of any property or assets used in, to promote, or obtained by the commission of obscenity or child pornography offense. 18 U.S.C. §§ 1467(a), 2253(a). The scope is not any broader than that for pre-conviction seizure. Indeed, section 1467(a)(3) contains a minor qualification that the court is to take into consideration "the nature, scope, and proportionality of the use of the property in the offense" -- a statement not included in the civil forfeiture law, 18 U.S.C. § 2254(a)(3).
First, the plaintiffs argue that the post-conviction forfeiture provisions are facially unconstitutional because they (1) amount to "prior restraint" and (2) improperly "chill" free speech. The Court disagrees.
The seminal decision on "prior restraint," Near v. Minnesota, 283 U.S. 697, 75 L. Ed. 1357, 51 S. Ct. 625 (1931), involved the state's enjoining a person from publishing defamatory material in the future, based on the fact that the person had printed such material the past. The Supreme Court held this prior restraint to be unconstitutional, concluding that restraint of future speech based on a finding that past speech was unprotected was "the essence of censorship." Near, 283 U.S. at 713.
It is true that the forfeiture laws in question here, like the injunction in Near, undoubtedly exist in order to ensure that the business is destroyed root and stem. See Attorney General's Commission on Pornography, 1 Final Report 465-472. The Court cannot, however, conclude that this policy decision on its face is unconstitutional. In Arcara, the Supreme Court ruled that the closure of an entire bookstore for criminal violations in it did not violate the First Amendment. Moreover, in Fort Wayne Books, the Supreme Court approved the use of Indiana's RICO law to attack a bookstore. While three justices in Fort Wayne Books held that post-trial forfeiture of a bookstore's assets would be unconstitutional, the majority ruled that "we assume without deciding that bookstores and their contents are forfeitable (like other property such as a bank account or a yacht)." 109 S. Ct. at 928. Following the logic in Arcara, forfeiture may be ordered for assets used in, to promote, or obtained from a criminal violation, whether or not these assets "incidentally" happen to include expressive materials. Under such logic, the forfeiture is not "prior restraint."
The Court in the instant case can imagine that some post-conviction forfeitures of bookstores and other businesses that engage primarily in expressive activity could be so broad that they violate the First Amendment by removing from circulation considerable amounts of protected material. For now, such cases can be dealt with on a case-by-case basis.
Another factor distinguishing the forfeiture schemes challenged here from the "prior restraint" doctrine is that forfeiture does not restrain the activities of the person or business in the future; it only takes from them assets that they have accumulated before conviction. Under the schemes at issue here, the convicted person or business is not enjoined from and is legally free to engage in the production and distribution of any expressive material after the forfeiture -- even though expressive material may have been seized. Critics might argue that the distinction is splitting hairs, but this is the stuff of First Amendment analysis.
Finally, the Court does not accept in whole the plaintiffs' argument that the post-conviction laws are facially unconstitutional because they "chill" protected speech. It is true that because the line between material protected by the First Amendment and that sanctionable as unprotected expression often is less than clear to a distributor of expressive materials, a "threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." NAACP v. Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). The potential consequences of a wrong determination whether certain material is protected may force distributors to "steer far wider of the unlawful zone." Speiser v. Randall, 357 U.S. 513, 526, 2 L. Ed. 2d 1460, 78 S. Ct. 1332 (1958); see R. Posner, Economic Analysis of Law 207 (3d ed. 1986); Erlich, The Deterrent Effect of Criminal Law Enforcement, 1 J. Legal Stud. 259 (1972).
Yet this broad deterrent effect exists in any criminal scheme, including when obscenity itself is penalized by criminal punishment. The courts must attempt to choose which laws have too great a "chilling" or deterrent effect on free speech to survive constitutional scrutiny. It is true that the forfeiture provisions at issue here "arm prosecutors not with scalpels to excise obscene portions of an adult bookstore's inventory but with sickles to mow down the entire undesired use." Fort Wayne Books, 109 S. Ct. at 939 (Stevens, J., concurring in part and dissenting in part). But it is not clear that forfeiture will "chill" speech any more than do criminal punishment and imprisonment, which is undeniably permitted for obscenity violations. While once again the Court can imagine that overly broad interpretations of the post-conviction forfeiture provisions could lead to an intolerable "chill" of First Amendment activity, the Court believes that the sections as written are not facially unconstitutional. Such a standard for a constitutional interpretation of the forfeiture provisions should be drawn after the courts have had an opportunity to evaluate the use of the forfeiture provisions and their effect.
