Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989)

JUSTICE BLACKMUN, concurring in part and concurring in the judgment.

Although I agree with JUSTICE O’CONNOR in her conclusion that the Sappenfield case, No. 87-614, is not properly here under 28 U.S.C. § 1257, a majority of the Court has decided otherwise. This majority on the jurisdictional issue, however, is divided 4 to 3 on the merits of the question presented in Sappenfield: whether the distribution of constitutionally obscene materials may be punished as predicate acts of a racketeering offense. Disposition of the case deserves -- if not requires -- a majority of participating Justices. See Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

Thus, notwithstanding my dissenting jurisdictional view, I feel obligated to reach the merits in Sappenfield.See United States v. Vuitch, 402 U.S. 62, 97-98 (1971) (separate statement). Because I agree that what may be punished under Miller v. California, 413 U.S. 15 (1973), may form the basis of a racketeering conviction, I join JUSTICE WHITE’s opinion (except for Part II-A) and the judgment of the Court.

1. Each of the cases the Court cites to demonstrate that this proposition is "well established," ante at 54, n. 4, was decided by a 5-4 vote. The dissenters in Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957), were Chief Justice Warren and Justices Black, Douglas, and BRENNAN; in Miller v. California, 413 U.S. 15 (1973), Justices Douglas, BRENNAN, Stewart, and MARSHALL dissented. In Splawn v. California, 431 U.S. 595 (1977), and Pinkus v. United States, 436 U.S. 293 (1978), Justices BRENNAN, Stewart, MARSHALL, and STEVENS expressed the opinion that criminal prosecution for obscenity-related offenses violates the First Amendment.

In 1970, moreover, the President’s Commission on Obscenity and Pornography advocated that laws regulating adults’ access to sexually explicit materials be repealed. Report of The Commission on Obscenity and Pornography 51-56 (1970). The most recent federal pornography commission disagreed with this conclusion, yet acknowledged that scholarly comment generally agrees with the dissenters:

Numerous people, in both oral and written evidence, have urged upon us the view that the Supreme Court’s approach is a mistaken interpretation of the First Amendment. They have argued that we should conclude that any criminal prosecution based on the distribution to consenting adults of sexually explicit material, no matter how offensive to some, and no matter how hard-core, and no matter how devoid of literary, artistic, political, or scientific value, is impermissible under the First Amendment.

We have taken these arguments seriously. In light of the facts that the Supreme Court did not in Roth [v. United States, 354 U.S. 476 (1957),] or since unanimously conclude that obscenity is outside of the coverage of the First Amendment, and that its 1973 rulings [Miller v. California, 413 U.S. 15; Paris Adult Theatre I v. Slaton, 413 U.S. 49; Kaplan v. California, 413 U.S. 115; United States v. 12,200-Ft. Reels of Film, 413 U.S. 123; United States v. Orito, 413 U.S. 139] were all decided by a scant 5-4 majority on this issue, there is no doubt that the issue was debatable within the Supreme Court, and thus could hardly be without difficulty. Moreover, we recognize that the bulk of scholarly commentary is of the opinion that the Supreme Court’s resolution of and basic approach to the First Amendment issues is incorrect.

1 Attorney General’s Commission on Pornography, Final Report 260-261 (July 1986) (hereinafter Report).

2. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986).

3. See Splawn v. California, 431 U.S. at 602 (STEVENS, J., dissenting); Commonwealth v. American Booksellers Assn., Inc., 236 Va. 168, 372 S.E.2d 618 (1988), answering questions certified in 484 U.S. 383 (1988).

4. See New York v. Ferber, 458 U.S. 747 (1982); Ginzberg v. New York, 390 U.S. 629 (1968).

5. See Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Miller v. California, 413 U.S. at 18.

6. See Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976).

7. The Indiana obscenity law underlying these cases provides that a

person who knowingly or intentionally

(1) sends or brings into Indiana obscene matter for sale or distribution; or

(2) offers to distribute, distributes, or exhibits to another person obscene matter;

commits a class A misdemeanor.

Ind.Code § 35-49-3-1 (1988), enacted by 1983 Ind.Acts 311, § 33, to replace identically worded § 35-30-10.1-2, which had been repealed by 1983 Ind.Acts 311, § 49. Indiana punishes Class A misdemeanors with fines of up to $5,000 and imprisonment of up to one year. Id. § 35-50-3-2.

8. Indiana Code § 35-45-6-1, entitled "Racketeer Influenced and Corrupt Organizations," provides in part:

"Pattern of racketeering activity" means engaging in at least two (2) incidents of racketeering activity that have the same or similar intent, result, accomplice, victim, or method of commission, or that are otherwise interrelated by distinguishing characteristics that are not isolated incidents. . . .

