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THE LAW IS A ASS for 12/31/2002
DOCKET ENTRY
"The Law is a Ass" Installment # 177
Originally written as installment # 157 and published in Comics Buyer's Guide issue # 796, February 19, 1989 issue
Remember how last week I used this whole long quote from Harlan Ellison about extreme hatred to describe my feelings about a particularly bad story. Double it. Triple it. Hell, go to Google.com and raise it that hatred to the power of a googleplex and you still won't equal my hatred for RICO obscenity prosecutions.
Which probably explains what follows.
******
THE LAW IS A ASS
Installment # 177
by
BOB INGERSOLL
There are times when doing this column can be very gratifying. This is one of them.
Sometime back in May of 1988, Don and Maggie requested that I do a column about the growing use of the Racketeer Influenced Corrupt Organization (or RICO) statutes--either the federal RICO statutes or their counterparts which exist in fourteen states--to prosecute and shut down, small book stores under RICO obscenity prosecutions. I admit, and rather ashamedly so, that I was not very familiar with all the intricacies of RICO at the time and might not have thought of the topic without my editors' suggestion. Nevertheless, I respected their judgment. If they thought the subject important enough to suggest to me; it would be worth whatever research was required to write the column.
So I did the research and discovered, to my horror, that the crime of obscenity had been added to the definition list of RICO racketeering offenses. RICO is, itself, problematic, it defines crimes as being RICO offenses, thus eligible for particularly onerous treatment by state and federal authorities, by creating a laundry list of offense. It takes these offenses and puts them in a list in the statute says, this list is the definition of RICO offenses. Nothing more need be done to make an offense a RICO offense than for a bunch of legislators to say, it's one, because we said it's one That may not seen so bad, as long as said legislators don't a particular mad on for, say, jaywalking, everything's Archie. And, originally, the list was limited to those classic, Edward G. Robinson activities we've all come to associate with organized crime such as loan sharking and murder for hire. But recently, the list was amended to include obscenity.
Including obscenity in the laundry list of crimes which constitute RICO offenses is even more problematic, because obscenity is the most nebulous of crimes. What constitutes obscenity is so poorly defined, one might as well be using a dyslexic dictionary. Not even the Supreme Court of the United States, which the Constitution saddles with the ultimate responsibility of defining obscenity is up to the task. It has never defined obscenity adequately. Indeed, one former associate justice once wrote that he couldn't define obscenity but, "I know it when I see it." Moreover, at least four members of the present Supreme Court feel is a matter of taste and morality which cannot, and should not, be regulated at all. Still, this crime, which no one knows what it is, so no one really has any advance warning of whether or not one is violating it has been added to the definition list of RICO racketeering offenses.
I further discovered, to my horror, that if a business is convicted of two obscenity convictions within a ten year period, the government can seize all of the business' assets--not simply the allegedly obscene material but any and everything the store sells, the fixtures it sells the stuff on and, even the toilet paper in the employee bathroom--and sell them to cover the costs of the prosecution. The business has no recourse and can not stop the seizure or sale of its assets pending an appeal; it simply--and immediately--loses its assets. The business would, quite literally, be driven out of business as it would have no assets with which to do business, while it was first prosecuted and then, if convicted, appealed the conviction. As that total process can take years, we're talking years of a store being without assets.
I finally discovered, to my horror, that RICO had already been used in precisely the above described manner. In Alexandria, Virginia, the book and video stores of the Prybas--stores described as a "Mom and Pop" operation and not part of some larger racketeering organization--were victims of the federal RICO statute, because they had the audacity to sell both general audience materials and--in a special section in the back--"sexually explicit" materials--material the Prybas had no way of knowing were obscene in advance, because unlike substances such as drugs, the sale of which is made explicitly illegal by statute, obscene materials are not obscene, thus illegal, until some jury somewhere determines that they are obscene. In Fort Wayne, Indiana, the police used the Indiana state RICO statute--which is similar to the federal statute--to shut down and seize the assets of an adult book store which had thirty-nine prior obscenity convictions. There was no determination that the stores were presently engaged in selling obscenity. Instead the seizure was justified under that part of the statue which said assets could be seized if a pattern of racketeering activities--that is two convictions within a ten year period--was established, because RICO makes it illegal to maintain a business with monies obtained from racketeering.
