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THE LAW IS A ASS for 08/27/2002
DOCKET ENTRY
"The Law is a Ass" Installment # 159
Originally written as installment # 141 and published in Comics Buyer's Guide issue # 761, June 17, 1988 issue
I keep fighting, because sometimes we win.
I received a letter from Mic McConnell, an attorney in Richmond, Virginia. He sent me a copy of the Virginia Supreme Court's response to the United States Supreme Court's questions from the American Booksellers case. The Virginia Supreme Court -- which realized the implications of the United States Supreme Court's questions and realized it had better restrict the law's application, if it wanted the law to withstand further constitutional challenges -- ruled that the class of books to which the "harmful to juveniles" label could be applied was so limited, it essentially included nothing more than obscenity. And it ruled that a store owner would be in full compliance with the law, if he had openly displayed the "harmful to juveniles" materials but did so with a policy forbidding juveniles from perusing the materials and enforced when a juvenile was seen perusing the materials.
A win, because this interpretation allows booksellers the widest possible latitude in displaying merchandise, so that you and I have the widest-possible latitude in choosing what we want to read.
I keep fighting, because sometimes we lose. At such times, I write to enlighten and, hopefully, to spur fellow fighters for the First Amendment to action.
The installment which follows is about one such loss. It is, perhaps, the single most important installment I have ever written. Read it. If you enjoy reading what you want to read -- not what some faceless commettee wants you to read -- read it.
And be scared.
******
THE LAW IS A ASS
Installment # 159
by
BOB INGERSOLL
This will be long. I don't apologize. It's important.
******
It was not dead. Yes, it had been wounded -- two of its rotted, spade-claw hands had been severed from their bony, chelicerate arms. But the Beast did not die.
It retreated, hunkered down in its hiding hole, and waited. It did not regenerate its old grasping claws. They had been good -- in their day -- for catching and crushing the life out of their victims, but their time had passed. The prey was bigger now, and faster. It no longer waited for the Beast to take it and grind it into the pulpy mass that made up its food stuff. The prey resisted -- it dared to fight back. It even hurt the Beast.
The Beast responded in kind. It grew a new weapon, bigger and faster. A monstrous tentacle-like arm that it could whip with a quickness that belied its size and which ended in a long, hooked talon honed to a malignant sharpness. This was not a weapon for subtlety. It was a thing to be used to mutilate, to eviscerate, to dismember; to bring a quick -- but not clean -- death.
On November 10, 1987, the Beast struck. Later what passed for a smile came to the slavering jaws of the Beast. The prey had been mutilated, eviscerated, and dismembered. The new weapon had claimed its first victims -- it was blooded.
******
I don't apologize for the melodrama of my opening. If it got your attention, it worked. And it's important. Important because I'm scared. Important because comic book stores, in fact all book stores -- in fact your right to read -- are threatened. Here's how.
Dennis and Barbara Pryba owned a small string of video stores and adult bookstores in Virginia. Theirs was not an empire, by any means. It was a simple chain of what are commonly called "Mom and Pop" stores that sold books and video tapes. What brought them to the attention of Henry Hudson, the U.S. attorney who chaired the Meese Commission on Pornography, was the fact that along with their video tapes of Superman: the Movie and Lady and the Tramp or their copies of Time and New Republic; the Prybas also carried some sexually explicit tapes and magazines that Hudson decided were obscene. He prosecuted the Prybas for four of the tapes and six magazines under the obscenity prong of RICO, the Racketeer Influenced and Corrupt Organizations Act.
On November 10, 1987, the Prybas were convicted. As a result, their business assets -- all of their business assets, not just the four tapes and six magazines found in the indictments, but also the tapes of Superman and the copies of Time -- were seized by the government and auctioned to recoup the costs of their prosecution. In addition, Dennis Pryba was sentenced to three years in prison and fined $75,000.00; Barbara Pryba was placed on three years probation and fined $200,000.00.
The Meese Commission has called RICO, "one of the strongest weapons in the prosecution arsenal."
