dissenting.
I dissent. The Indiana RICO/CRRA statutory scheme passes constitutional muster.
Our legislature intended the RICO/CRRA statutes should receive a broad construction, as does the federal RICO statute, Russello v. U.S. (1983), 464 U.S. 16, 104 S.Ct. 296, 300-301, 78 L.Ed.2d 17 so as to better curb racketeering generally in this state. Specifically as to the cases before us, it is apparent our legislature intended RICO/CRRA to be a vehicle for the suppression of obscene materials offered for sale to the public if such materials are part of the assets of a racketeering activity which the state seeks to eradicate. Thus, the central questions in these interlocutory appeals are:
1. whether a state may confiscate obscene materials when they are part of the assets of a racketeering activity, and
2. if so, whether the Indiana RICO/CRRA statutory scheme passes constitutional muster in light of the First Amendment.
I. Obscenity Subject to State Action
Prior to 1978, no clear-cut majority spoke for the United States Supreme Court in obscenity cases. In that year, however, a five to four majority spoke in three cases. They are Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, both decided the same day, and Heller v. New York (1973), 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745, decided the following day. Thus, these cases are the only reliable precedent for our purposes.
In Miller, the Supreme Court said
This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment (citing cases). "The First and Fourteenth Amendments have never been *603treated as absolutes [footnotes omitted]."
Miller, 413 U.S. at 23, 93 S.Ct. at 2614. The majority here, in essence, adopts the "absolutist" approach long advocated by Mr. Justice Douglas. This school argues because the term "obscenity" cannot be precisely defined, First Amendment protection is absolute as to all printed or photographic materials, they are not subject to state action under any cireumstances. This approach was discussed and rejected by the Miller Court, cf. 413 U.S. at 27-28, 93 S.Ct. at 2616-2617.
Obscene material is subject to state action because
.... there are legitimate state interests at stake in stemming the tide of commer-clalized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. Rights and interests "other than those of the advocates are involved." (citing case) These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The Hill-Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime. Quite apart from sex crimes, however, there remains one problem of large proportions aptly described by Professor Bickel:
"It concerns the tone of the society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently there.... We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places-discreet, if you will, but accessible to all-with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. (Emphasis in original). Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not." ... (Emphasis added.) As Mr. Chief Justice Warren stated, there is a "right of the Nation and of the States to maintain a decent society ...," (citing case) (dissenting opinion).
The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human ex-. istence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data. (Emphasis supplied).
Paris, 413 U.S. at 57-60, 63, 93 S.Ct. at 2635-2636, 2638. The states have a legitimate interest in suppressing salacious matter. RICO/CRRA as enacted and here applied, is Indiana's legislative response to obscenity offered for sale to the public when it constitutes part of the assets of a racketeering activity.
II. The RICO/CRRA Statutory Scheme Constitutional
The majority holds the RICO/CRRA statutes unconstitutional under the facts of these cases "on three distinct yet interrelated grounds", namely,
1. they operate as a prior restraint upon First Amendment-protected materials,
2. they fail to comply with procedural safeguards required even for suppression of obscene materials, and 8. they fail the less restrictive means test announced in U.S. v. O'Brien (1968), 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672, for evaluation of alleg*604edly content-neutral state regulation having an incidental impact upon free expression.
I believe the majority is simply wrong on each count.
The encapsulated facts before us are:
1. the complaints allege the appellants have engaged in a pattern of racketeering activity as that term is defined in the RICO statute, and the State seeks to impose the remedies available to it under CRRA upon the appellants so as to terminate their racketeering activities;
2. additionally, the State has moved for immediate seizure of the defendants' assets, as authorized by I.C. 34-4-80.5-3(b);
3. importantly, a judge of a court of general jurisdiction kas Rkeard evidence and determined there was probable cause for seizure in each case as required by CRRA before the seizure of assets took place; and
4. the assets seized consisted of furniture, fixtures, bank accounts, display cases, file cabinets, office machinery, and similar items, and books, magazines, motion picture films, and video tapes offered for sale to the public.
The majority concludes because books, magazines, motion picture films, and video tapes offered for sale to the public at large were part of the assets seized, the RICO/CRRA statutes are unconstitutional as to those materials. While I agree with the majority we must never permit the slightest abridgement of free speech as guaranteed by the First Amendment in any form including statutory prior restraint, it is readily apparent the materials here involved do not enjoy First Amendment protection. They are nothing more than pure, undiluted obscenity.
