# Petitioners Brief — Alexander v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0257%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1993 - **Citation:** 509 U.S. 544 ## Text No. 91-1526 —~ a In The Supreme Court of the United States October Term, 1992 6 FERRIS J. ALEXANDER, SR., Petitioner, Vs. UNITED STATES OF AMERICA, Respondent. S On Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit 2 ¢ BRIEF OF PETITIONER . ¢ JoHN H. WesTon* G. RaNnpDatt GarRou CatHuy E. Crosson Ciypve F. Dewmnrt Weston, SaRNo, GARROU & Dewitt 433 N. Camden Drive, Suite 900 Beverly Hil's, California 90210 (310) 550-7450 Counsel for Petitioner “Counsel of Record COCKLE LAW BRIEF PRINTING CO. 225-6964 OR CALL COLLBCT (402) %42- 1) 2) QUESTIONS PRESENTED Does RICO forfeiture constitute a prior restraint of the kind condemned in Near vy. Minnesota, of otherwise violate the First Amendment, when applied to close a $25 mil- lion Chain of bookstores, video stores, and the- aters to confiscate all their property including four years’ proceeds, and to destroy their inventories, solely on the basis of seven Obscene videotapes and magazines? Does the forfeiture of a $25 million media business, along with a six-year prison term and fines in excess of $200,000, all as punishment for seven obscene videotapes and magazines. violate the kighth Amendment? J ii LIST OF PARTIES Petitioner FERRIS J. ALEXANDER, SR. and Respon- dent UNITED STATES OF AMERICA are the only interested partics remaining in this action. Petitioner previously notified this Court of his belief that his co-defendants in the criminal trial below (Delores Alexander, Jeffrey Alexander, and Wanda Magnuson), did not pursue this matter on appeal and no longer have an interest in the outcome of this proceeding. Similarly, a civil case entitled Alexander v. Thornburgh, was consolidated with this case in the Court of Appeals. However, the petition for certiorari did not seek review of the civil case and it is petitioner’s understanding that no parties thereto seck this Court's review of that case. TABLE OF CONTENTS Page TABLE OF CONTENTS | iii TABLE OF AUTHORITIES |. v OPINIONS BELOW | JURISDICTION 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. ... 2 STATEMENT OF THE CASE 2 SUMMARY OF ARGUMENT | 7 ARGUMENT...... 10 1. THE FORFEITURE AND CLOSURE OF AN ENTIRE MEDIA BUSINESS, ALONG WITH THE DESTRUCTION OF ITS INVENTORY, SOLELY FOR THE SALF OF SEVEN OBSCENE ITEMS. VIOLATES THE FIRST AMENDMENT BOTH AS AN UNCONSTITUTIONAL PRIOR RESTRAINT AND BY ITS OVERBREADTH............. 10 A. The Court Of Appeals Erred In Refusing To Analyze These Sanctions Under The Height- ened Levels Of Scrutiny Applicable In First CC EEE 13 B. The Forfeiture And Closure of an Entire Media Business, Exclusively For Obscenity Violations, Is A Classic Prior Restraint Of The Sort This Court Has Condemned As A Per Se Violation of The First Amendment Ever Since Near v. Minnesota. .__.. 17 iv TABLE OF CONTENTS — Continued Page 1. Of the various types of prior restraint con- demned by this Court, the Near type is the most unequivocal First Amendment viola- SE ini pnee te benes Ses seedusbulanunce 17 a) Because RICO torteiture directly and indis- criminately suppresses future presumptively protected speech in retaliation for prior unprotected speech, this Court's decisions uniformly require its invalidation as an unconstitutional prior restraint... ... ||. 