declared a racketeering enterprise. U.S. agents then seized the 13 stores and theaters operated by Alexander, hauling off more than three tons of materials.

Now, the U.S. Supreme Court will consider the question raised by Alexander’s appeal: Does the First Amendment permit the government to burn books that have not been proved to be obscene?

DEBATE: Civil libertarians say use of the RICO law undercuts the presumption that books and magazines are protected as free speech. If the forfeiture order is upheld in Alexander’s case, they say, all sellers of sexually oriented material had better beware.

“If you are a mom-and-pop store that rents mostly Disney tapes and a small percentage of ‘adult’ tapes, your whole inventory could be forfeited if you sell two tapes that are found to be unlawful,” said Bruce Ennis, a Washington attorney who filed a brief on behalf of the American Assn. of Publishers and the American Library Assn. urging the justices to declare sweeping forfeiture orders unconstitutional.

But anti-pornography activists applaud the effort.

“This is the best weapon law enforcement has ever had to go after the purveyors of obscenity,” said Gene Malpas, who filed a brief supporting the government’s position.

BACKGROUND: Through most of American history, forfeiture orders were deemed unduly harsh. Lawbreakers were punished, but assets weren’t seized.

That began to change in 1970, when Congress enacted the Racketeer Influenced and Corrupt Organizations (RICO) Act. It gave prosecutors power to attack organized crime by seizing businesses infiltrated by the mob.

RICO and subsequent forfeiture laws soon became a key weapon in the war on drugs, and in 1984, Helms won approval to extend the law to cover obscenity. As a result, the sale of two or more items that were later deemed obscene gave federal agents the power to seize an entire business, even if 99% of its other merchandise was legal.

In 1986, Meese’s controversial national commission on pornography recommended that prosecutors use the amended RICO law to “literally put pornographers out of business.”

So far, RICO has proved to be spectacularly successful. In one Virginia case, after a jury found videotapes worth only $105 obscene, the government seized goods worth more than $1 million from a chain of stores.

OUTLOOK: The justices will hear arguments in the Minnesota case (Alexander vs. U.S., 91-1526) on Tuesday.

Opposition to the seizures already has come from the U.S. 9th Circuit Court of Appeals, which ruled that such sweeping actions violate the First Amendment. Yet the current high court has rarely overturned a criminal conviction based on an alleged violation of the Constitution.

However, the First Amendment has been something of an exception. During its last term the justices unanimously declared unconstitutional the so-called “Son of Sam” laws that gave prosecutors the right to seize royalties from criminals who sell their stories to publishers or movie makers.

Based on such rulings, First Amendment advocates remain optimistic that use of the RICO law in pornography cases will be reined in.