As the majority notes, the test for obscenity is succinetly stated in Miller. There the Supreme Court said
The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.
Miller, 413 U.S. at 24, 93 S.Ct. at 2615. With this test in mind, I state the facts presented 'to the trial judges in each of these cases in some detail.
In 4447 Corp., the probable cause affidavit of an Indianapolis Police detective sergeant assigned to its Vice branch was introduced as evidence. It recites he visited one of the appellants' establishments, the Adult Toy and Gift Shop in Indianapolis. While there, he viewed sexually explicit materials offered for sale, including magazines, video tapes, sexual aid devices, and eight millimeter motion picture films. He purchased two such films entitled "Anal Madness" and "Spin the Bottle". Each had sexually explicit cover displays. Review of these films revealed men and women engaged in deviate sexual conduct and sexual intercourse. He then went to the "Live Peep" section of the store and entered a "conversation booth" where he talked by telephone to a female. After putting money in a coin operated device as she directed, lights came on on her side of the booth. After tipping the female at her suggestion, she removed her clothing, laid on the floor, and performed erotic gyrations calculated to titillate the viewer sexually.
The detective then went to World Video in Indianapolis, another of defendants' establishments. There he saw X-rated video tapes and eight millimeter films displayed for sale. After negotiations, he purchased two films entitled "Sexual Negotiations" and "Afternoon Delight". He asked the store manager to discount the video tape "Hot Summer Night", but she warned "it was pretty rough." He then left without the video tape, but called another police officer to enter the establishment and identify the two persons with whom he had dealt. One of them told the identifying *605officer she was opening a new store at 38th Street and Lafayette Road in Indianapolis. The affiant's review of the additional films he purchased at World Video revealed men and women engaged in sexual intercourse and deviate sexual conduct.
The next day affiant returned to the Adult Toy and Gift Shop and purchased the films "Big Load" and "Gyro Sex". These two films also depicted men and women engaged in sexual intercourse and deviate sexual conduct. The same day another detective went to World Video and purchased the video tape titled "Hot Summer Night". It portrayed four men forcing a young female to perform oral sex, sexual intercourse, and their beating of her with a belt.
Three days later, another detective went to the Plaza Entertainment Center near 38th Street and Lafayette Road in Indianapolis. Although the business appeared to be open, the detective discovered upon entering there were several construction workers present. However, sexually explicit magazines, films and other materials were displayed for sale. Upon inquiry, one worker told the detective the store would not be open until Monday. He then showed the detective the "live peep" and mini theater sections, indicating the theater portion would not be completed until December.
Based upon those facts, his examination of other documents, and his numerous investigations into businesses of this nature, the detective sergeant stated he reasonably believed all three locations were under common ownership and control, part of the same enterprise, and being operated by the various corporations and individuals named as defendants in the case in a manner violative of the Indiana RICO statute.
In Ft. Wayne Books, the prosecutor sought seizure of assets under facts paralleling those in 4447 Corp. However, probable cause in Ft. Wayne Books additionally was based upon nineteen convictions of these corporations for distributing obscene matter for consideration and nineteen convictions of individuals who acted as agents of those corporations for the same offenses. Such evidence clearly demonstrates two or more incidents of racketeering activity, and the obscene nature of the materials at issue in each case.
Although the First Amendment does not protect obscene materials as a limitation on the police power of the states under the Fourteenth Amendment, Paris Adult Theatre I, 413 U.S. at 54, 93 S.Ct. at 2633; Miller, 413 U.S. at 23-25, 93 S.Ct. at 2614-2615, Kois v. Wisconsin (1972), 408 U.S. 229, 230, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312, they are entitled presumptively to First Amendment protection initially, simply because they consist of books, magazines, movies, and video tapes. The constitutional rub comes at this point. To pass constitutional muster, a statutory scheme seeking to suppress obscene matter must also leave undisturbed those materials which qualify for First Amendment protection. It is on this point many prior statutory strategies have been impaled upon the First Amendment.
Only a few of the scores of cases cited by the majority bear directly upon the question of whether Indiana's RICO/CRRA statutory scheme falls within current constitutional parameters.
In Freedman v. Maryland (1965), 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, the United States Supreme Court struck down a state scheme for the licensing of motion pictures because it did not require resolution of the obscenity question with reasonable promptness by a judicial determination in an adversary proceeding prior to imposition of a valid final restraint. Id., 380 U.S. at 58, 85 S.Ct. at 739. The Supreme Court later explained its holding in Freedman in these words
The settled rule is that a system of prior restraint "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system."