20 +. In scores of cases invalidating padlock orders, license revocation, and seizure of the equipment and other property of the- atres and bookstores as punishment for obscenity violations, the lower federal and State courts have universally concluded that such remedies operate as unconstitutional Ree ee 31 C. The RICO Act's Forfeiture Remedy Also Vio- lates the First Amendment Because It Is Over- broad In Its Censorial Effect Upon Protected I A Ser ar ec Se 35 ll. THE TOTAL FORFEITURE OF A $25 MILLION BUSINESS, IN ADDITION TO A SIX-YEAR PRISON TERM AND $200,000 IN FINES, VIOLATES THE TABLE OF AUTHORITIES VPage briomkat Cases Adult Video Association v Barr, 960 2d 781 (9th Cir 1992) 16, 3, 40, 47 Airport Commissioners of Los Angeles vo Jews for Jesus, 482 U.S. 569 (1987) Ww Alexander v. Thornburgh, 94% 2d 625 (th Cir 1991) 1, 6, 14 Arcara v. Cloud Books, Inc. 47% US 697 (1986) 8. 11, 16, 25 Arkansas Writers Project v Raglund, 481 US. 22) (1987) 24, 25 Avon 42nd Street Corp. v. Myerson, %52 ¥ Supp. 994 (S.D.N_-Y. 1972) 32 Bayside Enterprises, Inc. v. Carson, 470 & Supp. 1140 (M.D.Fla. 1979). 32 Bongiovanni v. Hogan, *09 F Supp. 1364 (SDNY 1970)... .. 14 Browning-Ferris Industries of Vermont ». Keico Dis- posal, Inc., 492 U.S. 257 (1989) 42. 43 Burson v. Freeman, __-:;oUS. _, 112 SCt 1846 See 27 Chulchia v. City of Indianapolis, 477 F.Supp. 128 (S.D.Ind. 1979), aff'd, 633 F.2d 27 (7th Cir. 1980) 32 City of Paducah v. Investment Entertainment. 791 F.2d 463 (6th Cir 1986) 32 Cohen v. City of Daleville. Alabama, 695 F Supp 1168 (M_D. Ala 1988) 32 vi TABLE OF AUTHORITIES — Continued Page Cornflower Entertainment, Inc. v. Salt Lake City Corp., 485 F.Supp. 777 (D.Utah 1980).............. 32 Council for Periodical Distributors Association vy. Evans, 642 F.Supp. 552 (M.D.Ala. 1986), aff'd, SSe F.AW CSRS CEG Cie, OOBPD.... ccccccccccccccccce 12 Dexter v. Butler, 587 F.2d 176 (Sth Cir. en banc 1978).... 34 PHE, Inc. v. U.S. Dept. of Justice, 743 F.Supp. 15 See MEA dncdedccketccetcsucadeuubicocced . 12 Entertainment Concepts Inc. Ill v. Maciejewski, 631 ee DO MM cccccccccecéesescceendecksa 32 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .... 18 Fernandes v. Limmer, 663 F.2d 619 (Sth Cir. a 32 Forsyth County v. Nationalist Movement, ___ U.S. > % | Ree aes Smee 18 Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) $teGseRNEndat ads eeeadshetbedbebacdenees 8, 14, 15, 27 Freedberg v. U.S. Dept. of Justice, 703 F.Supp. 107 EL ESE Ee 2.1 Bet ii 9 ee 12 Freedman v. Maryland, 380 U.S. 734 (1965)........... 18 G.1. Distributors, Inc. v. Murphy, 336 F.Supp. 1036 ES Rn le 34 Gayety Theaters, Inc. v. City of Miami, 719 F.2d 1550 as cdesdesdaddduibecduadéssceececte: 32 Genusa v. City of Peoria, 475 F.Supp. 1199 (C_D.I. 1979), aff'd., 619 F.2d 1203 (7th Cir. 1980)......... 32 vii TABLE OF AUTHORITIES - Continued Page Harmelin v. Michigan, ___ U.S. __, 111 S.Ct. 2680 Pccacadnecededscsvedssaeecses 4i, 42, 43, 45, 46 Heller v. New York, 413 U.S. 483 (1973).............. 27 Huffman v. Pursue, Lid., 420 U.S. 592 (1975) ......... 32 Intern. Soc. for Krishna Consciousness v. Eaves, 601 ee ccc ccideesiesekadeees 32 Interstate Circuit, Inc. v. City of Dallas, 247 F.Supp. cc cckecadecneceesondebesseessus 34 Jenkins v. Georgia, 418 U.S. 153 (1974) .......... 12, 32 Jodbor Cinema, Lid. v. Sedita, 309 F.Supp. 868 i cia. ecaxcheanandetiesseneaseonsuss 34 Kingsley Books v. Brown, 354 U.S. 436 (1957)..... passim L.M.E., Inc. v. Cit¥ of Hollywood, 605 F.Supp. 185 DE Pi icdutd duicedeesesuencedgetbeuaseienns 34 Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) ....27 Maguin v. Miller, 433 F.Supp. 223 (D.Kan. 1977)...... 34 Marcus v. Search Warrant, 367 U.S. 717 (1961) enbsatabnnkbbdundsedéddeddaukesendqokerasi 17, 27, 28 Marks v. City of Newport Ky., 344 F.Supp. 675 Tt Pi Grdceecteesseedt bnaueenkdeedesseese 32 Members of City Council of the City of Los Angeles v. Taxpayers For Vincent, 466 U.S. 789 (1984)..... 37, 38 Minneapolis Star & Tribune Co., v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983)....... 24, 25 NAACP v. Alabama, 377 U.S. 288 (1964).......... 