illegal drugs may be recognized objectively, obscenity varies from community to community under the Miller standard and fluctuates with the changing tenor of times. These concerns are exacerbated by innumerable attempts by local pressure groups to ban books widely regarded elsewhere as thoroughly mainstream, thus broadening the potential adverse impact of the statute. In sum, the drastic penalties proposed by the bill to be applied to broadly defined obscenity offenses would surely contract the number of non-obscene works available to the public which explore sex in perhaps a controversial, but legally protected, manner. II. AND THE PROPOSED FORFEITURE PROVISIONS, SEIZURES, The forfeiture provisions of the bill, including the provisions detailing injunctive relief and seizures, suffer from a twofold constitutional problem. First, under the long-established principles of Near v. Minnesota, 283 U.S. 697 (1931), it is impermissible to punish past speech with the prohibition of future speech. The bill, by authorizing the forfeiture of First Amendment protected materials allegedly traceable to the gross profits of obscenity and the instrumentalities needed to sell books in the future, clashes with this fundamental principle by interfering with future speech. It "ma[kes] the mistake of prohibiting future conduct after a finding of undesirable present conduct. When that future conduct may be protected by the First Amendment, the whole system must fail Vance v. Universal Amusement Co., 445 U.S. 308, 311, n. 3 (1980). ." Second, the seizure, injunction and substitute asset provisions of the bill fall woefully short of constitutional mandates. The Supreme Court carefully has delineated basic safeguards which govern any proceeding to enjoin or otherwise suppress unprotected speech. Among other requirements, the censor must bear the burden of proof that the material is unprotected under the First Amendment; a prompt adversarial hearing and final adjudication on the obscenity issue must be assured by statute or by authoritative judicial construction; and any prior restraint before judicial review must be strictly limited in duration. Freedman v. Maryland, 380 U.S. 51, 58-59 (1965). The statute is constitutionally deficient in the following respects, among others: 1) Under § 1467 (c) (1) (A), a court apparently may enter a restraining order or injunction after the filing of an indictment simply upon the allegation that the property would be subject to forfeiture. Not only is this standard so weak as to be meaningless, but it clearly does not satisfy the requirement that the government must bear the burden of proof in demonstrating obscenity. To allow an injunction to follow merely from the government's allegations is to flout the belief, deeply etched in our law, that a free society prefers to punish the few who abuse rights of speech after they have been found to break the law, rather than to throttle them and all others beforehand. 2) The seizure provision, § 1467 (d), appears to provide no prompt adversarial hearing following the issuance of a seizure order. Curiously, the provision also does not include a provision requiring the court to balance the relative hardship of the parties, as does the prior provision on pre-indictment injunctions. 3) The substitute assets provisions, which permit the forfeiture of First Amendment protected materials as a substitute for unprotected materials, blatantly violate the mandate that the government must be able to carry the burden of proving obscenity in order to withhold books from circulation. This provision typifies the bill's insensitive approach toward regulating sexual expression. The central premise of the First Amendment is to promote the free flow of Armas seas cannot be sacrificed because the war of worse..er sold something else which was 41 The statute does not provide for a prompt final #djudication of obscenity within a reasonable period after the various forms of pre-trial relief, as is required by the Freedman decision. Broad forfeiture provisions, both before and after adjudication, are deeply problematic from the First Amendment standpoint. Tools appropriate for remedying drug and jacketeering crimes do not necessarily fit in the realm of ideas, where there is value which needs to be safeguarded with sensitivity. Notably, the Supreme Court is soon to examine in Fort Wayne Books v. State of Indiana the constitutionality of applying forfeiture provisions, there contained in a state RICO statute, to punish allegedly ebacene expression. Apart from other concerns over these provisions, that decision will likely impact on the vonat itut fonality of such penalties. We appreciate the subcommittee's consideration of AAP a comments on this important legislation. We would be plated to respond to further inquiries which the Rony\mmittee might wish to address to AAP concerning this CHAPTER 71-OBSCENITY 1461. Malling obscene or crime-inciting matter. 1462. Importation or transportation of obscene matters. 1468. Mailing indecent matter on wrappers or envelopes. 1464. Broadcasting obscene language. 1466. Transportation of obscene matters for sale or distribution. EDITORIAL NOTES Savings Provisions of Pub.L. 96-473, Title II, c. II. See section 235 of Pub.L. 98-478, Title II, c. II, Oct. 12, 1984, 98 Stat. 2081, as amended, set out as a note under section 3551 of this title. 1461. Mailing obscene or crime-inciting matter Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of Title 89 to be nonmailable, or knowingly causes to be delivered by mail according to the direction there on, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter. The term "indecent", as used in this section includes matter of a character tending to incite arson, murder, or assassination. (As amended June 28, 1955, e. 190, ff 1, 2, 09 Stat. 183; Aug. 28, 1958, Pub.L. 85-796, § 1, 72 Stat. 962, Jan. 8, 1971, Pub. L. 91-662, §§ 3, 5(b), 6(8), 84 Stat. 1973, 1974.) 1462. Importation or transportation of Scene matters Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowIngly uses any express company or other common carrier, for carriage in interstate or foreign com merce (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of Indecent character, or (b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or (c) any drug, medicine, article, or thing designed, adapted, or intended for producing abor tion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or Whoever knowingly takes from such express company or other common carrier any matter or thing the carriage of which is herein made unlaw ful Shall be fined not more than $5,000 or impris oned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter. (As amended May 27, 1950, c. 214, § 1, 64 Stat. 194; Aug. 28, 1958, Pub.L. 85-796, § 2, 72 Stat. 962; Jan. 8, 1971, Pub.L. 91-662, § 4, 84 Stat. 1978.) § 1463. Mailing indecent matter on wrappers or envelopes All matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, and all postal cards upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, or obscene character are written or printed or otherwise impressed or apparent, are nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office nor by any letter carrier, and shall be withdrawn from the mails under such regulations as the Postal Service shall prescribe. Whoever knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable matter, or knowingly takes the same from the mails for the purpose of circulating or dispos ing of or aiding in the circulation or disposition of the same, shall be fined not more than $5,000 or imprisoned 'not more than five years, or both. (As amended Aug. 12, 1970, Pub.L. 91-875, § 6()(18), 84 Stat. 778.) |