"Racketeering activity" means to commit, to attempt to commit, or to conspire to commit . . . a violation of IC 35-49-3; murder (IC 35-42-1-1); battery as a Class C felony (IC 35-42-2-1); kidnapping (IC 35-42-3-2); child exploitation (IC 35-42-4-4); robbery (IC 35-42-5-1); arson (IC 3543-1-1); burglary (IC 35-43-2-1); theft (IC 35-43-4-2); receiving stolen property (IC 35-43-4-2). . . .

This enumeration of predicate offenses inexplicably omits a parenthetical description of Ind.Code § 35-49-3. That latter statute is Indiana’s current obscenity law, which makes it a misdemeanor to disseminate or distribute matter that is obscene or harmful to minors, or to present a performance that is obscene or harmful to minors.

9. The term "enterprise" is defined in both the Racketeer Influenced and Corrupt Organizations (RICO) Act and the Civil Remedies for Racketeering Activity (CRRA) Act to include a sole proprietorship and a corporation. See Ind.Code §§ 35-45-6-1, 34-4-30.5-1 (1988). Thus, each of the stores at which obscenity offenses allegedly occurred is an enterprise within the meaning of Indiana RICO. Cf. Alyers v. State, 489 N.E.2d 83, 89 (Ind.App.1986) (corporation is an enterprise within the meaning of State RICO Act).

10. Indiana Code § 35-45-6-2(a) (1988) provides that a

person

(1) who has knowingly or intentionally received any proceeds directly or indirectly derived from a pattern of racketeering activity, and who uses or invests those proceeds or the proceeds derived from them to acquire an interest in real property or to establish or to operate an enterprise;

(2) who through a pattern of racketeering activity, knowingly or intentionally acquires or maintains, either directly or indirectly, an interest in or control of real property or an enterprise; or

(3) who is employed by or associated with an enterprise, and who knowingly or intentionally conducts or otherwise participates in the activities of that enterprise through a pattern of racketeering activity;

commits corrupt business influence, a Class C felony.

11. Under Indiana law, a person convicted of a Class C felony such as this is subject to a $10,000 fine and to a term of five years, which may be increased to eight or reduced to two years. Ind.Code § 35-50-2-6 (1988).

12. Eschewing criminal proceedings, the prosecutor in No. 87-470 brought a civil action alleging a RICO violation and seeking the gamut of relief available under the CRRA Act. App. 7-49. The trial court found probable cause to believe that the Indiana RICO statute had been violated and the bookstore padlocked and its inventory, furnishings, and other contents seized. Petitioner in No. 87-470 appealed on a number of constitutional grounds. Consolidating petitioner’s case with one originating in Indianapolis, the Indiana Court of Appeals held that the relevant RICO/CRRA provisions violate the First and Fourteenth Amendments to the Constitution. 4447 Corp. v. Goldsmith, 479 N.E.2d 578 (1985).

A few months after this opinion issued, a trial judge granted the motion of petitioners in No. 87-614 to dismiss the two RICO charges against them on the ground that Indiana’s RICO statute is unconstitutionally vague. The Indiana Supreme Court subsequently reversed the Indiana Court of Appeals in No. 87-470, sustaining the RICO/CRRA statutes and the actual pretrial seizures. 4447 Corp. v. Goldsmith, 504 N.E.2d 559 (1987). The Indiana Appellate Court then reversed the dismissal of the RICO counts against petitioners in No. 87-614. State v. Sappenfield, 505 N.E.2d 504 (1987).

13. The Indiana Supreme Court explained:

We believe the overall purpose of the RICO statute is as applicable to obscenity violations as it is to the other enumerated predicate offenses which have no conceivable First Amendment ramifications. Thus we cannot agree with either appellants or the Court of Appeals that the purpose of the Indiana RICO/CRRA scheme, as it pertains to the predicate offense of obscenity, is to restrain the sale or distribution of expressive materials. It is irrelevant whether assets acquired through racketeering activity are obscene or not. They are subject to forfeiture if the elements of a pattern of racketeering activity are shown. The other CRRA remedies, such as license revocation, are also available, regardless of the nature of the racketeering enterprise.

504 N.E.2d at 564.

[T]he purpose of the forfeiture provisions is totally unrelated to the nature of the assets in question. The overall purpose of the anti-racketeering laws is unequivocal, even where the predicate offense alleged is a violation of the obscenity statute. The remedy of forfeiture is intended not to restrain the future distribution of presumptively protected speech, but rather to disgorge assets acquired through racketeering activity. Stated simply, it is irrelevant whether assets derived from an alleged violation of the RICO statute are or are not obscene.