10, 38 vill TABLE OF AUTHORITIES — Continued Page Natco Theatres Inc., v. Ratner, 463 F.Supp. 1124 SE ED haidencuwekuhbia duane toteiee 8 on 32 Near v. Minnesota, 283 U.S. 697 (1931)........... passim New York Times Co. v. Sullivan, 376 U.S. 254 (1964)....14 New York Times v. Untied States, 40% US 713 (1971)... 18, 20 Nihiser v. Sendak, 405 & Supp. 482 (N.D.Ind. 1974), vacated and remanded on other grounds, 423 US 976 (1975), order re-entered August 16, 1976 (unpub.), aff'd. 431 U.S. 961 (1977).............._.. 32 Oregon Bookmark Corp. v. Schrunk, 421 F.Supp. 639 oS RRA Spee PEPE CTS ree 32 Organization For A Better Austin v. Keefe, 402 US. AR earn Sige lg 19, 22, 23, 26, 29 Osborne v. Ohio, 495 U.S. 103 (1990) ........... 45 Paris Adult Theatre I vy. Slaton, 41% US. 49 (1973)....4§ Playboy Enterprises, Inc. v. Meese, 639 Fk Supp. S81 I 6 akc candy chediemiie adateduiiidd tess. 12 Pollitt v. Connick, 596 F.Supp. 261 (E.D1La. 1984)... .. 31 Quantity of Copies of Books v. State of Kansas, 378 Soe RI MAE ACen 27, 28 R.A.V. v. City of St. Paul, = US. __—, 112 S.Ct. 2538 a Othe oak a oe ae! 18, 23, 24, 38 Robinson v. California, 370 U.S. 660 (1962)....41, 42. 44 Russello v. United States, 464 U.S. 16 (1983).......... 26 San Juan Liquors v. Consol. City of Jacksonville, 480 FU CRO GETTER. DOPOD onc ccccccccecccccccccens 32 ix TABLE OF AUTHORITIES — Continued Page Schad v. Borough of Mount Ephraim, 452 US. 6) Sen Weductse dedatabebebeuddddedessike dcdcacns 15 Secretary of State of Maryland vy. Joseph H. Munson Co., Inc., 467 U.S. 947 (198%4)...... 6... 37, 3% Simon & Schuster v. New York Crime Victims Board, U.S. __, 112 S.Ct. SOL (1991).... 15, 24, 27 Smith v. California, 361 U.S. 147 (1959)... 24 Solem v. Helm, 46% U.S. 277 a passim Speight v. Slaton, 415 U.S. 333 a ia Nae 32 Stanley v. Georgia, 394 U.S. $57 (1969)............__ 45 Star Distributors, Lid. v. Hogan, 447 k Supp. 1362 IER 0S a ee a ee: 34 U.S. v. PHE, Inc., 965 &.2d $48 (10th Cir 12 United States v. Alexander, 736 & Supp. 96% (D.Minn. Saad kdcmaehedhessuhbaokewas dd deaebécns. 1, 3, 4 PREETI, ee ae Na i ga 4% United States v. Busher, 817 F.2d 1409 (9th Cir. 1987)....47 United States v. California Publishers Liquidating Corporation, 778 F.Supp. 1377 (N.D.Tex. 1991) ‘eendudhedespelseéadsocnMecssbece 6¢ thus 34, 37, 39, 40 United States v. Harris, 903 F.2d 770 (10th Cir. 1990)... 47 United States v. Polak, 312 FSupp. 112 (E.D.Pa. SPUaee bbls wen db acngibacdd ob 58 Gs cuccadiodckccecs 32 United States v. Pryba, 900 F.2d 748 (4th Cir. 1989) peheSdeuhedds bed ebnbaeteebocehbonsewseacahas 6, 13, 48 TABLE OF AUTHORITIES - Continued - Page United States v. Robinson, 721 F.Supp. 1541 (D.R.I. WOMEN ua «habeas wie ond vacexee Ccknae ess aa 47, 48 United States v. Vriner, 921 F.2d 710 (7th Cir. 1991)... . 47 Universal Amusement Co.. Inc. v. Vance, 404 F.Supp. Pe WN, IS Si edewcvbeddanees dicecdso oa... 34 Universal Amusement Co., Inc. v. Vance, 587 F.2d 159 (OUD COe, OR Dame IDTE) ww on occ ccccccacccevcccecee, 31 Universal Amusement Co., Inc. v. Vance, 445 U.S. 308 SU eb 2 o 8 oi 5 6b 6 dn dses cee us cdabciccess: 34 Yuclan Enterprises Inc. y. Arre, 488 F.Supp. 820 NN I 5.8 Wn ob a ak a he wc Caweccc ue, 32 State Cases Alexander v. City of St. Paul, 303 Minn. 201, 227 ee Me ee) 32 City of Delevan v. Thomas, 31 Ill. App.3d 630, 334 I 32 City of Minot v. Central Ave. News, Inc., 308 N.W.2d inal tec eat en RRR rd SP Pc Oak Reet tal 3] City of Seattle v. Biitner, 81 Wash.2d 747, 505 P2d PE SPUR fore OES a eee ee eee 32 Commonwealth ex rel. Davis v. Van Emberg, 347 A.2d PEE Seo ae eek Cen 31 Europo Books, Inc. v. Pomerleau, 395 A.2d 1195 ee SE Vaan essa hues Gaeta eee 34 General Corp. v. Sweeton, 320 So.2d 668 (Ala. 1975) .... 