******
RICO was enacted in 1970 as Title IX of the Organized Crime Control Act. Among its provisions, Rico made it illegal to use income derived from a pattern of racketeering activities to maintain an interest in an enterprise or to conduct or participate in the affairs of an enterprise. Rico defined an enterprise as, "any individual, partnership or corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity."
An ongoing business, such as a comic store, clearly falls within this definition. If the owner of an ongoing business continues to do business in order to stay in business, he is maintaining that enterprise. If the owner stays in business by engaging in a pattern of racketeering activities, he violates RICO.
The question, then, is this: what is a pattern of racketeering activities? RICO defined racketeering activity as any act violating state and federal criminal offenses against wire or mail fraud, kidnapping, gambling, arson, robbery, bribery, extortion, narcotics dealing, counterfeiting, and theft from interstate shipments or embezzlement from pension and welfare funds. It stated that a pattern of racketeering activity was established by two or more convictions of a racketeering activity within a ten year period.
Thus, if the owner of an ongoing business was found guilty of as few as two racketeering activities within a ten year period, he was engaged in a pattern of racketeering activities. He could not use the income earned from said pattern to maintain the business in question.
RICO provided for stiff penalizes for those who maintained an enterprise through racketeering activities. These penalties included lengthy prison terms, large fines, and forfeiture of business assets. The government could actually seize the assets used to carry out a racketeering activity -- such as the betting slips used to run a bookie joint in the back of a barber shop.
Until 1984 RICO had little application to comic book stores. In 1984, Congress modified RICO as part of the Comprehensive Crime Control Act. One change Congress made was to include obscenity offenses in its definitional list of racketeering activities.
The inclusion of obscenity in racketeering activities engendered controversy. During the Nixon administration, a federal commission studied obscenity and determined there was no conclusive proof that obscenity produced any of the evils usually attributed to it. The Nixon administration rejected, and even sought to suppress, the findings of its own commission.
Recently, the Meese Commission did conclude there was a nexus between obscenity and certain evils. However, many consider the Meese Commission's conclusion to be invalid. They point to the fact that the Meese Commission was not commissioned to determine if there was a link but was commissioned to find a link between obscenity and evil then sought the evidence it felt would prove that link.
Analytically speaking, such a study is suspect. When a certain result is sought, the evidence tending to disprove the desired result is rejected for inadequate reasons or ignored completely. It's an analytical process which produces false positives and not enough to justify shoehorning obscenity into RICO's list of racketeering activities.
Controversy also arose, because what is obscene is a matter of taste. What's considered obscene varies widely from person to person, from city to city, and from time to time. In our grandparents day, all participants in a movie bedroom scene had to be fully clothed and have at least one foot on the floor at all times, and even if the participants in question were married the bedroom had to have twin beds. In 1953, the movie The Moon is Blue was banned in several cities, because it contained the word, "virgin." Today, PG movies routinely contain frontal nudity, sexual innuendo, and the profligate wenching of James Bond.
Tastes change. And because tastes change, the business of legislating tastes through obscenity laws is murky at best and of questionable merit -- not something that should be racketeering.
Nevertheless, and despite the objections and controversy it created, Congress added obscenity to the list of racketeering activities. As of 1984, stores could be prosecuted under RICO for selling obscene materials.
Another change Congress made in RICO in 1984 was to vest the government's power to seize racketeering assets not from the time of the arrest but from the time the offense was committed. Moreover, because the forfeiture related back to the time of the offense, the government could seize not only assets used in the racketeering activity, but also assets obtained or maintained by the income derived from racketeering.
Finally, the government was given a presumption of forfeitability. It is presumed that all the assets of an enterprise engaged in a pattern of racketeering activities were maintained by income derived from racketeering and can be seized; it's up to the defendant to prove which assets were not maintained by the racketeering activity -- an impossibility unless some very complicated double bookkeeping was going on.
The practical result of the 1984 changes is that the government can seize all the assets of an enterprise engaging in a pattern of racketeering activities.
Let me put this into the simplest, starkest, and -- because of that starkness -- most frightening terms. If a comic book store is convicted twice of selling obscene comics, the government can seize all of the store's assets. Not just the copies of Omaha, the Cat Dancer or Hellblazer judged obscene. Everything in the store. The racks. The counters. The cash register. The cash. The clock on the wall. The back issue bins. The copies of Sabrina, the Teenage Witch. The T-shirts. The fifteen sided gaming dice. Everything.