Id. at 565.

In sum, these actions seeking various CRRA remedies were instituted in an attempt to compel the forfeiture of the proceeds of alleged racketeering activity, and not to restrain the future distribution of expressive materials. We hold that the RICO/CRRA statutes as they pertain to the predicate offense of obscenity do not violate the First and Fourteenth Amendments of the United States Constitution.

Id. at 565-566.

14. See, e.g., Marks v. United States, 430 U.S. 188, 198 (1977) (STEVENS, J., concurring in part and dissenting in part); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 85 (1973) (BRENNAN, J., joined by Stewart and MARSHALL, JJ., dissenting).

Ironically, the legal test for determining the existence of a pattern of racketeering activity has been likened to

Justice Stewart’s famous test for obscenity -- "I know it when I see it" -- set forth in his concurrence in Jacobellis v. Ohio, 378 U.S. 184, 197 [(1964)].

Morgan v. Bank of Waukegan, 804 F.2d 970, 977 (CA7 1986) (citing Papai v. Cremosnik, 635 F.Supp. 1402, 1410 (ND Ill.1986)).

15. It long has been

my conviction that government may not constitutionally criminalize mere possession or sale of obscene literature, absent some connection to minors or obtrusive display to unconsenting adults.

Pope v. Illinois, 481 U.S. 497, 513 (1987) (STEVENS, J., dissenting). See Smith v. United States, 431 U.S. 291, 311, 315-316 (1977) (STEVENS, J., dissenting). See also Ward v. Illinois, 431 U.S. 767, 777-782 (1977) (STEVENS, J., dissenting); Splawn v. California, 431 U.S. at 602 (STEVENS, J., dissenting); Marks v. United States, 430 U.S. at 198 (STEVENS, J., concurring in part and dissenting in part). Cf. Pinkus v. United States, 436 U.S. at 305 (STEVENS, J., concurring) (in the absence of Court’s precedents, would not sustain federal obscenity law).

16. 504 N.E.2d at 565.

17. Id. at 564.

18. As Professor Henkin explained, American obscenity laws are "rooted in this country’s religious antecedents, of governmental responsibility for communal and individual `decency’ and `morality.’" Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Colum.L.Rev. 391 (1963). He continued:

Communities believe, and act on the belief, that obscenity is immoral, is wrong for the individual, and has no place in a decent society. They believe, too, that adults as well as children are corruptible in morals and character, and that obscenity is a source of corruption that should be eliminated. Obscenity is not suppressed primarily for the protection of others. Much of it is suppressed for the purity of the community and for the salvation and welfare of the "consumer." Obscenity, at bottom, is not crime. Obscenity is sin.

Id. at 395.

19. In proposing the addition of state and federal obscenity violations as predicate offenses under Federal RICO, 18 U.S.C. § 1961 et seq., Senator Helms stated:

[W]e are experiencing an explosion in the volume and availability of pornography in our society. Today it is almost impossible to open mail, turn on the television, or walk in the downtown areas of our cities, or even in some suburban areas, without being accosted by pornographic materials. The sheer volume and pervasiveness of pornography in our society tends to make adults less sensitive to the traditional value of chaste conduct and leads children to abandon the moral values their parents have tried so hard to instill in them.

* * * *

. . . Surely it is not just coincidential [sic] that, as [sic] a time in our history when pornography and obscene materials are rampant, we are also experiencing record levels of promiscuity, veneral [sic] disease, herpes, acquired immune deficiency syndrome (AIDS), abortion, divorce, family breakdown, and related problems. At a minimum, pornography lowers the general moral tone of society and contributes to social problems that were minimal or nonexistent in earlier periods of our history.

130 Cong.Rec. 844 (1984). The amendment was enacted in the Act of Oct. 12, 1984, Pub.L. 98-473, 98 Stat. 2143, codified at 18 U.S.C. § 1961(1) (1982 ed., Supp. IV).

20.

To the extent, therefore, that regulation of pornography constitutes an abridgment of the freedom of speech, or an abridgment of the freedom of the press, it is at least presumptively unconstitutional. And even if some or all forms of regulation of pornography are seen ultimately not to constitute abridgments of the freedom of speech or the freedom of the press, the fact remains that the Constitution treats speaking and printing as special, and thus the regulation of anything spoken or printed must be examined with extraordinary care. For even when some forms of regulation of what is spoken or printed are not abridgments of the freedom of speech, or abridgments of the freedom of the press, such regulations are closer to constituting abridgments than other forms of governmental action. If nothing else, the barriers between permissible restrictions on what is said or printed and unconstitutional abridgments must be scrupulously guarded.

