10-18-1999 Planning Packet - Laserfiche WebLink

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• • It has been argued that a RICO or forfeiture statute based on obscenity crime 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 Uberties Union, Pollutino The Censorship Debate: A Summary And_ Critique Of The Final Report Of The Attorney General ’s Commissinn rin Pornography at 116-117 (1966}, 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. Sapoenfield v. Indiana. 57 U.S.LW. 4180, 4183-4184 (February 21,1989). The Court recognized that "any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene.* Id. at 41M. But the Court ruled that, *the mere assertion of some possible self-censorship resulting from a statute Is not enough to render an anti-obscehity I^ V® unconstitutional under our precedenL* Id. The Court specifically upheld RICO '*'^ provisions which increase penalties where there is a pattern of multiple violations of obscenity laws. However, In a companion case, the Court also Invalidated a pretrial seizure of a*'’ ^ bookstore and its contents after only a preliminary finding of "probable cause" to believe that a RICO violation had occurred. Fort Wavne Books. Inc, y. Indiana. 57 * • U.S.LW. 4180, 4184-4185 (Februaiy 21, 1989). The Court explained there Is a ' • rebuttable presumption that expressive materials are protected by the First T" Amendment That presumption is not rebutted until the claimed justification for seizure of materials, the elements of a RICO violation, are proved in an adversary prbceeding Id. at 4185. The Court did not specifically reach the fundamental question of whether seizure of the assets of a sexually oriented business such as a bookstore is constitutionally permissible once a RICO violation is proved. The Court explained: [F]or the purposes of disposing of this case, we assume without deciding that bookstores and their contents are forfeitable (like other property *••> •26- i; J