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Jesse Helms' Anti-Adult Legacy

Senator influenced RICO act

Jesse Helms' Anti-Adult Legacy

RALEIGH, N.C. - Jesse Helms, who according to the Washington Post , "helped secure a Republican ascendancy that has lasted more than 25 years," died on July 4 at the age of 86.

A well-known bigot and gay-basher, Helms used his power to block nominations for federal office, withhold America's long-overdue dues for its membership in the United Nations, threaten to cancel congressional support for arts groups such as the National Endowment for the Arts after it funded works by artists Robert Mapplethorpe and Andres Serrano, and oppose school busing to alleviate segregated schools. According to Wikipedia, Helms "opposed the Martin Luther King Day bill in 1983 on grounds that King had two associates with communist ties, Stanley Levison and Jack O'Dell. Helms led the Senatorial opposition to the bill and voiced disapproval of King's alleged philandering." However, Helms supported the tobacco industry - he was a longtime smoker - prayer in the public schools, as well as "decency, honor and spiritual and moral cleanliness in America."

As an example, according to the group Fairness & Accuracy In Reporting (FAIR), "After Carol Mosely-Braun (D.-Ill.), [then] the only African-American senator, defeated a bill that would have extended a federal patent on a Confederate flag insignia ... Sen. Jesse Helms (R.-N.C.) ran into Mosely-Braun in a Capitol elevator. Helms turned to his friend, Sen. Orrin Hatch (R.-Utah), and said, 'Watch me make her cry. I'm going to make her cry. I'm going to sing Dixie until she cries.' He then proceeded to sing the song about the good life during slavery to Mosely-Braun."

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During the 1960s, Helms served as executive vice president of a regional broadcasting company that operated WRAL-TV in Raleigh-Durham, North Carolina, and following each evening's newscast, delivered what the Post described as "five-minute tirades against the likes of intellectuals, 'the so-called civil rights movement,' big government, high taxes, student protests and the Kennedys." WRAL's obituary states, "In one noted editorial, he suggested building a wall around the UNC campus, which he called the 'University of Negroes and Communists,' so that its liberal sentiments could be contained." That obit is perhaps most notable for the final two words of its URL: "good riddance."

But for the adult community, Helms is best known for two actions: Introducing an amendment to the Racketeer-Influenced and Corrupt Organizations Act - so awkwardly named as to obtain the acronym "RICO," after the name of the character portrayed by Edward G. Robinson in the crime drama, Little Caesar - which added obscenity as a "predicate act" through which the federal government, upon convicting a defendant of transporting for sale just two sexually explicit videos, could seize most or all of the defendant's assets as proceeds of the "racketeering activity"; and the "Helms Amendment," which forbid the federal government from paying for any HIV-related education or prevention materials that would "promote or encourage, directly or indirectly, homosexual sexual activities."

In proposing the obscenity forfeiture provision to RICO in 1984, Helms argued, "[W]e are experiencing today an explosion in the volume and availability of pornography in our society. Today it is almost impossible to open mail, turn on the television, or walk in the downtown areas of our cities, or even in some suburban areas, without being accosted by pornographic materials. The sheer volume and pervasiveness of pornography in our society tends to make adults less sensitive to the traditional values of chaste conduct and leads children to abandon the moral values their parents have tried so hard to instill in them ... Surely it is not coincidental that, at a time in our history when pornography and obscene materials are rampant, we are also experiencing record levels of promiscuity, venereal disease, herpes, acquired immune deficiency syndrome (AIDS), abortion, divorce, family breakdown, and related problems. At a minimum, pornography lowers the general moral tone of society and contributes to social problems that were minimal or nonexistent in earlier periods of our history."

Commented
attorney Paul A. Batista, "Senator Helms, a conservative, did not explain how the expansion of RICO to encompass obscenity offenses as predicate acts would serve the goal of cleansing U.S. society of the effects of pornography as he perceived them."

