Alexander v. United States, 509 U.S. 544 (1993)

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certiorari to the united states court of appeals for the eighth circuit

No. 91-1526. Argued January 12, 1993—Decided June 28, 1993

After a full criminal trial, petitioner, the owner of numerous businesses dealing in sexually explicit materials, was convicted of, inter alia, violating federal obscenity laws and the Racketeer Influenced and Corrupt Organizations Act (RICO). The obscenity convictions, based on a finding that seven items sold at several stores were obscene, were the predicates for his RICO convictions. In addition to imposing a prison term and fine, the District Court ordered petitioner, as punishment for the RICO violations, to forfeit his businesses and almost $9 million acquired through racketeering activity. In affirming the forfeiture order, the Court of Appeals rejected petitioner's arguments that RICO's forfeiture provisions constitute a prior restraint on speech and are overbroad. The court also held that the forfeiture did not violate the Eighth Amendment, concluding that proportionality review is not required of any sentence less than life imprisonment without the possibility of parole. It did not consider whether the forfeiture was disproportionate or "excessive."

Held: 1. RICO's forfeiture provisions, as applied here, did not violate the First Amendment. Pp. 549-558. (a) The forfeiture here is a permissible criminal punishment, not a prior restraint on speech. The distinction between prior restraints and subsequent punishments is solidly grounded in this Court's cases. The term "prior restraint" describes orders forbidding certain communications that are issued before the communications occur. See, e. g., Near v. Minnesota ex rel. Olson, 283 U. S. 697. However, the order here imposes no legal impediment to petitioner's ability to engage in any expressive activity; it just prevents him from financing those activities with assets derived from his prior racketeering offenses. RICO is oblivious to the expressive or nonexpressive nature of the assets forfeited. Petitioner's assets were forfeited because they were directly related to past racketeering violations, and thus they differ from material seized or restrained on suspicion of being obscene without a prior judicial obscenity determination, as occurred in, e. g., Marcus v. Search Warrant of Kansas City, Mo., Property, 367 U. S. 717. Nor were his assets ordered forfeited without the requisite procedural safeguards.

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