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- <text id=89TT1722>
- <title>
- July 03, 1989: Dial-A-Porn, Find-A-Lawyer
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1989
- July 03, 1989 Great Ball Of Fire:Angry Sun
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- LAW, Page 56
- Dial-a-Porn, Find-a-Lawyer
- </hdr><body>
- <p>The court defends free speech but reins in criminal defendants
- </p>
- <p> 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.
- </p>
- <p> 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.
- </p>
- <p> "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.
- </p>
- <p> 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.
- </p>
- <p> 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."
- </p>
- <p> 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."
- </p>
- <p> 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."
- </p>
- <p> 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.
- </p>
-
- </body></article>
- </text>
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