CCP 11-16-1995 - Laserfiche WebLink

Home Browse Search

3a!.<5Q I I It has been argued that a RICO or forfeiture statute based on obscenity crime -I violations threatens to "chill protected speech" because it would permit prosecutors to seize non-obscene materials from distributors convicted of violating the obscenity - statute. American Civil liberties Union, Pollutinq The Censorship Debate: A Summary I And Critique Of The Final Report Of The Attorney General's Commission On Pornoqraphy at 116-117 (1986). I However, a narrow majority of the United States Supreme Court recently held that . there is no constitutional bar to a state's inclusion of substantive obscenity violations among the predicate offenses for its RICO statute. Sappenfield v. Indiana, 57 U.S.LW. 4180,4183-4184 (February 21, 1989). The Court recognized that "any form of criminal I obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not I obscene." Id. at 4184. But the Court ruled that, "the mere assertion of some possible self-censorship resulting from a statute is not enough to render an anti-obscenity law I unconstitutional under our precedent." Id. The Court specifically upheld RICO provisions which increase penalties where there is a pattern of multiple violations of obscenity laws. e. However, in a companion case, the Court also invalidated a pretrial seizure of a I bookstore and its contents after only a preliminary finding of "probable cause" to believe that a RICO violation had occurred. Fort Wayne Books, Inc. v. Indiana, 57 . U.S.LW. 4180, 4184-4185 (February 21, 1989). The Court explained there is a rebuttable presumption that expressive materials are protected by the First Amendment. That presumption is not rebutted untii the claimed justification for seizure . of materials, the elements of a RICO violation, are proved in an adversary prloceeding. Id. at 4185. I The Court did not specifically reach the fundamental question of whether seizure of . the assets ofa sexually oriented business such as a bookstore is constitutionally permissible once a RICO violation is proved. The Court explained: I [F]or the purposes of disposing of this case, we assume without deciding that bookstores and their contents are forfeitable (like other property . -26- -. .