31 Giarrusso v. D'Iberville Gallery, 295 So.2d 891 SE PI 650 VenGongsie esto uac ee. i 31 xi TABLE OF AUTHORITIES —- Continued Page Gulf States Theaters of Louisiana v. Richardson, 287 I Ee Ove ca chupestaaeveoesneeness 31 Hamar Theatres Inc. v. City of Newark, 150 N.J.Super. 14, 374 A.2d S02 (IDTT).... 2... cc ccceees 32 Kansas v. A Motion Picture Entitled “The Bet”, 219 ee og & Ft. | eee 31, 33 Kuhns v. Santa Cruz Co. Bd. of Sup'rs., 128 Cal.App.3d 369, 181 Cal.Rptr. 1 (1982)............. 32 Mitchem vy. State ex rel. Schaub, 250 So.2d 883 (Fla. og SE a renee ey Mea yr eeelnear pear yctr en rae Perr Pere er enn 32 New Riveria Arts Theatre v. Davis, 219 Tenn. 652, ee ee OD os oo <5 co on bas ebcuecbeocdeen’ 31 Parish of Jefferson v. Bayou Landing Ltd., Inc., 350 ee ie Ree decreed bh ecadauswn' 32 People ex rel. Busch v. Projection Room Theater, 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600 (1976) .... 31 People » J.W. Productions, 413 N.Y.S.2d 552 i So Grates esos bk caceceeh sew kedeiees 32 Perrine v. Municipal Court, 5 Cal.3d 656, 97 Cal.mee. Fan, 468 P.28 G46 CISTI)... cc ccccccevess 32 Porno, Inc. v. Municipal Court, 33 Cal.App.3d 122, ee ee eS a nbs od ide SeGnneedess cesses 34 Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974) ..31, 32 Society to Oppose Pornography, Inc. v. Thevis, 255 Ye I, I ok coe cc eden secawauvevnwes 3] State ex rel. Blee v. Mohney Enterprises, 289 N.E.2d i Mn doers 6 ikea shack Keene ween aeeeen 31 xii TABLE OF AUTHORITIES — Continued State ex rel. Ewing v. “Without a Stitch ", 307 N.E.2d seheciel spon cag tsconieian, MEET TET Ee TAL aI ae 32 State ex rel. Field v. Hess, $40 P2d 1 165 (Okla. 1975)... . 31 State v. Bauer, 159 Ariz. 443, 768 P.2d 175 (Ariz. App. WP ns + 68.0 685 Wah buauccdeductdauer leslie ok: 32 State vy. Feld, 155 Ariz. 88, 745 P.2d 146 (Ariz. App. State v. Henry, 302 Or. 510, 732 P2d 9 (Or. 1987). .... 46 State vy. Jenkins, 230 Ga. 726, 199 S.E.2d 183 (1973)... . 32 State vy. Kam, 748 P.2d 372 (Hawaii 1988)............. 46 DockeTED Cases State v. Smith, Ariz. Ct.App. Case No. 1 CA-CR MPU eaih teenies ee woe Lee 46 CONSTITUTIONAL PROVISIONS United States Constitution: PURI, WOE. D, COUMID Fanconi coco ceecncen 44 First Amendmem.............................. passim Efgnth Amendment............................. passim Arizona Constitution................................. 46 FEDERAL STATUTES United States Code: I i 34 ed cedscxesice nd ieraltea dite CN 4 xiii TABLE OF AUTHORITIES —- Continued Page I UN rg cg ain ea passim SO tie gs a ge ek a De 4 Sun a cc, i a eB a ot 4, 30, 37 es: Oe EE ode Gao dks Seceeaceeues 4, 21, 37 Pe Oe Es 5 4c vntcneuedébedenecees Se rae Ct Ng ne er ee ee 6 Ba AL ad Ree ee Bind See 43 a I ca ca aut cas Pilws os uso eee nie 2 Statutes At Large: F Se ee ree 43 MISCELLANEOUS lan A. J. Pitz, Letting the Punishment Fit the Crime: Proportional Forfeiture Under Criminal RICO’s Source of Influence Provision, 75 Minn. L. Rev. ae he a ree Ue ae weld oe 46, 47 James R. Maxeinor, Bane of American Forfeiture Law — Banished At Last?, 62 Cornell L. Rev. 768, 787 DE odibhahinkeaanshabeedsssussaveieneaeen 43, 44 Kathleen F. Brickey, RICO Forfeitures As “Excessive Fines” Or “Cruel and Unusual Punishments,” 35 ee es : cuneanueecceseécdcceses 46, 47 Craig W. Palm, RICO Forfeiture and the Eighth Amendment: When Is Everything Too Much?, 53 U. Sa te SO 4 wo aoe coeaehadeasawes 42, 43, 47 XiV TABLE OF AUTHORITIES — Continued Page John L.. Roberts, The Eighth Amendment As Applied To RICO Criminal Forfeiture, 10 W.N. Eng. L. Rev. ie ko. NA ee SER SR RoE SL lle AN, ea 47 Vernon M. Winters, Criminal RICO Forfeitures and the Eight Amendment: “Rough” Justice Is Not Enough, 14 Hast. Const. L.Q. 451 I i at 46, 47 William W. Taylor Ill, The Problem of Propor- tionality in RICO Forfeitures, 65 Notre Dame L.. ec