Dial-A-porn, Find-a-Lawyer

By Alain L. Sanders

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.

With reporting by Steven Holmes/Washington and Andrea Sachs/New York