Alexander v. United States
Decided on June 28, 1993; 509 US 544


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed:  1st Amendment (obscenity), 8th Amendment

B. Legal Question Presented:

1. Does property forfeiture under the Racketeer Influenced and Corrupt Organizations (RICO) Act as punishment for the distribution of obscene materials constitute 'prior restraint' on speech in violation of the First Amendment?

2. Does the forfeiture of a business as punishment for the sale of obscene media constitute an 'excessive fine'?

II. CASE SUMMARY:

A. Background:

Businesses owner Ferris Alexander sold sexually explicit materials and the Federal District Court of Minnesota convicted him of violating federal obscenity laws and the Racketeer Influenced and Corrupt Organizations Act (RICO). The obscenity convictions were based on items sold at several stores and were the predicates for RICO convictions. A prison term and a fine were imposed. The business owner was ordered to forfeit his businesses and the profits acquired through racketeering activity. The petitioner appealed his case to the Eighth Circuit Court arguing that RICO's forfeiture provisions constitute a prior restraint on speech and are overbroad. The Eighth Circuit Court rejected the argument and held that the forfeiture did not violate the First Amendment.

The Eighth Circuit Court did not consider whether the forfeiture was disproportionate or "excessive." Instead, the court stated that proportionality review is not required of any sentence less than life imprisonment without the possibility of parole.
 The United States Supreme Court granted certiorari to the Eight Circuit Court of Appeals.
B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
John H. Weston Solicitor General Kenneth W. Starr
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
American Booksellers Foundation for Free Expression; American Civil LibertiesUnion; American Library Association; Feminists for Free Expression; and Video Software Dealers Association Christian Legal Defense; National Family Legal Foundation; Morality in Media, Inc.; and the Religious Alliance Against Pornography
 IV. THE SUPREME COURT'S DECISION:

“The term 'prior restraint' describes orders forbidding certain communications that are issued before the communications occur... 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... 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… His definition of prior restraint also would undermine the time honored distinction between barring future speech and penalizing past speech...

Since the RICO [Racketeer Influenced and Corrupt Organizations Act] statute does not criminalize constitutionally protected speech… the threat of forfeiture has no more of a 'chilling' effect on free expression than threats of a prison term or large fine… While the conduct drawing the legal remedy here may have been expressive, 'obscenity' can be regulated or actually proscribed consistent with the Amendment...

The Excessive Fines Clause limits the Government's power to extract payments as punishment for an offense… [The] 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."

Held: The judgment on First Amendment affirmed; forfeiture provisions did not violate the First Amendment.

Remanded: The judgment on Eight Amendment vacated.

Justice Vote: 5 Pro vs. 4 Con

  • Rehnquist, W. Con (Wrote majority opinion)
  • White, B. Con (Joined majority opinion)
  • O'Connor, S. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)
  • Thomas, C. Con (Joined majority opinion)
  • Kennedy, A. Pro (Wrote dissenting opinion)
  • Blackmun, H. Pro (Joined Kennedy's dissent)
  • Stevens, J. Pro (Joined Kennedy's dissent)
  • Souter, D. Pro (Wrote concurring opinion in part and dissenting opinion in part, joined minority opinion)
 
V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus urging reversal of the Court of Appeals’ judgment on First Amendment; the Supreme Court affirmed in a 5 - 4 vote, giving the ACLU an apparent loss.