As has often been the case with laws adversely affecting the adult industry, there was no congressional debate on Helms' amendment regarding its effect on First Amendment-protected speech. One of the first businesses to feel the effects of that law was Ft. Wayne Books, which along with two other Indiana adult bookstores, challenged the RICO law as applied to obscenity. In a U.S. Supreme Court decision authored by Justice Byron White, the Court found that "[t]he RICO statute is not unconstitutionally vague as applied to obscenity predicate offenses"; and that "[w]hile the RICO punishments are greater than those for obscenity violations, there is no constitutionally significant difference between them. The stiffer RICO punishments may provide an additional deterrent to those who might otherwise sell obscene materials and may result in some booksellers practicing self-censorship and removing First Amendment protected materials from their shelves. But deterrence of the sale of obscene materials is a legitimate end of state obscenity laws, and the mere assertion of some possible self-censorship resulting from a statute is not enough to render an antiobscenity law unconstitutional."

(Compare that with Justice Anthony Kennedy's assertion in Ashcroft v. Free Speech Coalition that, "The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse. '[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted....' Broadrick v. Oklahoma, 413 U.S., at 612.")

Perhaps the most egregious use of obscenity-RICO was the case of Minnesota entrepreneur Ferris Alexander, who in May of 1989 was found guilty of thirty-four counts of disseminating obscene material, involving just four magazines and three videos.

"Utilizing RICO's powerful forfeiture provision, the trial court dismantled Alexander's entire business enterprise ordering the confiscation of nearly $9 million in cash and the seizure of his entire stock of erotic materials," noted an attorney with McNabb Associates. "The forfeiture order covered all inventory, including thousands of sexually expressive books, magazines, videos, assorted sexual paraphernalia, televisions, video recorders, cash registers, furniture, three vehicles and ten pieces of commercial property. Additionally, the trial court levied a $100,000 fine and sentenced the fallen prince of porn to a six-year prison term."

"Following the Eighth Circuit's affirmation of his conviction, the federal government quickly disposed of Alexander's real property by quitclaim deed and burned the inventory of pornographic books, films and magazines confiscated from his California warehouse and various retail outlets. The appellate court approved of the destruction of Alexander's stock, noting that once the government obtains two or more obscenity convictions, RICO provides for the indiscriminate seizure of all implicated assets; and the First Amendment presents no barrier to total forfeiture."

The Supreme Court later upheld the massive forfeiture, although Justice Kennedy wrote in dissent, "Until now I had thought one could browse through any book or film in the United States without fear that the proprietor had chosen each item to avoid risk to the whole inventory and indeed to the business itself. This ominous, onerous threat undermines free speech and press primarily essential to our personal freedom... This Court's decision is a grave repudiation of First Amendment principles."

Regarding the Helms Amendment on federally-funded HIV prevention and educational materials, attorney Peter Lewis Allen wrote, "This small piece of legislative verbiage had an enormous impact on the American AIDS scene... The Helms amendment effectively censored the large majority of publicly funded AIDS prevention literature throughout the United States, and its language was so broad that it was not just homoerotic pieces like "After the Gym" [a titillating comic pamphlet produced by the Gay Men's Health Crisis of New York] that were banned: even a mention of anal intercourse, for example, could be seen as violating the federal mandate, despite the fact that anal intercourse was one of the primary routes of transmission for HIV."

"Fearful of biting the congressional hand that fed it," Allen continued, "the CDC [Centers for Disease Control] immediately adopted strict guidelines that applied to every pamphlet, flier, and poster it printed or paid for. The agency said 'no,' for example, to any picture of the genital organs, the anus, and either safe or unsafe sex. In addition, all prevention materials had to warn about the dangers of promiscuity and IV drug use and propound the benefits of abstinence."

Gay Men's Health Crisis sued the U.S. Department of Health and Human Services over the CDC restrictions and won - but as Allen points out, "There is no way to know precisely how many Americans died as a result of the Helms amendment and the CDC's content restrictions, but the numbers are likely to have been substantial. Hundred of thousands of Americans were probably infected with HIV between 1988 and 1992. Could effective education have prevented ten percent of those infections? Five percent? Even if only one infection in a hundred could have been averted, the cost of sparing the country's moral sensibilities ranked in the thousands of lives."

Somehow, "good riddance" seems too gentle a term to apply to Helms' death. Hence, we posthumously award Jesse a founding membership in the LCB.






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Mark Kernes

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