1 Report, at 249-250.

21. The videotape dealers’ association, for example, reports that in the "three-quarters of the nation’s video stores carry[ing] adult titles," that material, often to be viewed by private individuals on their own video cassette recorders, "accounts for about 13% of their business, valued at $250 million annually." Groskaufmanis, What Films We May Watch: Videotape Distribution and the First Amendment, 136 U.Pa.L.Rev. 1263, 1273, n. 75 (1988).

The Attorney General’s Commission on Pornography quotes Geoffrey R. Stone, now dean of the University of Chicago Law School, as follows:

"[T]he very fact . . . that there is a vast market in our society for sexually explicit expression suggests that, for many people, this type of speech serves what they believe to be, it may be amusement, it m[a]y be containment, it may be sexual stimulation, it may be fantasy, whatever it is, many of us believe that this expression is to our own lives, in some way, valuable. That value should not be overlooked."

2 Report, at 1269. See also Marks v. United States, 430 U.S. at 198 (STEVENS J., concurring in part and dissenting in part) ("However distasteful these materials are to some of us, they are nevertheless a form of communication and entertainment acceptable to a substantial segment of society; otherwise, they would have no value in the marketplace").

22. The Attorney General’s Commission on Pornography highlighted this fact as follows:

A central part of our mission has been to examine the question whether pornography is harmful. In attempting to answer this question, we have made a conscious decision not to allow our examination of the harm question to be constricted by the existing legal/constitutional definition of the legally obscene.

1 Report, at 299.

As a result, our inquiry into harm encompasses much material that may not be legally obscene, and also encompasses much material that would not generally be considered "pornographic" as we use that term here.

Id. at 302.

To a number of us, the most important harms must be seen in moral terms, and the act of moral condemnation of that which is immoral is not merely important, but essential. From this perspective, there are acts that need be seen not only as causes of immorality, but as manifestations of it. Issues of human dignity and human decency, no less real for their lack of scientific measurability, are for many of us central to thinking about the question of harm. And when we think about harm in this way, there are acts that must be condemned not because the evils of the world will thereby be eliminated, but because conscience demands it.

Id. at 303.

23.

Drastic methods to combat [organized crime] are essential, and we must develop law enforcement measures at least as efficient as those of organized crime.

116 Cong.Rec. 35199 (1970) (remarks of Rep. Rodino). See also Russello v. United States, 464 U.S. 16, 26-29 (1983); United States v. Turkette, 452 U.S. 576, 586-593 (1981).

24. Cf. United States v. Elliott, 571 F.2d 880, 903 (CA5) ("the [Federal] RICO net is woven tightly to trap even the smallest fish"), cert. denied, 439 U.S. 953 (1978).

25. The Court of Appeals of Indiana made this observation, 479 N.E.2d at 601:

[T]he state concedes that the obscenity of the seized inventories of books, magazines, and films is irrelevant and need not even be alleged. This argument reflects an accurate reading of the statutes, but also reveals the deeply-flawed nature of the regulatory scheme as a response to obscenity. May avant-garde booksellers and theaters be padlocked and forfeited to the state upon a showing that, alongside literary, political, and cinematic classics, they have twice disseminated controversial works subsequently adjudged to be obscene? . . . [T]he guarantees of the First Amendment mean nothing if the state may arrogate such discretion over the continued existence of bookstores and theaters.

The State Supreme Court did not deny that the RICO/CRRA Acts permitted that result, but rather professed faith that prosecutors would not abuse the power given them under the statutes. 504 N.E.2d at 565, rev’g 479 N.E.2d 578 (Ind.App.1985).

Even the suppression only of sex-oriented materials on the borderline between protected and unprotected speech might remove a vast number of materials from circulation. See Dietz & Sears, Pornography and Obscenity Sold in "Adult Bookstores": A Survey of 5132 Books, Magazines, and Films in Four American Cities, 21 U.Mich.J.L.Ref. 7, 42 (1987-1988) (36% of materials in adult bookstores surveyed would be obscene "in the eyes of a juror with sexually liberal attitudes and values," while 100% would be obscene "in the eyes of those with sexually traditional attitudes and values").