i ee 43, 44, 46, 47 No. 91-1526 e In The Supreme Court of the United States October Term, 1992 — @ FERRIS J. ALEXANDER, SR., Petitioner, VS. UNITED STATES OF AMERICA, Respondent. ¢ On Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit ¢ BRIEF OF PETITIONER ¢ OPINIONS BELOW The opinion of the Court of Appeals is reported as Alexander v. Thornburgh, 943 F.2d 825 (8th Cir. 1991), and is reproduced at page | of the Appendix to the Petition for Writ of Certiorari (hereinafter “C.A.”). The Court of Appeals’ unreported order denying rehearing and rehearing en banc is set forth at C.A. 163. The District Court’s reported opinion deciding the forfeiture issue, United States v. Alexander, 736 F.Supp. 968 (D. Minn. 1990), is reproduced at C.A. 163; its unpublished Judgment Including Sentence Under The Sen- tencing Reform Act is reproduced at C.A. 125. The District Court’s forfeiture order of August 6, 1990 is reproduced at C.A. 134 and its final orders of forfeiture appear in the record as docket entry nos. 273 and 282-291. 2 JURISDICTION This Court granted a writ of certiorari to review the decision of the United States Court of Appeals for the kighth Circuit affirming Petitioner's conviction and sentence of forfeiture. This Court has jurisdiction under 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The First and Kighth Amendments to the United States Con- Sutution are reproduced at C_A. 164. The forfeiture provisions of the federal RICO statute (18 U.S.C. § 1963) are reproduced in their enurety in the Appendix at the end of this brief. STATEMENT OF THE CASE This case starkly presents the issue whether the govern- ment may, Consistent with the First and Eighth Amendments, invoke the forfeiture provisions of the RICO Act, 18 U.S.C. § 1963, to confiscate entire media businesses in retaliation for obscenity offenses. Solely because seven items (four maga- vines and three videotapes) were found obscene at trial, the government used these provisions to dismantle and destroy Petitioner's chain of bookstores and video stores. Even before this Court acted on the certiorari petition, the government sold most of the real property which housed these media businesses, and burned their inventories of books and films. Petitioner Ferris Alexander formerly Owned and operated numerous bookstores, video stores and theaters in Minnesota, primarily in the Minneapolis/St. Paul area. He also distributed books, magazines, and videotapes wholesale. These businesses were largely devoted to selling or renting erotic materials, pre- sumptively protected by the First Amendment and which Petitioner believed to be within local community standards.! ' Peutioner’s businesses were notably successful: the government alleged that their annual revenues were in the millions of dollars. In addition to the local popularity of the erotic materials his businesses 3 In 1989, however, the government charged Petitioner with multiple obscenity and KICO/obscenity violations. The indictment (R.1)? charged 34 obscenity counts based on the alleged obscenity of six magazines and seven videotapes, and three RICO counts predicated exclusively on those obscenity charges. ' Petitioner challenged obscenity-predicated RICO forfei- tures in his pre-trial motions, and Magistrate Janice Sym- chych initially held the forfeiture provisions of 18 USC. § 1963 facially unconstitutional for overbreadth, on grounds that they authorize the wholesale forfeiture of expressive businesses without regard for the censorial consequences thus visited upon protected speech. United States v. Alexander, 736 F.Supp. at 986-987. (C.A. 72-74.) Citing the numerous federal decisions striking down padiocking orders and license revocations as overly broad penalties for obscenity convic- tions, the magistrate also concluded that RICO forfeitures operate as an impermissible prior restraint. 