Keith Jacobson, a Nebraska farmer, ordered two magazines, Bare Boys I and Bare Boys II, from a California book store. He said he considered them "nudist type publications." Some might consider them child pornography, though they did not depict any sexual activity. In any event, this sort of publication was not illegal at that time.
Subsequently it was made a federal crime to knowingly receive by mail child pornography. A Postal Service inspector found Mr. Jacobson's name in the bookstore's files. Thus began repeated solicitations by postal and Customs Service officials aimed at getting Mr. Jacobson to order publications that by their descriptions may or may not have seemed illegal. When he finally did (after 26 months), he was arrested, tried and convicted.
He claimed entrapment, and the Supreme Court last week ruled that it was. For the court, Justice Byron White, a former Justice Department official, said this was a clear case of government going beyond its own guidelines and previous Supreme Court opinions which say you may not "originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute."
Justice White and the court were absolutely right, of course. The behavior of postal and customs officials was even worse than the above summary suggests. Among the solicitations they used to entrap Mr. Jacobson were appeals for support in lobbying efforts to change laws relating to sexual activities and literature. This is an attack on the First Amendment that goes beyond material that the public deems offensive, even illegal, to the very bedrock right to petition the government for a redress of grievances.
As interesting as the decision itself is the fact that a potentially new contour of the court may have been foreshadowed. It was only a 5-4 decision. The four dissenters were Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, all nominated to the court by Ronald Reagan; and Chief Justice William Rehnquist, elevated to that post by President Reagan. The majority included Justices White (a John Kennedy nominee), Harry Blackmun (Richard Nixon), John Paul Stevens (Gerald Ford), David Souter (George Bush) and Clarence Thomas (Bush).
Could this be the first signs of a "Bush Court"? If he gets a chance to name more justices -- if, as often rumored, Justices White (age 75 in June) and Blackmun (84 in November) are thinking of retirement -- will they often vote against the Reagan alignment? One case does not prove anything. A flood of decisions is ahead as this term nears its end. Perhaps these decisions will give a better idea of the future of the court.