Supreme Court Opinion: ALEXANDER v. UNITED STATES, 113 S.Ct. 2766,
125 L.Ed. 2d (1993)
Compiled from Internet Sources by Forfeiture Endangers American
Rights Foundation.
Holding: Although First Amendment does not
protect property owner against
forfeiture of his video store's
entire stock, under RICO, because of
a few pornographic videos, the
forfeiture must be proportionate to
the crime.
Opinions: Opinion of the Court by Chief
Justice Rehnquist (White, O'Connor,
Scalia, and Thomas, JJ., joined).
Separate opinion by Souter,
concurring in the judgment in part
and dissenting in part. Dissenting
opinion by Kennedy, joined by
Blackmun and Stevens, and in Part II
by Souter.
=================================================================
NOTE: Where it is feasible, a syllabus (headnote) will be released,
as is being done in connection with this case, at the time the
opinion is issued.
The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience
of the reader. See United States v. Detroit Lumber Co., 200 U. S.
321, 337.
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SUPREME COURT OF THE UNITED STATES
Syllabus
ALEXANDER v. UNITED STATES
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. 4-13. (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, 367 U. S. 717. Nor were his assets ordered
forfeited without the requisite procedural safeguards. Fort Wayne
Books, Inc. v. Indiana, 489 U. S. 46, distinguished. His claim is
also inconsistent with Arcara v. Cloud Books, Inc., 478 U. S. 697,
in which the Court rejected a claim that the closure of an adult
bookstore under a general nuisance statute was an improper prior
restraint. His definition of prior restraint also would undermine
the time-honored distinction between barring future speech and
penalizing past speech. Pp. 4-9.
(b) Since the RICO statute does not criminalize
constitutionally protected speech, it is materially different from
the statutes at issue in this Court's overbreadth cases. Cf.,
e.g., Board of Airport Comm'rs of Los Angeles v. Jews for Jesus,
Inc., 482 U. S. 569, 574-575. In addition, the threat of
forfeiture has no more of a ``chilling'' effect on free expression
than threats of a prison term or large fine, which are
constitutional under Fort Wayne Books. Nor can the forfeiture be
said to offend the First Amendment based on Arcara's analysis that
criminal sanctions with some incidental effect on First Amendment
activities are subject to First Amendment scrutiny where it was the
expressive conduct that drew the legal remedy, 478 U. S., at
706-707. While the conduct drawing the legal remedy here may have
been expressive, ``obscenity'' can be regulated or actually
proscribed consistent with the Amendment, see, e.g., Roth v. United
States, 354 U. S. 476, 485. Pp. 9-13.
2. The case is remanded for the Court of Appeals to consider
petitioner's claim that the forfeiture, considered atop his prison
term and fine, is ``excessive'' within the meaning of the Excessive
Fines Clause of the Eighth Amendment. The Court of Appeals
rejected petitioner's Eighth Amendment challenge with a statement
that applies only to the Amendment's prohibition against ``cruel
and unusual punishments.'' The Excessive Fines Clause limits the
Government's power to extract payments as punishment for an
offense, and the in personam criminal forfeiture at issue here is
clearly a form of monetary punishment no different, for Eighth
Amendment purposes, from a traditional ``fine.'' The question
whether or not the forfeiture was excessive must be considered in
light of the extensive criminal activities that petitioner
apparently conducted through his enormous racketeering enterprise
over a substantial period of time rather than the number of
materials actually found to be obscene. Pp. 13-14. 943 F. 2d 825,
vacated and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which
White, O'Connor, Scalia, and Thomas, JJ., joined. Souter, J.,
filed an opinion concurring in the judgment in part and dissenting
in part. Kennedy, J., filed a dissenting opinion, in which
Blackmun and Stevens, JJ., joined, and in Part II of which Souter,
J., joined.
==================================================
OPINION OF THE COURT
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D.C. 20543, of any
typographical or other formal errors, in order that corrections may
be made before the preliminary print goes to press.
==============================================================
SUPREME COURT OF THE UNITED STATES
--------
No. 91-1526
--------
FERRIS J. ALEXANDER, Sr., PETITIONER v.
UNITED STATES
on writ of certiorari to the united states court
of appeals for the eighth circuit
[June 28, 1993]
Chief Justice Rehnquist delivered the opinion of the
Court.
After a full criminal trial, petitioner Ferris J. Alexander,
owner of more than a dozen stores and theaters dealing
in sexually explicit materials, was convicted on, inter alia,
17 obscenity counts and 3 counts of violating the Racke-
teer Influenced and Corrupt Organizations Act (RICO).
The obscenity convictions, based on the jury's findings that
four magazines and three videotapes sold at several of
petitioner's stores were obscene, served as the predicates
for his three RICO convictions. In addition to imposing
a prison term and fine, the District Court ordered peti-
tioner to forfeit, pursuant to 18 U. S. C. 1963 (1988 ed.
and Supp. III), certain assets that were directly related
to his racketeering activity as punishment for his RICO
violations. Petitioner argues that this forfeiture violated
the First and Eighth Amendments to the Constitution.
We reject petitioner's claims under the First Amendment
but remand for reconsideration of his Eighth Amendment
challenge.
Petitioner was in the so-called -adult entertainment-
business for more than 30 years, selling pornographic
magazines and sexual paraphernalia, showing sexually
explicit movies, and eventually selling and renting video-
tapes of a similar nature. He received shipments of these
materials at a warehouse in Minneapolis, Minnesota,
where they were wrapped in plastic, priced, and boxed.
He then sold his products through some 13 retail stores
in several different Minnesota cities, generating millions
of dollars in annual revenues. In 1989, federal authorities
filed a 41-count indictment against petitioner and others,
alleging, inter alia, operation of a racketeering enterprise
in violation of RICO. The indictment charged 34 obscen-
ity counts and 3 RICO counts, the racketeering counts
being predicated on the obscenity charges. The indictment
also charged numerous counts of tax evasion and related
offenses that are not relevant to the questions before us.
Following a 4-month jury trial in the United States
District Court for the District of Minnesota, petitioner was
convicted of 17 substantive obscenity offenses: 12 counts
of transporting obscene material in interstate commerce
for the purpose of sale or distribution, in violation of 18
U. S. C. 1465; and 5 counts of engaging in the business
of selling obscene material, in violation of 18 U. S. C.
1466 (1988 ed. and Supp. III). He also was convicted
of 3 RICO offenses which were predicated on the obscenity
convictions: one count of receiving and using income
derived from a pattern of racketeering activity, in violation
of 18 U. S. C. 1962(a); one count of conducting a RICO
enterprise, in violation of 1962(c); and one count of con-
spiring to conduct a RICO enterprise, in violation of
1962(d). As a basis for the obscenity and RICO convic-
tions, the jury determined that four magazines and three
videotapes were obscene. Multiple copies of these maga-
zines and videos, which graphically depicted a variety of
-hard core- sexual acts, were distributed throughout
petitioner's adult entertainment empire.