736 F.Supp. at 989-991. (C.A. 78-81.) She therefore recommended that the trial court hold RICO forfeiture facially unconstitutional as a prior restraint. Jd. at 981, 98%, 990. (C.A. 58, 8&1, 119.) The district court, however, held that the RICO forfeiture remedy was neither overbroad nor a prior restraint, on offered for sale and rental, official acquiescence reinforced Petitioner's belief that the materials he disseminated were within the bounds of com- munity standards. He had not been prosecuted since he was acquitted of obscenity charges in the mid-1970's, and local officials had subsequent y announced that they would not prosecute for obscenity unless the materials involved bestiality or children. Nor, prior to the alleged conduct in this case, had there been any federal obscenity prosecutions in the district since his earlier acquittal. 2 “R.” refers hereinafter to district court docket entries. % The indictment also alleged tax offenses, and Petitioner was con- victed of four tax violations. Those convictions are immaterial to the issues before this Court, as they were completely unrelated to the RICO counts and the resulting forfeiture. 4 grounds that the First Amendment imposes no limitation on the penalties the government may exact for obscenity offenses. 736 F.Supp. at 978-980. (C_A. 51-55.) The trial court deemed the First Amendment irrelevant, because “the law . . . teats an obscenity charge the same as any other criminal charge, be it bank robbery, narcotics trafficking, of firearms violations.” Jd. at 980. (CLA. §§.) The court also discerned in the impending wholesale forfeiture of Petitioner's bookstores, theaters, and video Stores “no necessary impact on expressive activity in the future.” /d. (C.A. 54.) In fact, these forfeitures ultimately closed virtually every adult erotica outlet in the Twin Cities area. Following a jury trial, Petitioner was acquitted on 16 obscenity counts and convicted on 18 counts, based on the determination that seven of the thirteen charged items - Slightly more than half — were obscene. Based exclusively upon these seven obscene items Petitioner was also convicted of the three RICO/obscenity counts. (C.A. 125.) For these offenses, the ailing 73-year-old Petitioner was sentenced to concurrent terms requiring his incarceration for six years. The trial court also assessed him well over $200,000 in fines and costs. (C.A. 127-128, 132, 133, 162.) In ordering Petitioner to pay the costs of prosecution, the court dismissed the fact that it was dismantling an entire chain of communicative businesses with: “Defendant created his crim- inal empire and now must pay for its destruction.” (CA. 162.) In addition to these harsh criminal penalties, however, 18 U.S.C. § 1963(a) required the trial court to order a total forfeiture,* extending to Petitioner's entire chain of retail * Title 18 U.S.C. § 1963(a)1)-(2) compel the trial court to order forfeiture of any interest a convicted RICO defendant has acquired or maintained in violation of § 1962, and any interest in, security of, claim against, or property affording a source of influence over any enterprise which has been conducted in violation of § 1962. Together, these sections 5 bookstores and video stores, along with his wholesale media distribution business which warchoused an extensive inven- tory. The forfeiture order of August 6, 1990, basically encom- passed all of the assets associated with Petitioner's ten operating wholesale and retail media businesses, including the real estate that had housed them, their bank accounts, and all the personal property necessary to conduct these busi- nesses. Included in the latter category were film projectors, iclevision monitors, video cassette players, cash registers, Shelves, all office equipment, and three company vehicles (two vans and a trailer) used to transport media materials. Most dramatically in terms of its direct and immediate impact upon expression, the forfeiture order authorized the govern- ment to confiscate these bookstores’ and video stores’ exis- ting inventories of untold thousands of books, magazines, and videotapes. (C.A. 134.)