26. In five of the eight reported opinions reviewing prosecutions pursuant to Indiana’s RICO/CRRA statutes, the predicate offenses are obscenity violations. Sappenfield v. Indiana, 574 F.Supp. 1034 (ND Ind.1983) (dismissing for lack of standing suit by petitioner in No. 87-614 seeking to prevent prosecutor in LaPorte County from adding civil sanctions to criminal RICO prosecution already under way there); 4447 Corp. v. Goldsmith, 504 N.E.2d 559 (Ind.1987) (case below), rev’g 479 N.E.2d 578 (Ind.App.1985) (Allen and Marion Counties); Studio Art Theatre of Evansville, Inc. v. State, 530 N.E.2d 750 (Ind.App.1988) (upholding RICO convictions in Vanderburgh County, based on alleged sale of movies harmful to minors); State v. Sappenfield, 505 N.E.2d 504 (Ind.App.1987) (Howard County). See also J.N.S., Inc. v. Indiana, 712 F.2d 303 (CA7 1983) (dismissing for lack of standing Indianapolis distributors’ suit challenging constitutionality of CRRA).

The first Federal RICO prosecution based on obscenity violations occurred in United States v. Pryba, Crim. No. 87-00208-A (ED Va., Nov. 10, 1987). After the District Court had rejected constitutional challenges to the inclusion of obscenity offenses in the Federal RICO statute, 674 F.Supp. 1504 (ED Va.1987), a jury found defendants

"guilty of interstate distribution of $105.30 worth of obscene material and decided that Dennis Pryba’s three Washington, D.C. area hardcore bookstores and eight videotape clubs [valued at $1 million] were forfeitable under the terms of the RICO statute."

Eggenberger, RICO vs. Dealers in Obscene Matter: The First Amendment Battle, 22 Colum.J.L. & Soc.Probs. 71 (1988) (quoting Hayes, A Jury Wrestles with Pornography, American Lawyer 96, 97 (Mar.1988)).

27.

Frequently the most probative evidence of intent will be objective evidence of what actually happened, rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation.

Washington v. Davis, 426 U.S. 229, 253 (1976) (STEVENS, J., concurring). See also Near v. Minnesota ex. rel. Olson, 283 U.S. 697, 708 (1931) ("In passing upon constitutional questions . . the statute must be tested by its operation and effect").

28. Indiana is far from the only governmental entity to have moved against undesirable sexually explicit materials in this manner. Of 26 States besides Indiana that have passed laws patterned after the Federal RICO statute, 14 include violations of obscenity laws as predicate offenses upon which a RICO-type prosecution may be based. Ariz.Rev.Stat.Ann. § 13-2301(D)(4)(u) (Supp.1988-1989); Colo.Rev.Stat. § 1817-103(5)(b)(VI) (1986); Del.Code Ann., Tit. 11, §§ 1502(9)(a), (9)(b)(7) (1987); Fla.Stat. § 895.02(1)(a)(27) (1987); Ga.Code Ann. § 16-14-3(3) (A)(xii) (1988); Idaho Code § 18-7803(8) (Supp.1988); N.J.Stat.Ann. § 2C:41-1(e) (West Supp.1988-1989); N.C.Gen.Stat. § 75D-3(c)(2) (1987); N.D.Cent.Code § 12.1-06.1-01(2)(e)(17) (Supp.1987); Ohio Rev.Code Ann. §§ 2923.31(1)(1), (1)(2) (1987); Okla.Stat., Tit. 22, § 1402(10)(v) (Supp.1988); Ore.Rev.Stat. §§ 166.715(6)(a)(T), (6)(b) (1987); Utah Code Ann. § 76-10-1602(4)(fff)-(iii), (zzz) (Supp.1988); Wash.Rev.Code § 9A.82.010 (14)(s) (Supp.1988).

The trend toward using RICO statutes to enforce obscenity laws comports with the urgings of the Attorney General’s Commission on Pornography. 1 Report, at 435 (Recommendation "10. STATE LEGISLATURES SHOULD ENACT A RACKETEER INFLUENCED CORRUPT ORGANIZATIONS (RICO) STATUTE WHICH HAS OBSCENITY AS A PREDICATE ACT"); id. at 437 (Recommendation "15. THE DEPARTMENT OF JUSTICE AND UNITED STATES ATTORNEYS SHOULD USE THE RACKETEER INFLUENCED CORRUPT ORGANIZATION ACT (RICO) AS A MEANS OF PROSECUTING MAJOR PRODUCERS AND DISTRIBUTORS OF OBSCENE MATERIAL"); id. at 464, 498, 515. Cf. id. at 433, 465, 472, 497 (recommending that Federal and State Governments enact statutes authorizing forfeitures even if two predicate offenses cannot be proved, barring a RICO prosecution).

29. Near v. Minnesota ex rel. Olson, 283 U.S. at 718 (Hughes, C.J.) (quoting 4 Writings of James Madison 544 (1865)).

30. Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citation omitted).