We held in Freedman, and we reaffirm here, that a system of prior restraint runs afoul of the First Amendment if it lacks certain safeguards: First, the burden of instituting judicial *606proceedings, and of proving that the material is unprotected, must rest on the censor. Second, any restraint prior to judicial review can be imposed only for a specified brief period and only for the purpose of preserving the status quo. Third, a prompt final judicial determination must be assured.
Southeastern Promotions, Ltd. v. Conrad (1975), 420 U.S. 546, 560, 95 S.Ct. 1239, 1247, 43 L.Ed.2d 448.1 It further stated in that decision the Freedman rule applied not only to motion pictures and live plays, it also applied to materials, cf. United States v. Thirty-Seven Photographs (1971), 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (customs agents seized imported materials) and Blount v. Rizzi (1971), 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498, (postal laws authorized postal officials to restrict use of the mails).
In Southeastern Promotions the Supreme Court said
Procedural safeguards were lacking in several respects. The board's system did mot provide a procedure for prompt judicial review. (Emphasis supplied.)
Southeastern Promotions, 420 U.S. at 561, 95 S.Ct. at 1248.
Does the Indiana CRRA statute provide procedural safeguards "designed to obviate the dangers of a censorship system" by providing "a procedure for prompt judicial review" in cases where materials presumptively entitled to First Amendment protection are involved? Clearly it does. IC. 34-4-80.5-8(b) provides
(b) When an action is filed under subsection (a), the prosecutor may move for an order to have property subject to forfeiture seized by a law enforcement agency. The judge shall issue such an order upon a showing of probable cause to believe that a violation of IC 35-45-6-2 involving the property in question has occurred. (Emphasis supplied.)
Not only are presumptive First Amendment materials so protected, all property subject to immediate seizure receives like treatment under CRRA's provisions. Judicial review is required prior to seizure of any property.
Does the fact this judicial review is ex parte render this procedure objectional under the Freedman rule? Again, the answer is no.
Chief Justice Burger, speaking for the majority, cogently answered this question in Heller.2 He said
This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. (Citations omitted.) In particular, there is no such absolute right where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. In Lee Art Theatre v. Virginia [392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968) ], supra, the Court went so far as to suggest that it was an open question whether a judge need "have viewed the motion picture before issuing the warrant." Here the judge viewed the entire film and, indeed, witnessed the alleged criminal act. It is not contested that the judge was a "neutral, detached magistrate," that he had a full opportunity for independent judicial determination of probable cause prior to issuing the warrant, and that he was able to "focus *607searchingly on the question of obscenity." (Citations omitted.)
In United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), and Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), we held that "because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." 402 U.S., at 367, 91 S.Ct., at 1403, quoting 380 U.S., at 58, 85 S.Ct., at 738 (emphasis added).
... Even in those cases, we did not require that the adversary proceeding must take place prior to initial seizure. Rather, it was held that a judicial determination must occur "promptly so that administrative delay does not in itself become a form of censorship." (Citations omitted.) ... If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible....
With such safeguards, we do not perceive that an adversary hearing prior to a seizure by lawful warrant would materially increase First Amendment protection. (Citations omitted.) The necessity for a prior judicial determination of probable cause will protect against gross abuses, while the availability of a prompt judicial determination in an adversary proceeding following the seizure assures that difficult marginal cases will be fully considered in light of First Amendment guarantees, with only a minimal interference with public circulation pending litigation. }
Heller, 413 U.S. at 488, 492-493, 93 S.Ct. at 2793, 2795.
From my review of these cases, I perceive the rule to be when a non-judicial determination of obscenity is made in First Amendment cases, the statutory scheme involved must place the onus on the determining authority to carry the proceedings promptly forward to a final judicial determination of the obscenity question after an adversarial hearing. The defendant is not required to take the initiative in such cases. The rule is otherwise, however, when the proceedings at issue are initially begun, as here, in a judicial setting. In such cases the procedural scheme must provide for
(a) an initial determination the materials to be seized are, in fact, obscene, and
(b) assurance a prompt final judicial determination as to obscenity is readily available to any interested party.
However, there is no onus on the plaintiff, after the initial ex porte determination, to push the matter to a final hearing on the obscenity issue.