° The court also ordered forfeiture of over $8.9 million in cash assets, under the government's theory that this amount constituted proceeds obtained from “racketeering activity” require the blanket forfeiture of the enterprise and were so applied in this case to completely extirpate Peutioner’s speech businesses. The language of § 1963(a)(3) appears to require forfeiture only of property constituting or derived from proceeds ohained from “racketeering activity,” and if properly construed as limited to the actual proceeds from the sale of the seven obscene items, Petitioner would not challenge the constitutionality of this provision. However, the tial court applred this provision to forfeit a wide range of assets, particularly the $8.9 million alleged as proceeds from the overall conduct of the enterprise for four years. See C.A. at 144-145. As the courts below construed this provision, it too 1s Challenged as unconstitutional. > Technically, the forfeiture order of August 6, 1990 simply ordered the forfeiture of petitioner's interest in all of the assets described above (as well as some other properties not mentioned here). Final orders of fortei- ture were subsequently entered as against the entire world (R.273 and 282-291). These final orders of forfeiture included all the items specifically described above. — 6 from 1985 through 1988, even though all but seven of the hundreds of thousands of items sold over that period were presumptively protected materials. The Eighth Circuit Court of Appeals affirmed Peti- tioner’s Conviction, rejecting his arguments that RICO forfei- ture of an entire expressive business for obscenity offenses violated the First and Eighth Amendments. (C.A. 21-25.) Relying entirely upon the Fourth Circuit's decision in United States v. Pryba, 900 F.2d 748 (4th Cir. 1989), the court concluded First Amendment analysis was simply irrelevant. Alexander v. Thornburgh, 943 F.2d 825. 834-835. (C.A. 21, 23.) The court apparently also adopted the Fourth Circuit's conclusion in Pryba that it need not review this sentence under the Eighth Amendment. /d. at 835-836. (C.A. 25.) After the Eighth Circuit affirmed Petitioner’s conviction, but before that court had even denied rehearing, the govern- ment destroyed all of the presumptively-protected inventories of books, films, and magazines it had seized from Petitioner’s warehouse and nine retail outlets.© Federal marshals in Min- neapolis trucked three tons of magazines, videotapes, and other inventory to a garbage processing plant, where the magazines were burned and the videotapes destroyed by crushing.’ Additionally, despite the pending petition before this Court, the government sold most of Petitioner's real property as quickly as it could dispose of those properties by quitclaim deed. To date the government has sold nine of the ten parcels Of real property; it has also sold virtually all of the busi- nesses’ equipment necessary for the future dissemination of : s The RICO statute expressly prohibits the defendant, as opposed to third parties, from even applying for any type of stay order to preserve the ; an assets pending the conclusion of any appeal. See 18 U.S.C. ” See Minneapolis Star Tribune, October 19, 1991 at 1B. 7 constitutionally-protected materials. Most recently, the