Doesn't matter that much of what's being seized couldn't be defined as obscenity by any definition of the word. It can be seized.
The store can't get a restraining order to prevent the seizure, while its conviction for obscenity is appealed. RICO permits the government to seize and sell the assets, even though an appeal is pending. So, if the conviction is subsequently overturned on appeal, the owner still loses. He has no recourse and no assets. They are irretrievably gone.
The store can and will be driven out of business.
Will the government actually pick on small targets such as comic book stores which have no connection to organized racketeering -- which was, after all, the intended target of RICO? Ask the Prybas. They can tell you.
Let's ignore for a moment the all-too-human -- and real -- possibility that a vindictive prosecutor or policeman will use RICO to drive a particular, unliked businessman or business out of business. Let's assume that the prosecutor's and the police's motives are pure and they only want to eradicate obscenity, something they think is evil. Will they pick on little stores instead of going after the bigger targets, the publishers or distributors of obscenity? Again, ask the Prybas. They'll tell you; the answer is yes.
Why? Many commentators think the government will prosecute small dealers and stores on obscenity RICO charges; stores that do not have sufficient resources to pay for an effective defense, stores that don't have the wherewithal to combat the resources of the government. The government can do this repeatedly. RICO forfeiture provisions give it the means to pay for the prosecutions by selling the assets seized from the defendants. In fact, it could actually become profitable to prosecute small stores.
Then, after the government has amassed enough convictions to use as precedents, it will prosecute the larger offending corporations. In this way, the government hopes eventually to eliminate, or at least intimidate, these corporations.
Can it work? Yes. If a gung-ho prosecutor can, through the judicious use of juror challenges, find twelve persons of a similar mind; he can have almost anything declared obscene. You and I may recognize the artistic and literary merit of Cinder and Ashe; not everyone does.
Let's assume that a local prosecutor in some provincial area gets two RICO obscenity convictions against a nationwide bookstore chain for selling, say, The Catcher in the Rye and Slaughterhouse Five in a local mall outlet; RICO would permit the government to seize all the assets of not only the local franchise but the entire chain.
Or, if the prosecutor could get Elektra: Assassin and Moonshadow declared obscene, he could use these precedents against Marvel Comics for publishing obscene works. If he succeeds, the prosecutor could then seize all of Marvel's assets and conceivably those of Marvel's parent corporation, New World Pictures.
In order to escape the specter of a seizure of its corporate assets, the nationwide chain might restrict its merchandise -- or a publisher structure its output -- to conform with the most backwater markets.
Can it work? It already has. I've read that one of the reasons the Southland Corporation stopped carrying Playboy and Penthouse in its 7-11 stores was that it did not want the sale of two centerfolds to lead to the seizure of the corporate jets.
If I seem concerned or upset, I am. Books and magazines have covers which can be closed to hide their contents. Movies have admission prices and video tapes have purchase prices which don't have to be paid, it they are not wanted. TVs have on/off switches and channel selectors, if a show offends. These are the proper defenses against being offended. Preventing people who are not offended from being able to read or see something -- infringing on other people's freedom of choice -- is not. I don't tell you that you can't buy early American furniture, don't tell me that I can't read J. D. Salinger.
I am concerned about RICO and what it portends. If you, too, are concerned, Cat Yronwode has suggested you send a contribution to the American Civil Liberties Union -- you can look up their address on their Web page, www.aclu.org -- so it can continue to fight RICO obscenity prosecutions on a nationwide basis. I agree; do it. You might also write your Congressman and Senators to express your concern and request that obscenity be removed from the RICO definition of racketeering activity. It can't hurt. It could help.
After all, this is more than me protecting my right to read dirty books. This is a group seeking to stifle art -- a form of communication -- because they don't like what's being said. Don't let them delude you with their claims of a moral victory, if they succeed. It is no victory.
When communication and free speech are stopped because of what is being said -- when ideas are suppressed -- everyone loses.
BOB INGERSOLL
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