Petitioner was sentenced to a total of six years in
prison, fined $100,000, and ordered to pay the cost of
prosecution, incarceration, and supervised release. In
addition to these punishments, the District Court recon-
vened the same jury and conducted a forfeiture proceeding
pursuant to 1963(a)(2). At this proceeding, the Govern-
ment sought forfeiture of the businesses and real estate
that represented petitioner's interest in the racketeering
enterprise, 1963(a)(2)(A), the property that afforded
petitioner influence over that enterprise, 1963(a)(2)(D),
and the assets and proceeds petitioner had obtained from
his racketeering offenses, 1963(a)(1), (3). The jury
found that petitioner had an interest in 10 pieces of
commercial real estate and 31 current or former busi-
nesses, all of which had been used to conduct his racke-
teering enterprise. Sitting without the jury, the District
Court then found that petitioner had acquired a variety
of assets as a result of his racketeering activities. The
court ultimately ordered petitioner to forfeit his wholesale
and retail businesses (including all the assets of those
businesses) and almost $9 million in moneys acquired
through racketeering activity.
The Court of Appeals affirmed the District Court's
forfeiture order. Alexander v. Thornburgh, 943 F. 2d 825
(CA8 1991). It rejected petitioner's argument that the
application of RICO's forfeiture provisions constituted a
prior restraint on speech and hence violated the First
Amendment. Recognizing the well-established distinction
between prior restraints and subsequent criminal punish-
ments, the Court of Appeals found that the forfeiture here
was -a criminal penalty imposed following a conviction for
conducting an enterprise engaged in racketeering activi-
ties,- and not a prior restraint on speech. Id., at 834.
The court also rejected petitioner's claim that RICO's
forfeiture provisions are constitutionally overbroad, point-
ing out that the forfeiture order was properly limited to
assets linked to petitioner's past racketeering offenses.
Id., at 835. Lastly, the Court of Appeals concluded that
the forfeiture order does not violate the Eighth
Amendment's prohibition against -cruel and unusual
punishments- and -excessive fines.- In so ruling, however,
the court did not consider whether the forfeiture in this
case was grossly disproportionate or excessive, believing
that the Eighth Amendment -`does not require a propor-
tionality review of any sentence less than life imprison-
ment without the possibility of parole.'- Id., at 836
(quoting United States v. Pryba, 900 F. 2d 748, 757 (CA4),
cert. denied, 498 U. S. 924 (1990)). We granted certiorari,
505 U. S. -- (1992).
Petitioner first contends that the forfeiture in this case,
which effectively shut down his adult entertainment
business, constituted an unconstitutional prior restraint
on speech, rather than a permissible criminal punishment.
According to petitioner, forfeiture of expressive materials
and the assets of businesses engaged in expressive activ-
ity, when predicated solely upon previous obscenity viola-
tions, operates as a prior restraint because it prohibits
future presumptively protected expression in retaliation
for prior unprotected speech. Practically speaking, peti-
tioner argues, the effect of the RICO forfeiture order here
was no different from the injunction prohibiting the
publication of expressive material found to be a prior
restraint in Near v. Minnesota ex rel. Olson, 283 U. S. 697
(1931). As petitioner puts it, see Brief for Petitioner 25,
the forfeiture order imposed a complete ban on his future
expression because of previous unprotected speech. We
disagree. By lumping the forfeiture imposed in this case
after a full criminal trial with an injunction enjoining
future speech, petitioner stretches the term -prior re-
straint- well beyond the limits established by our cases.
To accept petitioner's argument would virtually obliterate
the distinction, solidly grounded in our cases, between
prior restraints and subsequent punishments.
The term prior restraint is used -to describe administra-
tive and judicial orders forbidding certain communications
when issued in advance of the time that such communica-
tions are to occur.- M. Nimmer, Nimmer on Freedom of
Speech 4.03, p. 4-14 (1984) (emphasis added). Tempo-
rary restraining orders and permanent injunctions-i.e.,
court orders that actually forbid speech activities-are
classic examples of prior restraints. See id., 4.03, at
4-16. This understanding of what constitutes a prior
restraint is borne out by our cases, even those on which
petitioner relies. In Near v. Minnesota ex rel. Olson,
supra, we invalidated a court order that perpetually
enjoined the named party, who had published a newspaper
containing articles found to violate a state nuisance
statute, from producing any future -malicious, scandalous
and defamatory- publication. Near, therefore, involved a
true restraint on future speech-a permanent injunction.
So, too, did Organization for a Better Austin v. Keefe, 402
U. S. 415 (1971), and Vance v. Universal Amusement Co.,
445 U. S. 308 (1980) (per curiam), two other cases cited
by petitioner. In Keefe, we vacated an order -enjoining
petitioners from distributing leaflets anywhere in the town
of Westchester, Illinois.- 402 U. S., at 415 (emphasis
added). And in Vance, we struck down a Texas statute
that authorized courts, upon a showing that obscene films
had been shown in the past, to issue an injunction of
indefinite duration prohibiting the future exhibition of
films that have not yet been found to be obscene. 445
U. S., at 311. See also New York Times Co. v. United
States, 403 U. S. 713, 714 (1971) (per curiam) (Govern-
ment sought to enjoin publication of the Pentagon Papers).
By contrast, the RICO forfeiture order in this case does
not forbid petitioner from engaging in any expressive
activities in the future, nor does it require him to obtain
prior approval for any expressive activities. It only de-
prives him of specific assets that were found to be related
to his previous racketeering violations. Assuming, of
course, that he has sufficient untainted assets to open
new stores, restock his inventory, and hire staff, petitioner
can go back into the adult entertainment business tomor-
row, and sell as many sexually explicit magazines and
videotapes as he likes, without any risk of being held in
contempt for violating a court order. Unlike the injunc-
tions in Near, Keefe, and Vance, the forfeiture order in
this case imposes no legal impediment to-no prior
restraint on-petitioner's ability to engage in any expres-
sive activity he chooses. He is perfectly free to open an
adult bookstore or otherwise engage in the production and
distribution of erotic materials; he just cannot finance
these enterprises with assets derived from his prior
racketeering offenses.
The constitutional infirmity in nearly all of our prior
restraint cases involving obscene material, including those
on which petitioner and the dissent rely, see post, at 12,
18-19, was that Government had seized or otherwise
restrained materials suspected of being obscene without
a prior judicial determination that they were in fact so.
See, e.g., Marcus v. Search Warrant, 367 U. S. 717 (1961);
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); A
Quantity of Copies of Books v. Kansas, 378 U. S. 205
(1964); Roaden v. Kentucky, 413 U. S. 496 (1973); Vance,
supra. In this case, however, the assets in question were
not ordered forfeited because they were believed to be
obscene, but because they were directly related to
petitioner's past racketeering violations. The RICO
forfeiture statute calls for the forfeiture of assets because
of the financial role they play in the operation of the
racketeering enterprise. The statute is oblivious to the
expressive or nonexpressive nature of the assets forfeited;
books, sports cars, narcotics, and cash are all forfeitable
alike under RICO. Indeed, a contrary scheme would be
disastrous from a policy standpoint, enabling racketeers
to evade forfeiture by investing the proceeds of their
crimes in businesses engaging in expressive activity.
Nor were the assets in question ordered forfeited
without according petitioner the requisite procedural
safeguards, another recurring theme in our prior restraint
cases. Contrasting this case with Fort Wayne Books, Inc.
v. Indiana, 489 U. S. 46 (1989), aptly illustrates this
point. In Fort Wayne Books, we rejected on constitutional
grounds the pretrial seizure of certain expressive material
that was based upon a finding of -no more than probable
cause to believe that a RICO violation had occurred.- Id.,
at 66 (emphasis in original). In so holding, we empha-
sized that there had been no prior judicial -determination
that the seized items were `obscene' or that a RICO
violation ha[d] occurred.- Ibid. (emphasis in original).
