With all the recent debate about our right to privacy, one might overlook the fact that morals have always been grist for the legislative mill. "I had not known sin, but by the law" -- Romans, 7:7. On occasion, however, as observed by Mr. Bumble, "the law is a ass . . ."

In Alexandria the other day, three Virginia residents were found guilty in federal court of distributing materials deemed to be "obscene" in their video and book stores. What is noteworthy is that these presumptive pornographers were convicted under the federal racketeering statute, known by the acronym "RICO." Many people do not understand the implications of all of this.

RICO convictions can mean the forfeiture of businesses operated unlawfully and of the proceeds of the unlawful activity. The verdicts in question rest on the content of four videotapes and six magazines. The government has said that it intends to introduce "circumstantial evidence" that everything sold and rented in the defendants' stores since 1973 was "similar to" those tapes and magazines. (Apparently you can tell a book by its cover.) Because the defendants have no source of income other than those stores, the government is seeking forfeiture of everything they own as proceeds of the unlawful activity: bank accounts, businesses, cars and home. The two owners face 95 years in prison; the bookkeeper faces 75 years. Those must have been some magazines.

This novel use of RICO penalties against smut peddlers was recommended by Attorney General Edwin Meese's commission on pornography, the same group that got the attention of book and magazine retailers with a greeting card that began, "You have been identified as a possible distributor of obscene materials . . ." The commission believes that using forfeitures in the manner described "could, in appropriate cases, virtually eliminate a large-scale pornography operation."

The rub is that far more than pornography faces elimination. If the government prevails, the defendants may forfeit everything they own as soon as the trial court enters its judgment. Under RICO, the defendant and his representatives may not petition the court to stay forfeiture proceedings while the case is on appeal. In a few years, if the conviction should be reversed, they may have the privilege of battling the government over whether their refund check should be for anything more than what their assets fetched on the auction block.

The law is supposed to represent a reasonable solution to recognized social controversy. Obscenity prosecutions continuously balance and define the right of the majority to legislate in the area of welfare and morals against the constitutional right of all citizens to free expression. It's an evolutionary process. Richard Pryor got rich saying things Lenny Bruce went to jail for. We all have a stake in these cases. But with the introduction of RICO forfeiture, the government has raised the ante too high for a contest with an uncertain result. Everyone involved in the pornography debate agrees that the line between smut and constitutionally protected expression is less than bright.

The prosecutor has proclaimed that the Virginia jury verdict gives distributors of adult materials "some concrete idea of what the community standard is in this district." A higher authority disagrees. Justice William Brennan has written, "The problem is . . . that one cannot say with certainty that material is obscene until at least five members of {the Supreme} Court, applying inevitably obscure standards, have pronounced it so." This truth has led three sitting Supreme Court jusices to the conclusion that pornography statutes are unconstitutional.

Oliver Wendell Holmes observed that "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree." The introduction of RICO forfeiture into the murky area of obscenity means that whether the man has estimated rightly or not may not matter at all. This fact will not be lost on those legitimate distributors of books and magazines who must, on pain of economic death, make daily correct decisions about where to draw the line as to what we can and cannot see. That line will move and, once in motion, will keep moving. The writer, a Washington lawyer, is a member and former chairman of the American Bar Association's RICO Committee. art will go at bottom right of box.