Supreme Court overturns conviction in undercover pornography mailing

April 07, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A thin majority of the Supreme Court lashed out at federal pornography police yesterday for tempting a Nebraska farmer for more than two years until he finally bought one illegal magazine about boys having sex with each other.

The 5-4 majority, striking down the conviction of Keith Jacobson of Newman Grove, Neb., declared bluntly:

"When the government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would never have run afoul of the law, the courts should intervene."

"This," Justice Byron R. White wrote for the majority, "is such a case."

When federal agents entered Mr. Jacobson's home in 1987, they found only the items that undercover operatives had sent, plus two magazines of nude boys -- not illegal -- that he had bought before the government started writing to him about his sexual tastes.

Among the items sent was a child pornography magazine, Boys Who Love Boys, which he had ordered out of a catalog supplied by a fictitious organization run by government customs agents, "Far East Trading Co."

"By the time [Mr. Jacobson] placed his order, he had already been the target of 26 months of repeated mailings and communications from government agents and fictitious organizations," Justice White wrote.

Many of the farmer's replies to undercover mailings to him "were at most indicative of certain personal inclinations," and "a person's inclinations and fantasies are his own and beyond the reach of government," the majority opinion said.

One of the unusual facets of yesterday's ruling was that three of the court's conservative justices -- Justices White, David H. Souter and Clarence Thomas -- cast key votes to help make the majority. They were joined by the court's only two liberals, Justices Harry A. Blackmun and John Paul Stevens.

Justice Thomas' vote was perhaps the most surprising. In his brief time on the court, he seldom has split with the court's most conservative member -- Justice Antonin Scalia -- on a major case, particularly involving law enforcement issues. This time, Justice Scalia was with the dissent.

A Georgetown University law professor, William H. Greenhalgh, who is a close observer of the court, remarked: "Who would ever think that Clarence Thomas would be in that majority. You just expect him to be so close to Scalia; they are sort of peas in the same pod."

Since Justice Thomas wrote no separate opinion, it was unclear why he voted as he did. This was the first time he had taken part in a ruling on pornography or obscenity.

The Jacobson case had been watched closely for signs that the court might change the way it treats

"sting" or other undercover operations as a constitutional matter. The key constitutional question that usually arises in that kind of police work is whether the individual committing a crime did so only after being "entrapped" by undercover operatives.

Although the dissenting justices said that the court did make some new law on the "entrapment" issue, that was disputed by Justice White in a footnote, and by the Justice Department in a news release stating that the ruling was "generally limited to the facts" and "will not affect the government's sting operations in the areas of narcotics trafficking and similar crimes."

Mr. Greenhalgh, a criminal law expert, also cited the limited scope of the ruling. "This was simply a reaffirmation of the law of the past five decades," he said. The professor suggested that "what tipped the scale [in this case] was the egregious manner of the government's conduct."

Justice Sandra Day O'Connor, who wrote the dissenting opinion, said that the jury in the case had "sufficient evidence" that Mr. Jacobson was "predisposed" to commit the crime, even without any inducement from the government.

"He needed no government agent to coax, threaten, or persuade him; no one played on his sympathies, friendship, or suggested that his committing the crime would further a greater good," the dissenters argued. Joining in that dissent in full were Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy, and, in part, Justice Scalia.

Justice O'Connor argued that, even if the majority saw its ruling as being "limited," the implications of it were that every person caught in an undercover operation from now on "will claim that something the government agent did" -- even before giving the individual an actual opportunity to break the law -- created a "predisposition" and thus trapped the individual unconstitutionally.

For example, she suggested, someone accused of taking a bribe from an undercover agent "will claim that the description of the amount of money available was so enticing that it implanted a disposition to accept the bribe later" when the money actually was offered.

The case

Eight years ago, Keith Jacobson ordered two magazines containing nude photos of boys, plus a brochure, from an adult bookstore in San Diego known as Electric Moon.

Two months later, police raided that bookstore and found a mailing list with Mr. Jacobson's name and address. Soon after, federal undercover agents in the Postal Service and the Customs Service started enforcing a newly enacted law making it illegal to receive child pornography in the mail.

Over the next 26 months, the undercover operatives used five fictitious organizations and a bogus pen pal to contact Mr. Jacobson. They sent him two sexual attitude surveys, seven letters trying to gauge his appetite for child pornography and two catalogs of sexually explicit materials.

He replied eight times but bought only one child pornography magazine. That led to his criminal conviction for receiving that item in the mail; he was sentenced to two years' probation and 250 hours of community service.

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