-[M]ere probable cause to believe a legal violation ha[d]
transpired,- we said, -is not adequate to remove books or
films from circulation.- Ibid. Here, by contrast, the
seizure was not premature, because the Government
established beyond a reasonable doubt the basis for the
forfeiture. Petitioner had a full criminal trial on the
merits of the obscenity and RICO charges during which
the Government proved that four magazines and three
videotapes were obscene and that the other forfeited
assets were directly linked to petitioner's commission of
racketeering offenses.
Petitioner's claim that the RICO forfeiture statute
operated as an unconstitutional prior restraint in this case
is also inconsistent with our decision in Arcara v. Cloud
Books, Inc., 478 U. S. 697 (1986). In that case, we
sustained a court order, issued under a general nuisance
statute, that closed down an adult bookstore that was
being used as a place of prostitution and lewdness. In
rejecting out-of-hand a claim that the closure order
amounted to an improper prior restraint on speech, we
stated:
-The closure order sought in this case differs from a
prior restraint in two significant respects. First, the
order would impose no restraint at all on the dissemi-
nation of particular materials, since respondents are
free to carry on their bookselling business at another
location, even if such locations are difficult to find.
Second, the closure order sought would not be im-
posed on the basis of an advance determination that
the distribution of particular materials is prohib-
ited-indeed, the imposition of the closure order has
nothing to do with any expressive conduct at all.-
Id., at 705-706, n. 2.
This reasoning applies with equal force to this case, and
thus confirms that the RICO forfeiture order was not a
prior restraint on speech, but a punishment for past
criminal conduct. Petitioner attempts to distinguish
Arcara on the ground that obscenity, unlike prostitution
or lewdness, has -`a significant expressive element.'-
Brief for Petitioner 16 (quoting Arcara, supra, at 706).
But that distinction has no bearing on the question
whether the forfeiture order in this case was an impermis-
sible prior restraint.
Finally, petitioner's proposed definition of the term
-prior restraint- would undermine the time-honored
distinction between barring speech in the future and
penalizing past speech. The doctrine of prior restraint
originated in the common law of England, where prior
restraints of the press were not permitted, but punish-
ment after publication was. This very limited application
of the principle of freedom of speech was held inconsistent
with our First Amendment as long ago as Grosjean v.
American Press Co., 297 U. S. 233, 246 (1936). While we
may have given a broader definition to the term -prior
restraint- than was given to it in English common law,
our decisions have steadfastly preserved the distinction
between prior restraints and subsequent punishments.
Though petitioner tries to dismiss this distinction as
-neither meaningful nor useful,- Brief for Petitioner 29,
we think it is critical to our First Amendment jurispru-
dence. Because we have interpreted the First Amendment
as providing greater protection from prior restraints than
from subsequent punishments, see Southeastern Promo-
tions, Ltd. v. Conrad, 420 U. S. 546, 558-559 (1975), it
is important for us to delineate with some precision the
defining characteristics of a prior restraint. To hold that
the forfeiture order in this case constituted a prior re-
straint would have the exact opposite effect: it would blur
the line separating prior restraints from subsequent
punishments to such a degree that it would be impossible
to determine with any certainty whether a particular
measure is a prior restraint or not.
In sum, we think that fidelity to our cases requires us
to analyze the forfeiture here not as a prior restraint, but
under normal First Amendment standards. So analyzing
it, we find that petitioner's claim falls well short of the
mark. He does not challenge either his 6-year jail sen-
tence or his $100,000 fine as violative of the First Amend-
ment. The first inquiry that comes to mind, then, is why,
if incarceration for six years and a fine of $100,000 are
permissible forms of punishment under the RICO statute,
the challenged forfeiture of certain assets directly related
to petitioner's racketeering activity is not. Our cases
support the instinct from which this question arises; they
establish quite clearly that the First Amendment does not
prohibit either stringent criminal sanctions for obscenity
offenses or forfeiture of expressive materials as punish-
ment for criminal conduct.
We have in the past rejected First Amendment chal-
lenges to statutes that impose severe prison sentences and
fines as punishment for obscenity offenses. See, e.g.,
Ginzburg v. United States, 383 U. S. 463, 464-465, n. 2
(1966); Smith v. United States, 431 U. S. 291, 296, n. 3
(1977); Fort Wayne Books, 489 U. S., at 59, n. 8. Peti-
tioner does not question the holding of those cases; he
instead argues that RICO's forfeiture provisions are
constitutionally overbroad, because they are not limited
solely to obscene materials and the proceeds from the sale
of such materials. Petitioner acknowledges that this is an
unprecedented use of the overbreadth principle. See Brief
for Petitioner 36. The -overbreadth- doctrine, which is a
departure from traditional rules of standing, permits a
defendant to make a facial challenge to an overly broad
statute restricting speech, even if he himself has engaged
in speech that could be regulated under a more narrowly
drawn statute. See, e.g., Broadrick v. Oklahoma, 413
U. S. 601, 612-613 (1973); City Council of Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 798-801 (1984).
But the RICO statute does not criminalize constitutionally
protected speech and therefore is materially different from
the statutes at issue in our overbreadth cases. Cf., e.g.,
Board of Airport Comm'rs of Los Angeles v. Jews for
Jesus, Inc., 482 U. S. 569, 574-575 (1987).
Petitioner's real complaint is not that the RICO statute
is overbroad, but that applying RICO's forfeiture provi-
sions to businesses dealing in expressive materials may
have an improper -chilling- effect on free expression by
deterring others from engaging in protected speech. No
doubt the monetarily large forfeiture in this case may
induce cautious booksellers to practice self-censorship and
remove marginally protected materials from their shelves
out of fear that those materials could be found obscene
and thus subject them to forfeiture. But the defendant
in Fort Wayne Books made a similar argument, which was
rejected by the Court in this language:
``[D]eterence of the sale of obscene materials is a
legitimate end of state antiobscenity laws, and our
cases have long recognized the practical reality that
`any form of criminal obscenity statute applicable to
a bookseller will induce some tendency to self-censor-
ship and have some inhibitory effect on the dissemi-
nation of material not obscene.''' 489 U. S., at 60
(quoting Smith v. California, 361 U. S. 147, 154-155
(1959)).
Fort Wayne Books is dispositive of any chilling argument
here, since the threat of forfeiture has no more of a
chilling effect on free expression than the threat of a
prison term or a large fine. Each racketeering charge
exposes a defendant to a maximum penalty of 20 years'
imprisonment and a fine of up to $250,000. 18 U. S. C.
1963(a) (1988 ed. and Supp. III). Needless to say, the
prospect of such a lengthy prison sentence would have a
far more powerful deterrent effect on protected speech
than the prospect of any sort of forfeiture. Cf. Blanton
v. North Las Vegas, 489 U. S. 538, 542 (1989) (loss of
liberty is a more severe form of punishment than any
monetary sanction). Similarly, a fine of several hundred
thousand dollars would certainly be just as fatal to most
businesses-and, as such, would result in the same degree
of self-censorship-as a forfeiture of assets. Yet these
penalties are clearly constitutional under Fort Wayne
Books.
