Legal Commentary gave a speech of late to the Beverly Hills Bar Association on the topic of the plague of Internet intellectual property problems, figuring that most of the audience would consist of Brooks Brothers attorneys that represent supposedly respectable Hollywood. You would figure that they would all arrive with a five-coat wax shine and the day's issues of Daily Variety and The Hollywood Reporter under their arms, eager to learn how to stop Internet porn sites from ripping off their trademarks. Well, there was an element of that.
When it turned to the question-and-answer session, however, all anyone wanted to talk about was obscenity and other criminal laws that might threaten people such as Web hosts and others peripherally involved with the omnipresent adult Web community.
"So, if I'm an ISP and someone I'm hosting Webcasts obscene material," one member of the audience inquired, "I don't have to worry about obscenity prosecutions, do I?"
"You do."
"How can that be?"
"Well", I began, "you start with conspiracy laws - ?The most chickenshit law in the Federal Criminal Code,' a federal judge once, in the privacy of his chambers, was heard to say." And he was right. Conspiracy laws generally prohibit agreeing with someone to commit a felony. It is effectively impossible for a crime to be committed by more than one person without a conspiracy along with it. There also is aiding and abetting. If you help someone commit a crime, you're guilty as well. You can be convicted of conspiracy and the object crime all rolled into one.
So if you are an ISP, for example, you are aiding and abetting whatever criminal activity you are hosting. Now, you cannot be convicted of anything you don't know about. If an ISP hosts an e-tailer that is selling bogus goods, the ISP cannot be convicted of fraud unless he has some knowledge of what the Webmaster is up to.
"So, if a Webmaster on my ISP deals in obscene material, I can't be convicted of obscenity unless I knew it was obscene, right?"
"Wrong!"
"Huh?"
The Supreme Court said in the 1950s that a statute imposing strict liability for obscenity is unconstitutional. That is to say, a UPS driver cannot be convicted of delivering obscene material if all he knows is that he is delivering a box of videotapes of some kind. However, he can't get off the hook just by establishing that he hasn't watched the videotapes. The typical rule - and there are variations on this from place to place - is that the prosecution must prove that the defendant knew "the character and content of the material." The Supreme Court approved that in 1974.
Back to our nervous ISP host. Proof that the defendant knew the erotic nature of the material is enough to satisfy the "character and content" requirement. "What do you figure he thought was in there?" the prosecutor will scream to the jury. "Bambi?"
It gets worse. Obscenity is a function of community standards. There is one case from Texas which the government will contend stands for the proposition that once you place obscene material in interstate commerce, you are guilty even if it ends up in a place - Texas, in that instance - where you did not send it and you never thought it might wind up. This is where conspiracy comes into play.
There is a theory of law that says that a member of a conspiracy is responsible for acts of the co-conspirators which further the illegal agreement. So, the government will contend, if someone places material into interstate commerce in Los Angles earmarked for Las Vegas, two places where it does not violate community standards and is therefore protected by the First Amendment, but a co-conspirator sends it along to Oklahoma, where it does offend community standards and therefore is obscene, the poor chump in Los Angeles can be hauled into court in Oklahoma and tried under Oklahoma community standards.
"And you could get convicted?"
"Yup."
"This must be a misdemeanor, right?"
"Nope. Violation of any of the federal obscenity laws is a felony."
The typical case - first offense - has associated with it a sentencing guideline of 18-24 months! Under the applicable rules, none of that can be probated, and all but the last couple of months must be served in Club Fed. Not a pretty picture - but it gets worse.
During the 1960s, a Notre Dame law professor figured out this thing called RICO - the Racketeer Influenced and Corrupt Organizations Act. The idea was that the Mob was not being slowed down at all by prison sentences. The Mob would make money illegally from gambling, narcotics, loan-sharking, etc., and re-invest it in legitimate businesses, garnering a solid economic base. If someone went to prison, the business could continue - under new management, so to speak.
The idea of RICO was to strip organized crime syndicates of their economic roots. Now, the following explanation is monotonous to say the least, but bear with it; it can't be made interesting. In the most general terms, the federal RICO law says that it is a crime to engage in a "pattern of racketeering activity" -- which generally means two or more of any of the crimes on the racketeering list - in the operation of an "enterprise." Almost anything can be an "enterprise," ranging from a business organization to a group of guys that hang out at the same pool hall every Saturday night. RICO is a crime of its own, separate from, and with more punishment than, the underlying crimes ("predicate acts" in RICO parlance).
Since the point of RICO was to rip out organized crime by its roots, the most important feature of RICO is that, after the defendants are convicted, the government can forfeit ("take") not only all of the ill-gotten gains of the racketeering enterprise, but also the enterprise itself - lock, stock and barrel. So, for example, if someone owns a pizza joint and decides to take in a little extra money from side businesses of loan sharking and extortion, he can be convicted of RICO, and the government can forfeit the whole pizza joint, right down to the anchovies.
In 1984, when Congress enacted the most comprehensive overhaul of the federal criminal justice system in history, Senator Jesse Helms - perhaps the First Amendment's worst enemy - slipped in and, at the 11th hour, tacked on an amendment adding obscenity offenses to the list of RICO predicate acts. That meant that the government could forfeit a whole theater for showing two obscene movies. It actually proved to be even more than that.
Parenthetically, RICO is not utilized every time. If some federal prosecutor wants to start a RICO case, he or she is first required to obtain the permission of a chief-cook-and-bottle-washer type at Department of Justice headquarters in Washington. RICO is such a powerful law that it is used sparingly.
One of the few times it has been used in the context of obscenity, the person in the cross-hairs was one Ferris Alexander, a veteran adult bookstore operator from Minneapolis. Poor Ferris was nearly 70 years old when the local United States Attorney dropped a RICO indictment on him.
When the jury came back - probably having no idea what it had done - it found about half of the dozen-or-so charged videotapes to be obscene; thus, "guilty" of RICO. But what occurred after that is stupefying. Based upon the RICO conviction, the government forfeited millions of dollars - over $20 million by some accounts - worth of real estate, leases, inventory, bank accounts, video machines and everything else that was part of the so-called "enterprise." Ferris, destitute, appealed.
If you can believe this, the Supreme Court approved of this absurd result by a 5-4 vote. If you don't believe it, read the case. Alexander v. United States, 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993); available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=509&invol=544.
The fact that something like that can be allowed to transpire in this country is humiliating.
Clyde DeWitt is a partner in the Los Angeles, California law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
