TIME: Almanac 1993/TIME Almanac 1993.iso/time/070389/07038900.033

Text File | 1992-09-23 | 5.8 KB | 114 lines

                                                                                LAW, Page 56

Dial-a-Porn, Find-a-Lawyer


The court defends free speech but reins in criminal defendants


    Entering the homestretch of its current term, the U.S.
Supreme Court quickened its pace last week by issuing 23
decisions. In addition to its landmark judgment protecting flag
burning as a form of free expression, the high bench announced a
series of other important rulings in the areas of free speech
and criminal law. Following past patterns, the Justices
remained vigilant on First Amendment rights but continued to
chip away at the constitutional safeguards of criminal
defendants.

    In an obscenity ruling that upset anti-pornography
activists, the court unanimously struck down a major portion of
Congress's 1988 dial-a-porn law. The statute, which had sought
to criminalize "obscene or indecent" telephone-message
services, had been enacted at the urging of parents' groups
that complained the racy phone communications were too easily
accessible to children. But last week the court insisted on
maintaining the distinction between obscenity, which may be
prohibited, and indecency, which may not. Justice Byron White
declared that banning indecent but not obscene telephone calls
for adults went beyond what was needed to protect children from
such messages. He said children could be shielded from phone
sex by technological restrictions, like access codes or
scramblers, or requiring payment by credit card. The decision,
however, still left prosecutors free to go after the
billion-dollar industry for phone calls that are judged obscene.

    "Congress used a sledgehammer when it should have used a
scalpel," explained Columbia University Law Professor Vincent
Blasi. "It's difficult enough to define obscenity, but indecency
is entirely in the eye of the beholder." Conservative Republican
Senator Jesse Helms called the maintenance of the ban on obscene
messages a "major victory for our children" but otherwise
decried the ruling. "How many ruined lives will it take before
the court and society realize the devastation that can result
from dial-a-porn?" he asked.

    The court handed down two other significant First Amendment
decisions. By a vote of 6 to 3, it backed the right of
communities to force public rock concerts to be less noisy.
Justice Anthony Kennedy said officials at New York City's
Central Park could require performers to use a sound system
operated by a city technician following municipal guidelines. By
another 6-to-3 vote, the court threw out a $97,500 judgment won
by a rape victim against the Florida Star. The small, weekly
Jacksonville paper had, contrary to state law, published the
victim's name after obtaining it from a public police report. If
the government has made information publicly available, wrote
Justice Thurgood Marshall, those who publish it should not be
punished.

    Assessing these decisions, attorney Floyd Abrams, a
free-speech specialist, said they constituted a "reassuring
week for the First Amendment." Said he: "The court has been
considerably more sensitive to First Amendment rights than to
other civil-liberties claims. Some of President Reagan's
appointees have been refreshingly libertarian in their
approach."

    The court's attitude, however, was strikingly different in
last week's criminal-law rulings. In two cases decided by
5-to-4 votes, the court handed a major defeat to defendants
charged under federal drug and racketeering laws -- and to
their attorneys. The high bench ruled that prosecutors may
confiscate the assets that such a person intends to use for his
legal defense if the property was gained through criminal
activity. Under the rulings, the assets may even be temporarily
frozen before the defendant is tried or convicted. Such seizures
do not violate the Sixth Amendment right to counsel, wrote
Justice White, because an accused has no right "to spend
another person's money for services rendered by an attorney,
even if those funds are the only way that that defendant will
be able to retain the attorney of his choice." Protested
dissenting Justice Harry Blackmun: "It is unseemly and unjust
for the Government to beggar those it prosecutes in order to
disable their defense."

    The decisions were hailed by prosecutors, who have already
relied on the federal forfeiture provisions to grab more than
$600 million in property from drug traffickers. Said Attorney
General Dick Thornburgh: "This is a notable victory in the war
on drugs." The rulings were denounced, however, by defense
attorneys who fear that the fate of both their livelihood and
their clients may depend on the whim of law-enforcement
officials. "No one who has law school loans, a mortgage to pay
and kids to feed can afford to practice this kind of law
anymore," said Scott Wallace of the National Association of
Criminal Defense Lawyers. Noted University of Michigan Law
Professor Yale Kamisar: "The decisions will chill a lot of
lawyers' interest in representing defendants in the very type of
complex criminal cases where astute and experienced counsel are
most needed."

    Death-row inmates fared no better than drug dealers and
racketeers. By a 5-to-4 vote, the Justices held that states do
not have to provide free attorneys to such criminals seeking to
challenge their convictions after losing their initial direct
appeals. Observed law professor Franklin Zimring of the
University of California, Berkeley: "The problem of sufficient
due process when it comes to the death penalty is insoluble.
You either finance the endless relitigation of these cases, or
you discriminate against the poor." Two other major
capital-punishment decisions are expected this week, along with
the anxiously awaited ruling on whether abortion should remain
constitutionally protected.