We also have rejected a First Amendment challenge to
a court order closing down an entire business that was
engaged in expressive activity as punishment for criminal
conduct. See Arcara, 478 U. S., at 707. Once again,
petitioner does not question the holding of that case; in
fact, he concedes that expressive businesses and assets
can be forfeited under RICO as punishment for, say,
narcotic offenses. See Brief for Petitioner 11 (-forfeiture
of a media business purchased by a drug cartel would be
constitutionally permissible-). Petitioner instead insists
that the result here should be different because the RICO
predicate acts were obscenity offenses. In Arcara, we held
that criminal and civil sanctions having some incidental
effect on First Amendment activities are subject to First
Amendment scrutiny -only where it was conduct with a
significant expressive element that drew the legal remedy
in the first place, as in [United States v.] O'Brien, [391
U. S. 367 (1968)] or where a statute based on a
nonexpressive activity has the inevitable effect of singling
out those engaged in expressive activity, as in Minneapolis
Star [& Tribune Co. v. Minnesota Comm'r of Revenue, 460
U. S. 575 (1983)].- 478 U. S., at 706-707 (footnote
omitted). Applying that standard, we held that prostitu-
tion and lewdness, the criminal conduct at issue in
Arcara, involve neither situation, and thus concluded that
the First Amendment was not implicated by the enforce-
ment of a general health regulation resulting in the
closure of an adult bookstore. Id., at 707. Under our
analysis in Arcara, the forfeiture in this case cannot be
said to offend the First Amendment. To be sure, the
conduct that -drew the legal remedy- here-racketeering
committed through obscenity violations-may be -expres-
sive,- see R. A. V. v. St. Paul, 505 U. S. --, -- (1992),
but our cases clearly hold that -obscenity- can be regulat-
ed or actually proscribed consistent with the First Amend-
ment, see, e.g., Roth v. United States, 354 U. S. 476, 485
(1957); Miller v. California, 413 U. S. 15, 23 (1973).
Confronted with our decisions in Fort Wayne Books and
Arcara-neither of which he challenges-petitioner's
position boils down to this: stiff criminal penalties for
obscenity offenses are consistent with the First Amend-
ment; so is the forfeiture of expressive materials as
punishment for criminal conduct; but the combination of
the two somehow results in a violation of the First
Amendment. We reject this counter-intuitive conclusion,
which in effect would say that the whole is greater than
the sum of the parts.
Petitioner also argues that the forfeiture order in this
case-considered atop his 6-year prison term and $100,000
fine-is disproportionate to the gravity of his offenses and
therefore violates the Eighth Amendment, either as a
-cruel and unusual punishment- or as an -excessive
fine.- Brief for Petitioner 40. The Court of Appeals,
though, failed to distinguish between these two compo-
nents of petitioner's Eighth Amendment challenge.
Instead, the court lumped the two together, disposing of
them both with the general statement that the Eighth
Amendment does not require any proportionality review
of a sentence less than life imprisonment without the
possibility of parole. 943 F. 2d, at 836. But that state-
ment has relevance only to the Eighth Amendment's
prohibition against cruel and unusual punishments.
Unlike the Cruel and Unusual Punishments Clause, which
is concerned with matters such as the duration or condi-
tions of confinement, -[t]he Excessive Fines Clause limits
the Government's power to extract payments, whether in
cash or in kind, as punishment for some offense.- Austin
v. United States, -- U. S. --, -- (1993) (slip op., at
6-7) (emphasis and internal quotation marks omitted);
accord, Browning-Ferris Industries of Vermont, Inc. v.
Kelco Disposal, Inc., 492 U. S. 257, 265 (1989) (-[A]t the
time of the drafting and ratification of the [Eighth]
Amendment, the word `fine' was understood to mean a
payment to a sovereign as punishment for some offense-);
id., at 265, n. 6. The in personam criminal forfeiture at
issue here is clearly a form of monetary punishment no
different, for Eighth Amendment purposes, from a tradi-
tional -fine.- Accord Austin, supra. Accordingly, the
forfeiture in this case should be analyzed under the
Excessive Fines Clause.
Petitioner contends that forfeiture of his entire business
was an -excessive- penalty for the Government to exact
-[o]n the basis of a few materials the jury ultimately
decided were obscene.- Brief for Petitioner 40. It is
somewhat misleading, we think, to characterize the
racketeering crimes for which petitioner was convicted as
involving just a few materials ultimately found to be
obscene. Petitioner was convicted of creating and manag-
ing what the District Court described as -an enormous
racketeering enterprise.- App. to Pet. for Cert. 160. It
is in the light of the extensive criminal activities which
petitioner apparently conducted through this racketeering
enterprise over a substantial period of time that the
question of whether or not the forfeiture was -excessive-
must be considered. We think it preferable that this
question be addressed by the Court of Appeals in the first
instance.
For these reasons, we hold that RICO's forfeiture
provisions, as applied in this case, did not violate the
First Amendment, but that the Court of Appeals should
have considered whether they resulted in an -excessive-
penalty within the meaning of the Eighth Amendment's
Excessive Fines Clause. Accordingly, we vacate the
judgment of the Court of Appeals and remand the case for
further proceedings consistent with this opinion.
It is so ordered.
=======================================================
SUPREME COURT OF THE UNITED STATES
--------
No. 91-1526
--------
FERRIS J. ALEXANDER, Sr., PETITIONER v.
UNITED STATES
on writ of certiorari to the united states court
of appeals for the eighth circuit
[June 28, 1993]
Justice Kennedy, with whom Justice Blackmun and
Justice Stevens join, and with whom Justice Souter
joins as to Part II, dissenting.
The Court today embraces a rule that would find no
affront to the First Amendment in the Government's
destruction of a book and film business and its entire
inventory of legitimate expression as punishment for a
single past speech offense. Until now I had thought one
could browse through any book or film store in the United
States without fear that the proprietor had chosen each
item to avoid risk to the whole inventory and indeed to
the business itself. This ominous, onerous threat under-
mines free speech and press principles essential to our
personal freedom.
Obscenity laws would not work unless an offender could
be arrested and imprisoned despite the resulting chill on
his own further speech. But, at least before today, we
have understood state action directed at protected books
or other expressive works themselves to raise distinct
constitutional concerns. The Court's decision is a grave
repudiation of First Amendment principles, and with
respect I dissent.
I
A
The majority believes our cases -establish quite clearly
that the First Amendment does not prohibit either strin-
gent criminal sanctions for obscenity offenses or forfeiture
of expressive materials as punishment for criminal con-
duct.- Ante, at 10. True, we have held that obscenity is
expression which can be regulated and punished, within
proper limitations, without violating the First Amendment.
See, e.g., New York v. Ferber, 458 U. S. 747 (1982); Miller
v. California, 413 U. S. 15 (1973); Paris Adult Theater I
v. Slaton, 413 U. S. 49, 57-58 (1973); Roth v. United
States, 354 U. S. 476 (1957). And the majority is correct
to note that we have upheld stringent fines and jail terms
as punishments for violations of the federal obscenity
laws. See Fort Wayne Books, Inc. v. Indiana, 489 U. S.
46, 60 (1989); Ginzburg v. United States, 383 U. S. 463,
464-465, n. 2 (1966). But that has little to do with the
destruction of protected titles and the facilities for their
distribution or publication. None of our cases address
that matter, or it would have been unnecessary for us to
reserve the specific question four Terms ago in Fort
Wayne Books, Inc. v. Indiana, supra, at 60, 65.
The fundamental defect in the majority's reasoning is
a failure to recognize that the forfeiture here cannot be
equated with traditional punishments such as fines and
jail terms. Noting that petitioner does not challenge
either the 6-year jail sentence or the $100,000 fine im-
posed against him as punishment for his RICO convic-
tions, the majority ponders why RICO's forfeiture penalty
should be any different. See ante, at 9. The answer is that
RICO's forfeiture penalties are different from traditional
punishments by Congress' own design as well as in their
First Amendment consequences.
