Porn Tactics

U.S. District Judge Thomas Penfield has declared unconstitutional one of the tactics commonly used by the Justice Department against alleged pornographers.

Penfield forbade the government from bringing any more indictments against Avram Freedberg, who has been indicted for distributing obscene films in Utah and brought before the grand jury on obscenity charges in four other jurisdictions. Penfield wrote that "simultaneous criminal prosecutions of the same individual for the same offense in four separate judicial districts cannot possibly be consistent with Due Process."

For the last three years, the Justice Department has used mail-order stings to try to wipe out big porn dealers. An agent orders the most shocking tapes advertised in one of the dealers' catalogues, and the government indicts the distributor on porn charges. (See "Untruth and Consequences," Feb.) The government usually files the charges in small communities in the South or Midwest.

"The technical term is 'forum shopping,'" says Herald Price Fahringer, general counsel to the First Amendment Lawyers Association. "They take you into the conservative areas—the Bible Belt or somewhere—where they have the best chance."

The Justice Department defended the practice by claiming that if the materials were obscene, then the law had been broken in each jurisdiction. But critics charged that multiple indictments were really just fishing expeditions, in which prosecutors filed several indictments in the hope that one jury would convict.

And even if that didn't happen, the distributor might try for a plea bargain—agreeing to go out of business if the government dropped the charges—rather than foot the bill for separate defenses in several jurisdictions. Penfield ruled that the government may prosecute from any area that received films but must pick one area only.