The Feds vs. Obscenity: Putting the First out of Business

Article excerpt

Around midday on November 18, 1987, a jury in Federal court in Virginia decided that Dennis and Barbara Pryba were subject to the forfeiture provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO) for selling six obscene magazines and four videotapes. By nightfall, U.S. Marshals had padlocked the Prybas' three adult bookstores and eight videotape clubs.

The case presents the first use of the RICO statute in an obscenity prosecution. RICO empowers the government to sei"interests," including every property interest, connected to a racketeering enterprise. Originally adopted in 1970 to combat organized crime, the law was amended by Congress in 1984 to get at smut. The "racket" for which the Prybas were convicted involved the sale of obscene merchandise valued at about $105. For this, they forfeited businesses worth approximately $1 million, including all the stock and personal property in their stores, nine bank accounts, five vehicles and a warehouse. And that was before sentencing.

About one month after the jury's verdict, Judge T.S. Ellis 3d sentenced Dennis Pryba under the Federal anti-obscenity law to three years in jail plus five years' probation, added a fine of $75,000 and ordered him to perform 300 hours of community service. Barbara was given a three-year suspended sentence and ordered to pay $200,000. She has had to sell her house to comply. Ellis, a recent Reagan appointee, described the punishment as "lenient."

The judge rejected arguments that govermnent confiscation of the contents of bookstores restricts freedom of expression. He explained, "Once it is decided that obscenity does not merit First Amendment protection and indeed, once it is decided that obscenity is so pernicious that it should be criminally proscribed, then a subsequent punishment, like RICO's forfeiture scheme, is a sensible and wholly legitimate law enforcement weapon. It is specially designed to chill or deter proscribed, unprotected speech." [Emphasis added.]

This view of the First Amendment sounds grimly reminiscent of the logic of censorship articulated by Justice Oliver Wendell Holmes in his dissenting opinion in the 1919 case A brain v. United States. "Persecution for the expression of opinion seems to me perfectly logical," Holmes wrote. "If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away aB opposition." But Holmes concluded that the theory of our Constitution rejects such logic, and that "the ultimate good desired is better reached by free trade in ideas."

Nevertheless, every few decades the nation's policymakers stumble upon some end that they believe justifies the most drastic means. Now it is "obscenity," Congress recently passed a law banning interstate transmission of so-called dial-a-porn services; the Federal Communications Commission has been transformed into the morals police of the airwaves [see The F.C.C. Cleans Up the Airways," The Nation, December 5, 19871; and the Justice Department now devotes substantial resources to dreaming up new ways to sanitize the nation's reading material. Although Federal courts are currently reviewing the dial-aporn law and have ordered the F.C.C. to reconsider part of its indecency policy, the bureaucratic drive to censor continues unabated.

These efforts have been assisted by vague Supreme Court decisions on the meaning of obscenity. In the landmark 1957 Roth v. United States, Justice William Brennan defined obscenity as material that deals with sex "in a manner appealing to prurient interest" and that lacks "even the slightest redeeming social importance." The standard was intended to fury protect the portrayal of sex in art, literature and scientific works while allowing government the latitude to go after certain "hard- core" materials. But as Justice William 0. Douglas warned in his dissenting opinion, such a test "is too loose, too capricious, too destructive of freedom of expression" and it "creates a regime where in the battle between the literati and the Philistines, the Philistines are certain to win. …