The federal Racketeer Influenced and Corrupt Organiza-
tions Act (RICO) statute was passed to eradicate the
infiltration of legitimate business by organized crime.
Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18
U. S. C. 1961-1968 (1988 ed. and Supp. III). Earlier
steps to combat organized crime were not successful, in
large part because traditional penalties targeted individu-
als engaged in racketeering activity rather than the
criminal enterprise itself. Punishing racketeers with fines
and jail terms failed to break the cycle of racketeering
activity because the criminal enterprises had the resources
to replace convicted racketeers with new recruits. In
passing RICO, Congress adopted a new approach aimed
at the economic roots of organized crime:
-What is needed here . . . are new approaches that
will deal not only with individuals, but also with the
economic base through which those individuals consti-
tute such a serious threat to the economic well-being
of the Nation. In short, an attack must be made on
their source of economic power itself, and the attack
must take place on all available fronts.- S. Rep.
No. 91-617, p. 79 (1969).
Criminal liability under RICO is premised on the
commission of a -pattern of racketeering activity,- defined
by the statute as engaging in two or more related predi-
cate acts of racketeering within a 10-year period. 18
U. S. C. 1961(5). A RICO conviction subjects the viola-
tor not only to traditional, though stringent, criminal fines
and prison terms, but also mandatory forfeiture under
1963. It is the mandatory forfeiture penalty that is at
issue here.
While forfeiture remedies have been employed with
increasing frequency in civil proceedings, forfeiture reme-
dies and penalties are the subject of historic disfavor in
our country. Although in personam forfeiture statutes
were well grounded in the English common law, see
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663,
682-683 (1974), in personam criminal forfeiture penalties
like those authorized under 1963 were unknown in the
federal system until the enactment of RICO in 1970. See
1 C. Wright, Federal Practice and Procedure 125.1,
p. 389 (2d ed. 1982). Section 1963's forfeiture penalties
are novel for their punitive character as well as for their
unprecedented sweep. Civil in rem forfeiture is limited
in application to contraband and articles put to unlawful
use, or in its broadest reach, to proceeds traceable to
unlawful activity. See United States v. Parcel of Land,
92 Buena Vista Ave., Runson, 507 U. S. ___, ___ (1993);
The Palmyra, 12 Wheat. 1, 14-15 (1827). Extending
beyond contraband or its traceable proceeds, RICO man-
dates the forfeiture of property constituting the defend-
ant's -interest in the racketeering enterprise- and property
affording the violator a -source of influence- over the
RICO enterprise. 18 U. S. C. 1963 (a). In a previous
decision, we acknowledged the novelty of RICO's penalty
scheme, stating that Congress passed RICO to provide
-new weapons of unprecedented scope for an assault upon
organized crime and its economic roots.- Russello v.
United States, 464 U. S. 16, 26 (1983).
As enacted in 1970, RICO targeted offenses then
thought endemic to organized crime. 18 U. S. C.
1961(1). When RICO was amended in 1984 to include
obscenity as a predicate offense, there was no comment
or debate in Congress on the First Amendment implica-
tions of the change. Act of Oct. 12, 1984, Pub. L. 98-473,
98 Stat. 2143. The consequence of adding a speech
offense to a statutory scheme designed to curtail a differ-
ent kind of criminal conduct went far beyond the imposi-
tion of severe penalties for obscenity offenses. The result
was to render vulnerable to government destruction any
business daring to deal in sexually explicit materials. The
unrestrained power of the forfeiture weapon was not lost
on the Executive Branch, which was quick to see in the
amended statute the means and opportunity to move
against certain types of disfavored speech. The Attorney
General's Commission on Pornography soon advocated the
use of RICO and similar state statutes to -substantially
handicap- or -eliminate- pornography businesses. 1
United States Dept. of Justice, Attorney General's Com-
mission on Pornography, Final Report 498 (1986). As
these comments illustrate, the constitutional concerns
raised by a penalty of this destructive capacity are distinct
from the concerns raised by traditional methods of
punishment.
The Court says that, taken together, our decisions in
Fort Wayne Books and Arcara v. Cloud Books, Inc., 478
U. S. 697 (1986) dispose of petitioner's First Amendment
argument. See ante, at 12-13. But while instructive,
neither case is dispositive. In Fort Wayne Books we
considered a state law patterned on the federal RICO
statute, and upheld its scheme of using obscenity offenses
as the predicate acts resulting in fines and jail terms of
great severity. We recognized that the fear of severe
penalties may result in some self-censorship by cautious
booksellers, but concluded that this is a necessary conse-
quence of conventional obscenity prohibitions. Fort Wayne
Books, 489 U. S., at 60. In rejecting the argument that
the fines and jail terms in Fort Wayne Books infringed
upon First Amendment principles, we regarded the
penalties as equivalent to a sentence enhancement for
multiple obscenity violations, a remedy of accepted consti-
tutional legitimacy. Id., at 59-60. We did not consider
in Fort Wayne Books the First Amendment implications
of extensive penal forfeitures, including the official de-
struction of protected expression. Further, while Fort
Wayne Books acknowledges that some degree of self-
censorship may be unavoidable in obscenity regulation, the
alarming element of the forfeiture scheme here is the
pervasive danger of government censorship, an issue, I
submit, the Court does not confront.
In Arcara, we upheld against First Amendment chal-
lenge a criminal law requiring the temporary closure of
an adult book store as a penal sanction for acts of
prostitution occurring on the premises. We did not subject
the closure penalty to First Amendment scrutiny even
though the collateral consequence of its imposition would
be to affect interests of traditional First Amendment
concern. We said that such scrutiny was not required
when a criminal penalty followed conduct -manifest[ing]
absolutely no element of protected expression.- 478 U. S.,
at 705. That the RICO prosecution of Alexander involved
the targeting of a particular class of unlawful speech itself
suffices to distinguish the instant case from Arcara.
There can be little doubt that regulation and punishment
of certain classes of unprotected speech has implications
for other speech which is close to the proscribed line,
speech which is entitled to the protections of the First
Amendment. See Speiser v. Randall, 357 U. S. 513, 525
(1958). Further, a sanction requiring the temporary
closure of a book store cannot be equated, as it is under
the Court's unfortunate analysis, see ante, at 11-12, with
a forfeiture punishment mandating its permanent destruc-
tion.
B
The majority tries to occupy the high ground by assum-
ing the role of the defender of the doctrine of prior
restraint. It warns that we disparage the doctrine if we
reason from it. But as an analysis of our prior restraint
cases reveals, our application of the First Amendment has
adjusted to meet new threats to speech. The First
Amendment is a rule of substantive protection, not an
artifice of categories. The admitted design and the overt
purpose of the forfeiture in this case are to destroy an
entire speech business and all its protected titles, thus
depriving the public of access to lawful expression. This
is restraint in more than theory. It is censorship all too
real.
Relying on the distinction between prior restraints and
subsequent punishments, ante, at 3, 8, the majority labels
the forfeiture imposed here a punishment and dismisses
any further debate over the constitutionality of the
forfeiture penalty under the First Amendment. Our cases
do recognize a distinction between prior restraints and
subsequent punishments, but that distinction is neither
so rigid nor so precise that it can bear the weight the
Court places upon it to sustain the destruction of a speech
business and its inventory as a punishment for past
expression.