As to the availability of a prompt final hearing under RICO/CRRA, the seizure provisions are but another form of civil attachment. On that subject, Ind.Rules of Civil Procedure, Trial Rule 64 reads, in part
(A) Ancillary remedies to assist in enforcement of judgment. At the commencement of and during the course of an action, all remedies providing for seizure of ... property are available under the circumstances and in the manner provided by law and existing at the time the remedy is sought.
The remedies thus available include, without limitation, ... attachment ... or equivalent legal or equitable remedies, however designated ...
CRRA provides a civil remedy to the state for the pursuit of racketeering assets. Thus, the provisions of Indiana's civil attachment statute, I.C. 34-1-11-1, et seq., were and are available to the appellants at anytime.3 I.C. 34-1-11-33 reads in part
*608Any defendant against whom an order of attachment has been issued may, after appearing to the action, move to have the attachment discharged and restitution awarded of any property taken under it;
Under this statutory scheme, a prompt final adversarial hearing on the obscenity question was available to appellants. In both 4447 Corp. and Ft. Wayne Books the appellants have filed dilatory motions rather than seek the final adversarial hearing to which they are entitled. Similar facts were present in Heller. The Court there said
A judicial determination of obscenity, following a fully adversary trial, occurred within 48 days of the temporary seizure. Petitioner made no pretrial motions seeking return of the film or challenging its seizure, nor did he request expedited judicial consideration of the obscenity issue, so it is entirely possible that a prompt judicial determination of the obscenity issue in an adversary proceeding could have been obtained if petitioner had desired. Although we have refrained from establishing rigid, specific time deadlines in proceedings involving seizure of allegedly obscene material, we have definitely excluded from any consideration of "promptness" those delays caused by the choice of the defendant. (Citations omitted.) In this case, the barrier to a prompt judicial determination of the obscenity issue in an adversary proceeding was not the State, but petitioner's decision to waive pretrial motions and reserve the obscenity issue for trial. Cf. Kingsley Books, Inc. v. Brown, 354 U.S., at 439, 77 S.Ct., at 1326. (Emphasis supplied and footnote omitted.)
Heller, 413 U.S. at 490-491, 93 S.Ct. at 2793-2794. Thus, delay in a prompt final adversary hearing on the obscenity question in both the cases before us is chargeable to the appellants not the appellees.
The majority ignores the facts before us when it says in section III of its opinion ""the protected or unprotected nature of the speech remains to be determined...." The character of these materials initially has been determined by a disinterested magistrate in each case. They are obscene. Because the RICO/CRRA statutory system mandates an initial judicial hearing prior to seizure, and any interested party is assured of a prompt final hearing on the obscenity question, it is constitutional.
The majority eschews Heller calling it inapplicable here because it involved only one film which was held by the state as evidence to be used in a later prosecution. Rejection of Heller is unwarranted because it was intended to be precedential authority for cases involving larger quantities of obscene materials, per note 7 of that opinion.
Referring to Marcus and Quantity of Books, this note 7 reads
In particular, Marcus involved seizure by police officers acting pursuant to a general warrant of 11,000 copies of 280 publications. 367 U.S., at 723 [81 S.Ct. at 1711]. Unlike this case, there was no independent judicial determination of obscenity by a neutral, detached magistrate, nor were the seizures made to preserve evidence for a criminal prosecution. Id., at 732 [81 S.Ct. at 1716]. The sole purpose was to seize the articles as contraband and to cause them "to be publicly destroyed, by burning or otherwise." Id., at 721 n. 6 [81 S.Ct. at 1710 n. 6]. In A Quantity of Books v. Kansas, 378 U.S. 205 [84 S.Ct. 1723, 12 L.Ed.2d 809] (1964), 1,715 copies of 81 publications were seized by a county sheriff, also without any prior judicial determination of obscenity and, again, for the sole purpose of destroying the publications as contraband. Id., at 206-209 [84 S.Ct. at 1723-1725]. (Emphasis supplied.)
Heller, 413 U.S. at 491, 93 S.Ct. at 2794. As things now stand in these cases, the *609materials in question have been stripped of their presumptive First Amendment protection. By judicial decree, they constitute obscene matter no more entitled to First Amendment protection than a sack of doorknobs.
A. RICO/CRRA Hos No "Chilling Effect" on First Amendment Rights
The majority asserts RICO/CRRA has a "chilling effect"4 upon First Amendment rights. Again, I disagree. Such contention is inapplicable here because Indiana's statutory scheme provides for judicial review before seizure. In Freedman the court said the "chilling effect" of a censgorship order administratively imposed is dispelled by a statutory procedure requiring prompt judicial action for its enforcement, as does RICO/CRRA as applied to these cases, cf. 380 U.S. at 60, 85 S.Ct. at 739.