That is what I discovered to my horror. In the "The Law Is a Ass" installment for Comics Buyer's Guide # 761 (June 17, 1988), I described that horror and my fear that RICO has been, and will be, used not to fight the rackets but as a weapon by those who feel they have the right--divine or otherwise--to control what you or I read. (I know obscenity, when I see it, too. Obscenity is suppressing ideas or communication. Any ideas or communication) I urged people to write their congressional representatives to petition for a change of the RICO law or to send money to the American Civil Liberties Union whose address is presently 125 Broad Street, 18th Floor, New York, NY 10004, and if it changes whose address can be found at their web page can always be found on their web page http://www.aclu.org/. I urged this because so that contributions to the ACLU would continue and the organization would, thus, have sufficient funds to combat the horror. The response was immediate and gratifying.
Gratifying not because many told me it was among the best columns I have written--although such comments are certainly gratifying--but because people acted. People wrote comments in fanzines or comic letter columns expressing their outrage and urging others to take up the fight. I have received and granted requests to reprint the column in order to give it a wider circulation. I've read letters indicating that people did send money to the ACLU or write their congressional representatives.
Incidentally, for those who thought about sending money to the ACLU but haven't done so as yet--it's not too late. Do it now and start 2003 with something more important than the national collegiate football championship! To those who were debating writing their representatives; not only is it not too late to do so, the time is always ripe! The GOP may control Congress, but it doesn't control us. But it won't know that, unless we remind them of this little fact. If enough of us write in telling our congressional representatives that we do not believe obscenity should be included in RICO prosecutions, maybe Congress will remove obscenity from the definition.
I have an update on the RICO obscenity situation. Four paragraphs earlier I mentioned RICO prosecutions in Fort Wayne, Indiana, wherein the assets of an adult bookstore were seized because it had thirty-nine prior obscenity convictions and the police determined the store's pattern of racketeering offenses permitted the seizure. The Indiana Supreme Court upheld the seizures. The bookstore appealed to the United States Supreme Court on the grounds that the seizures violated their freedom of speech rights under the First Amendment to the United States Constitution. Organizations such as the ACLU and the American Booksellers Association filed briefs as amicus curiae (that's "Friend of the Court" to those of you who aren't lawyers and still have the luxury of being able to regard Latin as a dead language). On October 3, 1988 the United States Supreme Court heard arguments in the case. The Supreme Court's decision is expected in 1989. I will let you know what that decision is, when it is released. (I suppose I could honor that age-old New Years tradition and try predicting what the decision will be, but this is the CBG not the National Enquirerer.)
I wanted to have another update for you also. In November, Don and Maggie told me that someone had written them that the October 26, 1988 issue of Daily Variety reported a court had ruled a RICO seizure of all assets of a business for the sale of one allegedly obscene book or video tape was disproportionate--presumably under the cruel and unusual punishment clause of the Eighth Amendment--and invalidated the seizure. Such information, however, is triple hearsay. I wanted to confirm it, before I reported it. Unfortunately, I cannot.
I ordered the Daily Variety in question and have read it from cover to cover--several times. I discovered that Lorimar was changing the ending of a controversial Night Caller episode dealing with a AIDS-infected bisexual seeking revenge on women by exposing them to the AIDS virus so that the villain survives. I learned that payola was reappearing. I read that DIC enterprises was suing the producer of the new Beany and Cecil revival cartoon for allegedly taking actions which prompted its rather quick cancellation, and that DIC would have occasion to complain about anyone's else actions is a cause for amusement. And I can tell you that the top grossing movie in Chicago for the proceeding week was Halloween 4: The Return of Michael Myers, and I'm sure you had lost hours of sleep wondering about that one. But I found no article dealing with RICO seizures.
Undaunted (Okay, I was a little daunted, but I persevered nonetheless), I also consulted other legal references for any report of this case. I found none.
I cannot confirm the existence of the case, so will not report its existence as fact. I have a request. Would the person who made this report to Don and Maggie (they didn't tell me your name), or anyone else who might have seen such a report, please send me--care of CBG--specific information on where I can find the report? Please be as specific as possible--let me know what paper or magazine is involved as well as on what page and, if possible, what column the article is to be found. (Anything which makes my job a little easier is appreciated.) Better still, if you have a copy of the report; send that to me along with sufficient information so that I can see from where the information originated so that I can verify and further investigate the information. (Anything which makes my job a lot easier is even more appreciated.)
If I receive the information, I'll do a follow-up column reporting it. What kind of follow-up column? Come back next time, when I do a follow-up to my column on the American Booksellers Association v. Virginia case, and you'll see.
Gee, trailers. Can lobby cards and posters be far behind?
Bob Ingersoll
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