In its simple, most blatant form, a prior restraint is a
law which requires submission of speech to an official who
may grant or deny permission to utter or publish it based
upon its contents. See Staub v. City of Baxley, 355 U. S.
313, 322 (1958); Joseph Burstyn, Inc. v. Wilson, 343 U. S.
495, 503 (1952); A Quantity of Copies of Books v. Kansas,
378 U. S. 205, 222 (1964) (Harlan, J., dissenting); see also
M. Nimmer, Nimmer on Freedom of Speech 4.03, p. 4-14
(1984). In contrast are laws which punish speech or
expression only after it has occurred and been found
unlawful. See Kingsley Books, Inc. v. Brown, 354 U. S.
436, 440-442 (1957). While each mechanism, once im-
posed, may abridge speech in a direct way by suppressing
it, or in an indirect way by chilling its dissemination, we
have interpreted the First Amendment as providing
greater protection from prior restraints than from subse-
quent punishments. See, e.g., Arcara v. Cloud Books,
Inc., supra, at 705-706; Southeastern Promotions, Ltd. v.
Conrad, 420 U. S. 546, 558-559 (1975); Kingsley Books,
Inc. v. Brown, supra, at 440-442. In Southeastern Promo-
tions, Ltd. v. Conrad, we explained that -[b]ehind the
distinction is a theory deeply etched in our law: a free
society prefers to punish the few who abuse rights of
speech after they break the law than to throttle them and
all others beforehand.- 420 U. S., at 559.
It has been suggested that the distinction between prior
restraints and subsequent punishments may have slight
utility, see M. Nimmer, supra, at 4.04, pp. 4-18 to 4-25,
for in a certain sense every criminal obscenity statute is
a prior restraint because of the caution a speaker or
bookseller must exercise to avoid its imposition. See
Vance v. Universal Amusement Co., 445 U. S. 308, 324
(1980) (White, J., dissenting, joined by Rehnquist, J.);
also Jeffries, Rethinking Prior Restraint, 92 Yale L. J.
409, 437 (1982). To be sure, the term prior restraint is
not self-defining. One problem, of course, is that some
governmental actions may have the characteristics both
of punishment and prior restraint. A historical example
is the sentence imposed on Hugh Singleton in 1579 after
he had enraged Elizabeth I by printing a certain tract.
See F. Siebert, Freedom of the Press in England,
1476-1776, pp. 91-92 (1952). Singleton was condemned
to lose his right hand, thus visiting upon him both a
punishment and a disability encumbering all further
printing. Though the sentence appears not to have been
carried out, it illustrates that a prior restraint and a
subsequent punishment may occur together. Despite the
concurrent operation of the two kinds of prohibitions in
some cases, the distinction between them persists in our
law, and it is instructive here to inquire why this is so.
Early in our legal tradition the source of the distinction
was the English common law, in particular the oft cited
passage from William Blackstone's 18th-century Com-
mentaries on the Laws of England. He observed as
follows:
``The liberty of the press is indeed essential to the
nature of a free state; but this consists in laying no
previous restraints upon publications, and not in
freedom from censure for criminal matter when
published. Every freeman has an undoubted right to
lay what sentiments he pleases before the public: to
forbid this, is to destroy the freedom of the press: but
if he publishes what is improper, mischievous, or
illegal, he must take the consequence of his own
temerity.'' 4 W. Blackstone, Commentaries *151-*152.
The English law which Blackstone was compiling had
come to distrust prior restraints, but with little accompa-
nying condemnation of subsequent punishments. Part of
the explanation for this lies in the circumstance that, in
the centuries before Blackstone wrote, prior censorship,
including licensing, was the means by which the Crown
and the Parliament controlled speech and press. See F.
Siebert, Freedom of the Press in England, 1476-1776,
pp. 56-63, 68-74 (1952). As those methods were the
principal means used by government to control speech and
press, it follows that an unyielding populace would devote
its first efforts to avoiding or repealing restrictions in that
form.
Even as Blackstone wrote, however, subsequent punish-
ments were replacing the earlier censorship schemes as
the mechanism for government control over disfavored
speech in England. Whether Blackstone's apparent
tolerance of subsequent punishments resulted from his
acceptance of the English law as it then existed or his
failure to grasp the potential threat these measures posed
to liberty, or both, subsequent punishment in the broad
sweep that he commented upon would be in flagrant
violation of the principles of free speech and press that
we have come to know and understand as being funda-
mental to our First Amendment freedoms. Indeed, in the
beginning of our Republic, James Madison argued against
the adoption of Blackstone's definition of free speech under
the First Amendment. Said Madison: -this idea of the
freedom of the press can never be admitted to be the
American idea of it- because a law inflicting penalties
would have the same effect as a law authorizing a prior
restraint. 6 Writings of James Madison 386 (G. Hunt
1906).
The enactment of the alien and sedition laws early in
our own history is an unhappy testament to the allure
that restrictive measures have for governments tempted
to control the speech and publications of their people.
And our earliest cases tended to repeat the suggestion by
Blackstone that prior restraints were the sole concern of
First Amendment protections. See Patterson v. Colorado
ex rel. Attorney General of Colorado, 205 U. S. 454, 462
(1907); Robertson v. Baldwin, 165 U. S. 275, 281 (1897).
In time, however, the Court rejected the notion that First
Amendment freedoms under our Constitution are coexten-
sive with liberties available under the common law of
England. See Grosjean v. American Press Co., 297 U. S.
233, 248-249 (1936). From this came the conclusion that
-[t]he protection of the First Amendment . . . is not
limited to the Blackstonian idea that freedom of the press
means only freedom from restraint prior to publication.-
Chaplinsky v. New Hampshire, 315 U. S. 568, 572, n. 3
(1942).
As our First Amendment law has developed, we have
not confined the application of the prior restraint doctrine
to its simpler forms, outright licensing or censorship
before speech takes place. In considering governmental
measures deviating from the classic form of a prior
restraint yet posing many of the same dangers to First
Amendment freedoms, we have extended prior restraint
protection with some latitude, toward the end of declaring
certain governmental actions to fall within the presump-
tion of invalidity. This approach is evident in Near v.
Minnesota ex rel. Olson, 283 U. S. 697 (1931), the leading
case in which we invoked the prior restraint doctrine to
invalidate a state injunctive decree.
In Near a Minnesota statute authorized judicial proceed-
ings to abate as a nuisance a -`malicious, scandalous and
defamatory newspaper, magazine or other periodical.'- Id.,
at 701-702. In a suit brought by the attorney for
Hennepin County it was established that Near had
published articles in various editions of The Saturday
Press in violation of the statutory standard. Id., at
703-705. Citing the instance of these past unlawful
publications, the court enjoined any future violations of
the state statute. Id., at 705. In one sense the injunctive
order, which paralleled the nuisance statute, did nothing
more than announce the conditions under which some
later punishment might be imposed, for one presumes that
contempt could not be found until there was a further
violation in contravention of the order. But in Near the
publisher, because of past wrongs, was subjected to active
state intervention for the control of future speech. We
found that the scheme was a prior restraint because it
embodied -the essence of censorship.- Id., at 713. This
understanding is confirmed by our later decision in
Kingsley Books v. Brown, where we said that it had been
enough to condemn the injunction in Near that Minnesota
had -empowered its courts to enjoin the dissemination of
future issues of a publication because its past issues had
been found offensive.- 354 U. S., at 445.