In addition, the plaintiffs challenge 18 U.S.C. § 1467(j), which authorizes a United States District Court to order the forfeiture of property without regard to the location of the property. Thus, for example, a conviction for distributing obscenity in community A would lead to forfeiture of the defendant's property in community B, without any determination whether community B would find the material that was the basis for the conviction to be "obscene" in its eyes. The plaintiffs claim that the provision runs counter to the federalist thrust of the test in Miller, which depends on "contemporary community standards." 413 U.S. at 24, 37. Under Miller, a person may be convicted for obscenity violations only if the jury concludes that its community would find the material to be "obscene." Id.
The Court concludes that the provision is not unconstitutional under the Miller doctrine. First, the Court notes that forfeiture is authorized not because the community that has convicted the person has determined that the forfeited assets are "obscene" -- this is irrelevant under forfeiture. The only thing that matters is whether the assets were used in, to promote, or obtained from an activity that a certain community has determined involved "obscenity." Indeed, a person who lives in community B but who has distributed material to community A that the latter community finds to be "obscene" may find himself in prison in community A, even though his home community might not have convicted him, and even though he may never physically have entered community A. If a person may be "forfeited" through a conviction in a community other than his own, it appears to the Court that the person's property may be forfeited, even though it is not in the locale that handed down the conviction.
While seizure of assets undoubtedly would involve seizing expressive material, the seizure is done not because of a determination that they are "obscene."
There are, however, certain aspects of the post-conviction forfeiture scheme that the Court concludes are unconstitutional.
First, after a conviction for an obscenity or child pornography offense, the criminal forfeiture sections state that only persons "other than the defendant or person acting in concert with him or on his behalf" may obtain a stay of "disposition" of the forfeited property pending appeal. 18 U.S.C. §§ 1467(g), 2253(g).
If this section were interpreted to prohibit a defendant from obtaining a stay with regard to the destruction or sale of the forfeited material pending appeal, it would essentially eviscerate the constitutional right to appeal the forfeiture. It is not typical that forfeiture pursuant to conviction cannot be stayed pending appeal. See, e.g., Fed. R. Crim. P. 38(e) (permitting stay of forfeiture resulting from certain RICO or drug convictions). The unfairness of such an interpretation is heightened by the fact that forfeitures under sections 1467 and 2253 would likely involve expressive material. Therefore, the Court concludes that 18 U.S.C. §§ 1467(g) and 2253(g) must be interpreted so as to permit the defendant to obtain a stay pending appeal.
Second, the Court notes that the forfeiture provisions of the 1988 Act -- unlike the Racketeering Influenced and Corrupt Practices Act (RICO), to which the government consistently analogizes the statutory scheme at issue here
and which requires a "pattern" of activity, 18 U.S.C. § 1962 -- permit forfeiture for any violation of the listed obscenity or child pornography laws, regardless of whether or not there was a "pattern" of activity. 18 U.S.C. §§ 1467, 2253. Thus, the laws at issue here appear to authorize forfeiture of vast amounts of assets -- everything from First Amendment protected material to bank accounts -- for a single violation.
The general rationale for provisions authorizing forfeiture is that the property to be forfeited is considered to be part of, or obtained through, criminal "enterprises." Testimony of H. Robert Showers, Executive Director of the National Obscenity Enforcement Unit, U.S. Department of Justice, before the House Judiciary Committee at 13, June 8, 1988 (discussing the 1988 Act's forfeiture provisions); see Fort Wayne Books, 109 S. Ct. at 924-26. To impose the sweeping forfeiture provisions on persons or businesses that have committed a single violation would both unnecessarily chill free speech. Limiting the forfeiture provisions to cases involving "patterns" of criminal behavior -- as in RICO -- would give the forfeiture provisions their full effect on obscenity and child pornography enterprises, without imposing the specter of the corporate "death penalty" for a single violation of laws for which the line between crime and the First Amendment is "dim and uncertain." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963).
In sum, the Court concludes that the post-conviction forfeiture provisions are not as a whole facially unconstitutional. However, the Court concludes that post-conviction forfeiture may be ordered only when there has been a "pattern" of activity. Accordingly, the Court GRANTS in part and DENIES in part both the plaintiffs' and the defendants' motions for summary judgment on this issue, to the extent that (1) the Court declares that 18 U.S.C. § 1467(g) and 18 U.S.C. § 2253(g) must be interpreted to give the defendant the right to obtain a stay pending appeal, and (2) the Court enjoins the defendants from enforcing the forfeiture provisions of 18 U.S.C. § 1467 and § 2253 unless there has been shown a "pattern" of criminal activity.
May 16, 1989
JUDGMENT ORDER - May 16, 1989
To the extent that the requested relief is granted to the plaintiffs in the accompanying memorandum opinion and order, judgment is entered for the plaintiffs.
May 16, 1989