509 U.S. 444 (1993)
Ferris J. Alexander, Sr., had been in the adult entertainment business for more than thirty years.1 He sold pornographic magazines and sexual paraphernalia, showed sexually explicit movies, and sold and rented videotapes of a similar nature.2 He received shipments of these materials at a warehouse in Minneapolis, Minnesota, where they were wrapped in plastic, priced, and boxed.3 He then sold his products through some thirteen retail stores in several different Minnesota cities, generating millions of dollars in annual revenues.4
In 1989, federal authorities filed a forty-one count indictment against Alexander and others.5 The indictment alleged operation of a racketeering enterprise in violation of RICO.6 It charged thirty-four obscenity counts and three RICO counts, with the racketeering counts being predicated on the obscenity charges.7 The indictment also charged numerous counts of tax evasion and related offenses.8
Following a four-month jury trial in the United States District Court for the District of Minnesota, Alexander was convicted of seventeen substantive obscenity offenses.9 These included twelve counts of transporting obscene material in interstate commerce and five counts of engaging in the business of selling obscene material.10 He was also convicted of three RICO offenses predicated on the obscenity convictions.11 The jury determined that four magazines and three videotapes were obscene under the Miller standards.12
Alexander was sentenced to a total of six years in prison and fined one hundred thousand dollars.13 In addition, the District Court reconvened the same jury and conducted a forfeiture proceeding pursuant to 18 U.S.C. § 1963.14 The Government sought forfeiture of the businesses and real estate representing Alexander's interest in the racketeering enterprise, property affording him influence over that enterprise, and assets and proceeds obtained from his racketeering offenses.15 The jury found that Alexander had an interest in ten pieces of commercial real estate and thirty-one current or former businesses.16 The District Court ordered him to forfeit his wholesale and retail businesses, all the assets of those businesses including more than thirteen thousand items of inventory, and almost nine million dollars in moneys acquired through racketeering activity.17
The Court of Appeals for the Eighth Circuit affirmed Alexander's convictions and the forfeiture order.18 The Supreme Court granted certiorari to consider whether the forfeiture order violated the First or Eighth Amendments.19
Whether the RICO forfeiture of assets from a business convicted of obscenity and racketeering offenses constitutes an impermissible prior restraint on speech under the First Amendment?20
The term prior restraint describes administrative and judicial orders forbidding communications when issued in advance of the time that such communications are to occur.21 Temporary restraining orders and permanent injunctions are classic examples of prior restraints.22 The RICO forfeiture order does not forbid petitioner to engage in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities.23 It only deprives him of specific assets that were found to be related to his previous racketeering violations.24
No. The forfeiture order was imposed as punishment for past criminal conduct, not as a means of preventing future speech.25 Alexander was convicted after a full criminal trial of seventeen obscenity offenses and three RICO offenses predicated on those convictions.26 The jury found that he had an interest in ten pieces of commercial real estate and thirty-one businesses used to conduct the racketeering enterprise.27 The District Court ordered forfeiture of the businesses and almost nine million dollars in assets derived from the racketeering activity.28
Unlike the injunctions in Near v. Minnesota, the forfeiture does not enjoin future publication but only forfeits assets connected to past crimes.29
The forfeiture did not constitute an impermissible prior restraint under the First Amendment.30
Related opinions on this issue
Joined by Blackmun And Stevens, Jj.
Justice Souter agreed with the Court that the forfeiture in this case does not constitute a prior restraint under the First Amendment.31 The order here was imposed only after a jury had determined that petitioner had engaged in a pattern of racketeering activity that included multiple obscenity violations.32 The forfeiture reached only assets connected to that criminal activity.33
Souter also agreed with the Court that the case should be remanded for a determination whether the forfeiture violated the Excessive Fines Clause.34 Nonetheless, Souter agreed 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.35
Joined by Blackmun And Stevens, Jj.
Justice Kennedy dissented from the majority's First Amendment holding.36 He argued that the Court embraced a rule permitting 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.37 Kennedy identified the fundamental defect in the majority's reasoning as its failure to recognize that the forfeiture here cannot be equated with traditional punishments such as fines and jail terms.38
He stressed that RICO forfeiture penalties differ in purpose and kind from ordinary criminal sanctions and pose distinct threats to protected speech.39
Whether the RICO forfeiture order violates the Eighth Amendment's prohibition against excessive fines?40
The Excessive Fines Clause applies to in personam criminal forfeitures under RICO.41 The per se rule from Austin that full relief is available under the Excessive Fines Clause for any disproportionality in a forfeiture imposed pursuant to 18 U.S.C. § 1963 is applicable.42 However, the question whether the forfeiture was excessive is not properly before this Court since petitioner did not raise the excessiveness issue in the lower courts.43
No. The per se rule from Austin applies but the excessiveness issue is not reached because Alexander did not raise his Eighth Amendment claim in the District Court or the Court of Appeals.44 The Court of Appeals affirmed without considering whether the forfeiture was grossly disproportionate to the gravity of the offenses.45
The excessiveness issue is remanded for further proceedings.46
Related opinions on this issue
Joined by Blackmun And Stevens, Jj.
Justice Souter parted company with the Court on the Eighth Amendment issue.47 In his view, the forfeiture of petitioner's entire business and almost nine million dollars in assets is grossly disproportionate to the gravity of the offenses for which he was convicted.48 The predicate offenses were seventeen counts of selling obscene materials.49
While these are serious offenses, they do not justify the wholesale destruction of an entire business enterprise.50 Souter would have reversed the judgment on the Eighth Amendment issue and remanded for further proceedings.51
Joined by Blackmun And Stevens, Jj.
Justice Kennedy stated that given the Court's principal holding on the First Amendment, he could interpose no objection to remanding the case for further consideration under the Eighth Amendment.52 He noted that it is unnecessary to reach the Eighth Amendment question.53 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.54
Kennedy would have invalidated the forfeiture on First Amendment grounds instead.55