Indeed the Court has been consistent in adopting a
speech-protective definition of prior restraint when the
state attempts to attack future speech in retribution for
a speaker's past transgressions. See Vance v. Universal
Amusement Co., 445 U. S. 308 (1980) (per curiam) (invali-
dating as a prior restraint procedure authorizing state
courts to abate as a nuisance an adult theater which had
exhibited obscene films in the past because the effect of
the procedure was to prevent future exhibitions of pictures
not yet found to be obscene). It is a flat misreading of
our precedents to declare as the majority does that the
definition of a prior restraint includes only those measures
which impose a -legal impediment,- ante, at 6, on a
speaker's ability to engage in future expressive activity.
Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963),
best illustrates the point. There a state commission did
nothing more than warn book sellers that certain titles
could be obscene, implying that criminal prosecutions
could follow if their warnings were not heeded. The
commission had no formal enforcement powers and failure
to heed its warnings was not a criminal offense. Although
the commission could impose no legal impediment on a
speaker's ability to engage in future expressive activity,
we held that scheme was an impermissible -system of
prior administrative restraints.- Id., at 70. There we
said: -We are not the first court to look through forms to
the substance and recognize that informal censorship may
sufficiently inhibit the circulation of publications to
warrant injunctive relief.- Id., at 67. If mere warning
against sale of certain materials was a prior restraint, I
fail to see why the physical destruction of a speech
enterprise and its protected inventory is not condemned
by the same doctrinal principles.
One wonders what today's majority would have done if
faced in Near with a novel argument to extend the
traditional conception of the prior restraint doctrine. In
view of the formalistic approach the Court advances today,
the Court likely would have rejected Near's pleas on the
theory that to accept his argument would be to -blur the
line separating prior restraints from subsequent
punishments to such a degree that it would be impossible
to determine with any certainty whether a particular
measure is a prior restraint or not.- Ante, at 9. In so
holding the Court would have ignored, as the Court does
today, that the applicability of First Amendment analysis
to a governmental action depends not alone upon the
name by which the action is called, but upon its operation
and effect on the suppression of speech. Near, supra, at
708 (-the court has regard to substance and not to mere
matters of form, and . . . in accordance with familiar
principles . . . statute[s] must be tested by [their] opera-
tion and effect-). See also Smith v. Daily Mail Publishing
Co., 443 U. S. 97, 101 (1979) (the First Amendment's
application to a civil or criminal sanction is not deter-
mined solely by whether that action is viewed -as a prior
restraint or as a penal sanction-); Southeastern
Promotions, Ltd. v. Conrad, 420 U. S., at 552-553 (chal-
lenged action is -indistinguishable in its censoring effect-
from official actions consistently identified as prior re-
straints); Schneider v. State (Town of Irvington), 308 U. S.
147, 161 (1939) (-In every case, therefore, where legisla-
tive abridgement of [First Amendment] rights is asserted,
the courts should be astute to examine the effect of the
challenged legislation-).
The cited cases identify a progression in our First
Amendment jurisprudence which results from a more
fundamental principle. As governments try new ways to
subvert essential freedoms, legal and constitutional
systems respond by making more explicit the nature and
the extent of the liberty in question. First in Near, and
later in Bantam Books and Vance, we were faced with
official action which did not fall within the traditional
meaning of the term prior restraint, yet posed many of
the same censorship dangers. Our response was to hold
that the doctrine not only includes licensing schemes
requiring speech to be submitted to a censor for review
prior to dissemination, but also encompasses injunctive
systems which threaten or bar future speech based on
some past infraction.
Although we consider today a new method of govern-
ment control with unmistakable dangers of official censor-
ship, the majority concludes that First Amendment
freedoms are not endangered because forfeiture follows a
lawful conviction for obscenity offenses. But this explana-
tion does not suffice. The rights of free speech and press
in their broad and legitimate sphere cannot be defeated
by the simple expedient of punishing after in lieu of
censoring before. See Smith v. Daily Mail Publishing Co.,
supra, at 101-102; Thornhill v. Alabama, 310 U. S. 88,
101-102 (1940). This is so because in some instances the
operation and effect of a particular enforcement scheme,
though not in the form of a traditional prior restraint,
may be to raise the same concerns which inform all of our
prior restraint cases: the evils of state censorship and the
unacceptable chilling of protected speech.
The operation and effect of RICO's forfeiture remedies
is different from a heavy fine or a severe jail sentence
because RICO's forfeiture provisions are different in
purpose and kind from ordinary criminal sanctions. See
supra, at 3-6. The government's stated purpose under
RICO, to destroy or incapacitate the offending enterprise,
bears a striking resemblance to the motivation for the
state nuisance statute the Court struck down as an
impermissible prior restraint in Near. The purpose of the
state statute in Near was -not punishment, in the ordi-
nary sense, but suppression of the offending newspaper
or periodical.- 283 U. S., at 711. In the context of the
First Amendment, it is quite odd indeed to apply a
measure implemented not only to deter unlawful conduct
by imposing punishment after violations, but to -`incapaci-
tate, and . . . directly to remove the corrupting influence
from the channels of commerce.'- Russello v. United
States, 464 U. S., at 28, quoting 116 Cong. Rec. 18955
(1970) (remarks of sponsor Sen. McClellan). The particu-
lar nature of Ferris Alexander's activities ought not blind
the Court to what is at stake here. Under the principle
the Court adopts, any bookstore or press enterprise could
be forfeited as punishment for even a single obscenity
conviction.
Assuming the constitutionality of the mandatory forfeit-
ure under 1963 when applied to nonspeech-related
conduct, the constitutional analysis must be different
when that remedy is imposed for violations of the federal
obscenity laws. -Our decisions furnish examples of legal
devices and doctrines, in most applications consistent with
the Constitution, which cannot be applied in settings
where they have the collateral effect of inhibiting the
freedom of expression[.]- Smith v. California, 361 U. S.
147, 150-151 (1959). The regulation of obscenity, often
separated from protected expression only by a -dim and
uncertain line,- must be accomplished through -procedures
that will ensure against the curtailment of constitutionally
protected expression.- Bantam Books v. Sullivan, 372
U. S., at 66. Because freedoms of expression are -vulner-
able to gravely damaging yet barely visible encroach-
ments,- ibid., the Government must use measures that are
sensitive to First Amendment concerns in its task of
regulating or punishing speech. Speiser v. Randall, 357
U. S., at 525.
Whatever one might label the RICO forfeiture provisions
at issue in this case, be it effective, innovative, or dracon-
ian, 1963 was not designed for sensitive and exacting
application. What is happening here is simple: Books and
films are condemned and destroyed not for their own
content but for the content of their owner's prior speech.
Our law does not permit the government to burden future
speech for this sort of taint. Section 1963 requires trial
courts to forfeit not only the unlawful items and any
proceeds from their sale, but also the defendant's entire
interest in the enterprise involved in the RICO violations
and any assets affording the defendant a source of influ-
ence over the enterprise. 18 U. S. C. 1963(a)(1)-(3).
A defendant's exposure to this massive penalty is ground-
ed on the commission of just two or more related obscen-
ity offenses committed within a 10-year period. Aptly de-
scribed, RICO's forfeiture provisions -arm prosecutors not
with scalpels to excise obscene portions of an adult
bookstore's inventory but with sickles to mow down the
entire undesired use.- Fort Wayne Books, 489 U. S., at
85 (Stevens, J., concurring in part and dissenting in
part).