B. RICO/CRRA Is Not "Overbroad"
A statute is "overbroad" when it burdens or punishes activities protected by the First Amendment in a substantial degree as well as those materials not entitled to First Amendment protection. Broadrick v. Oklahoma (1973), 413 U.S. 601, 617, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830; NAACP v. Button (1963), 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405; Kunz v. New York (1951), 340 U.S. 290, 304, 71 S.Ct. 312, 320, 95 L.Ed. 280; Thornhill v. Alabama (1940), 310 U.S. 88, 97, 60 S.Ct. 736, 742, 84 L.Ed. 1093.
Patently, RICO/CRRA operates with surgical precision on obscenity. Materials entitled to First Amendment protection never can be put in jeopardy under those provisions because no presumptively-protected First Amendment matter may be seized by the State prior to a judicial determination of obscenity. The main target here is obscene materials, not presumptively-protected First Amendment materials. Thus, this statutory scheme is not "over-broad." See, Broadrick, 413 U.S. at 615-17, 93 S.Ct. at 2917-18.
C. RICO/CRRA Does Not Violate the "Less Restrictive Means" Test
The majority claims RICO/CRRA fails the "less restrictive means test" of U.S. v. O'Brien (1968), 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672. I demur to that statement.
Under O'Brien, state regulation is sufficiently justified if
(a) it is within the constitutional power of government,
(b) it furthers an important or substantial governmental interest,
(c) the governmental interest is unrelated to the suppression of free expression, and
(d) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
The majority concedes the first three requirements, but claims the incidental restriction on protected material is greater than necessary or essential to the furtherance of Indiana's governmental interest. Again, I disagree.
The majority reaches the wrong conclusion when it asserts there must be some First Amendment-protected materials suppressed because no allegations in the complaints deny their presence. The character of the material at issue has been judicially determined initially for our purposes. A disinterested magistrate has determined all are obscene. Further, a prompt final adversarial hearing is available to appellants at any time. If any First Amendment-protected material is present that fact will be determined at the final obscenity hearing. Any such prior restraint is merely incidental and transitory. If any is present, it will be returned to the stream of commerce after the final hearing. Thus, the O'Brien test is in all respects fulfilled. Until the *610final hearing, the evidence preponderates all materials seized are obscene.
Although the above discussion fully states my position, I must address the majority's repetitive characterization of the State's actions in these cases as "padlocking bookstores," and the ominous, if unintended, innuendos that phrase invokes as to our legislature and the public officials here involved. ’
Under the evidence, neither the trial judge who issued the seizure orders nor the law enforcement officials who carried out those orders should be accused of "padlocking bookstores." Such a characterization is uncalled for. They have lawfully confiscated the assets of persons and corporations allegedly engaged in patterns of racketeering activity, a part of which is the selling of the illicit contraband discussed above. It is their right and duty to do so under RICO/CRRA. They have padlocked "porno shops" in the public interest not "bookstores.".
I would affirm the trial court in each case, and remand both for further proceedings.
. In this case a municipal board denied the promoters of the musical "Hair" use of a municipal theatre. The board made that determination because of outside reports it had received "the production would not be in the best interest of the community." In a district court action after the promoter's application for preliminary injunction had been denied, the district court sitting with an advisory jury determined "Hair" was obscene and denied a permanent injunction.
. In Heller, a New York Criminal Court judge watched an entire allegedly obscene film at a theatre at the request of an assistant district attorney. Upon its conclusion, the judge issued warrants, the film was seized, then used as evidence in a later criminal action.
. We note parenthetically the trial court in 4447 Corp. sua sponte set that case for final hearing on August 4, three days after the initial ex parte hearing on August 1. Appellants appeared that day and filed dilatory motions. Although no date for a final obscenity hearing was set by the *608trial court in Ft. Wayne Books, the initial hearing was held, the appellants appeared three days later, but also filed dilatory motions instead of promptly seeking the firal adversarial hearing on the obscenity question to which they were, and are, entitled, as noted in the main text.
. Any law or practice which has the effect of seriously discouraging the exercise of a constitutional right, including the right to free speech, is said to have a "chilling effect." North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; United States v. Jackson (1968), 390 U.S. 570, 584, 88 S.Ct. 1209, 1217, 20 L.Ed.2d 138; Black's Law Dictionary, Fifth Edition (1979), at 217.