What is at work in this case is not the power to punish
an individual for his past transgressions but the authority
to suppress a particular class of disfavored speech. The
forfeiture provisions accomplish this in a direct way by
seizing speech presumed to be protected along with the
instruments of its dissemination, and in an indirect way
by threatening all who engage in the business of distribut-
ing adult or sexually explicit materials with the same dis-
abling measures. Cf. Pittsburgh Press Co. v. Pittsburgh
Comm'n on Human Relations, 413 U. S. 376, 390 (1973)
(the special vice of the prior restraint is suppression of
speech, either directly or by inducing caution in the
speaker, prior to a determination that the targeted speech
is unprotected by the First Amendment).
In a society committed to freedom of thought, inquiry,
and discussion without interference or guidance from the
state, public confidence in the institutions devoted to the
dissemination of written matter and films is essential.
That confidence erodes if it is perceived that speakers and
the press are vulnerable for all of their expression based
on some errant expression in the past. Independence of
speech and press can be just as compromised by the
threat of official intervention as by the fact of it. See
Bantam Books, Inc. v. Sullivan, supra, at 70. Though
perhaps not in the form of a classic prior restraint, the
application of the forfeiture statute here bears its censor-
ial cast.
Arcara recognized, as the Court today does not, the vital
difference between a punishment imposed for a speech
offense and a punishment imposed for some other crime.
Where the government seeks forfeiture of a bookstore
because of its owner's drug offenses, there is little reason
to surmise, absent evidence of selective prosecution, that
abolishing the bookstore is related to the government's
disfavor of the publication outlet or its activities. Where,
however, RICO forfeiture stems from a previous speech
offense, the punishment serves not only the government's
interest in purging organized-crime taint, but also its
interest in deterring the activities of the speech-related
business itself. The threat of a censorial motive and of
on going speech supervision by the state justifies the
imposition of First Amendment protection. Free speech
principles, well established by our cases, require in this
case that the forfeiture of the inventory and of the speech
distribution facilities be held invalid.
The distinct concern raised by 1963 forfeiture penalties
is not a proportionality concern; all punishments are
subject to analysis for proportionality and this concern
should be addressed under the Eighth Amendment. See
Austin v. United States, ___ U. S. ___(1993). Here, the
question is whether, when imposed as punishment for
violation of the federal obscenity laws, the operation of
RICO's forfeiture provisions is an exercise of government
censorship and control over protected speech as condemned
in our prior restraint cases. In my view the effect is just
that. For this reason I would invalidate those portions
of the judgment which mandated the forfeiture of petition-
er's business enterprise and inventory, as well as all
property affording him a source of influence over that
enterprise.
II
Quite apart from the direct bearing that our prior re-
straint cases have on the entire forfeiture that was
ordered in this case, the destruction of books and films
that were not obscene and not adjudged to be so is a
remedy with no parallel in our cases. The majority says
that our cases -establish quite clearly that the First
Amendment does not prohibit . . . forfeiture of expressive
materials as punishment for criminal conduct.- See ante,
at 9-10. But the single case cited in support of this stark
new threat to all speech enterprises is Arcara v Cloud
Books. Arcara, as discussed above, supra at 6, is quite
inapposite. There we found unconvincing the argument
that protected bookselling activities were burdened by the
closure, saying that the owners -remain free to sell [and
the public remains free to acquire] the same materials at
another location.- 478 U. S., at 705. Alexander and the
public do not have those choices here for a simple reason:
The Government has destroyed the inventory. Further,
the sanction in Arcara did not involve a complete confisca-
tion or destruction of protected expression as did the
forfeiture in this case. Here the inventory forfeited
consisted of hundreds of original titles and thousands of
copies, all of which are presumed to be protected speech.
In fact, some of the materials seized were the very ones
the jury here determined not to be obscene. Even so, all
of the inventory was seized and destroyed.
Even when interim pretrial seizures are used, we have
been careful to say that First Amendment materials
cannot be taken out of circulation until they have been
determined to be unlawful. -[W]hile the general rule
under the Fourth Amendment is that any and all contra-
band, instrumentalities, and evidence of crimes may be
seized on probable cause . . . , it is otherwise when
materials presumptively protected by the First Amend-
ment are involved.- Fort Wayne Books, supra, at 63. See
id., at 65-66; Lo-Ji Sales, Inc. v. New York, 442 U. S.
319, 326, n. 5 (1979) (the First Amendment imposes
special constraints on searches for and seizures of pre-
sumptively protected materials).
In Marcus v. Search Warrant, 367 U. S. 717, 731-733
(1961), we invalidated a mass pretrial seizure of allegedly
obscene publications achieved through a warrant that was
vague and unspecific. The constitutional defect there was
that the seizure was imposed without safeguards neces-
sary to assure nonobscene material the constitutional
protection to which it is entitled. In similar fashion we
invalidated in A Quantity of Copies of Books v. Kansas,
378 U. S., at 211-213, a state procedure authorizing
seizure of books alleged to be obscene prior to hearing,
even though the system involved judicial examination of
some of the seized titles. While the force behind the
special protection accorded searches for and seizures of
First Amendment materials is the risk of prior restraint,
see Maryland v. Macon, 472 U. S. 463, 470 (1985), in sub-
stance the rule prevents seizure and destruction of expres-
sive materials in circumstances such as are presented in
this case without an adjudication of their unlawful charac-
ter.
It follows from the search cases in which the First
Amendment required exacting protection, that one title
does not become seizable or tainted because of its
proximity on the shelf to another. And if that is the rule
for interim seizures, it follows with even greater force that
protected materials cannot be destroyed altogether for
some alleged taint from an owner who committed a speech
violation. In attempting to distinguish the holdings of
Marcus and A Quantity of Books, the Court describes the
constitutional infirmity in those cases as follows: -the
Government had seized or otherwise restrained materials
suspected of being obscene without a prior judicial deter-
mination that they were in fact so.- Ante, at 6. But the
same constitutional defect is present in the case before us
today and the Court fails to explain why it is not fatal to
the forfeiture punishment here under review. Thus, while
in the past we invalidated seizures which resulted in a
temporary removal of presumptively protected materials
from circulation, today the Court approves of government
measures having the same permanent effect. In my view,
the forfeiture of expressive material here that had not
been adjudged to be obscene, or otherwise without the
protection of the First Amendment, was unconstitutional.
* * * *
Given the Court's principal holding, I can interpose no
objection to remanding the case for further consideration
under the Eighth Amendment. But it is unnecessary to
reach the Eighth Amendment question. The Court's
failure to reverse this flagrant violation of the right of
free speech and expression is a deplorable abandonment
of fundamental First Amendment principles. I dissent
from the judgment and from the opinion of the Court.
===================================================
SUPREME COURT OF THE UNITED STATES
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No. 91-1526
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FERRIS J. ALEXANDER, Sr., PETITIONER v.
UNITED STATES
on writ of certiorari to the united states court
of appeals for the eighth circuit
[June 28, 1993]
Justice Souter, concurring in the judgment in part and
dissenting in part.
I agree with the Court that petitioner has not demon-
strated that the forfeiture at issue here qualifies as a
prior restraint as we have traditionally understood that
term. I also agree with the Court that the case should
be remanded for a determination whether the forfeiture
violated the Excessive Fines Clause of the Eighth Amend-
ment. Nonetheless, I agree with Justice Kennedy that
the First Amendment forbids the forfeiture of petitioner's
expressive material in the absence of an adjudication that
it is obscene or otherwise of unprotected character, and
therefore I join Part II of his dissenting opinion.