gov- ernment sold to the City of Minneapolis a parcel of Peti- tioner’s real property appraised at $145,000, for the price of $1.8 . The RICO Act does not require the government to pro- vide an itemized inventory of the confiscated property. Accordingly, the government has never filed any document in this case itemizing the forfeited property or estimating its value. Because the government also seized Petitioner's busi- ness records, it is impossible to estimate accurately the total value of the property the government has sold or destroyed. However, Petitioner estimates the value of his forfeited busi- nesses at $25,000,000.° SUMMARY OF ARGUMENT When predicated solely on prior speech violations, the forfeiture provisions of the federal RICO statute represent a unique and dangerous threat to the security of First Amend- ment freedoms, not only for the erotic entertainment industry, but for all communications businesses. In this case, pursuant to the mandatory forfeiture provisions of 18 U.S.C. § 1963, the government seized and destroyed all of the countless thousands of magazines, books and video tapes from peti- tioner’s wholesale warehouse and nine separate bookstores and video stores solely because seven of thirteen charged items were found obscene at trial. None of the other thou- sands of destroyed media items were even alleged to be obscene. In addition to the mass destruction of these untold thousands of media materials, the government has also confis- cated and sold almost all the real and personal property necessary for the business prospectively to disseminate con- Stitutionally protected expression. * This transaction involved property at 341 E. Lake St. in Min- neapolis and closed on July 29, 1992, one month after certiorari had been granted. % This is the estimated combined value of the hard assets of the businesses and the businesses’ value as going concerns. 8 The Court of Appeals upheld this mass destruction of a media business upon the erroneous theory that the First Amendment imposes no limitation upon the scope of punish- ment which government may exact once it has obtained two or more Obscenity convictions. Yet, in Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986), this Court, while upholding a closure of a bookstore for prostitution and lewd conduct, nonetheless emphasized that had the triggering violations involved expression (such as, e.g., obscenity), First Amend- ment scrutiny would be required. Similarly, in Fort Wayne Books v. Indiana, 489 U.S. 46, 67 (1989), this Court made Clear that “the state cannot escape the constitutional safe- guards of our prior cases by merely recategorizing a pattern Of obscenity violations as ‘racketeering.’ " The Court invali- dated RICO seizures, concluding that “[iJt is incontestable that these proceedings were begun to put an end to the sale of obscenity ... , and hence we are quite sure that the special rules applicable to removing First Amendment materials from circulation are relevant here... . ” /d. at 66. In light of these Clear statements by this Court, the Court of Appeals’ conclu- sion that First Amendment considerations are irrelevant here is plainly unsupportable. In fact, the government's mass destruction of expressive businesses in this case was “the essence of censorship,” i.e., a prior restraint, just as in Near v. Minnesota, 283 U.S. 697, 713 (1931), where the invalid statute authorized the courts to suppress “the dissemination of future issues of a publication because its past issues had been found offensive.” Unlike a typical criminal punishment, the draconian sanction chal- lenged herein directly suppressed expressive materials and the means to disseminate them. Rather than simply jailing or fining the Petitioner (which occurred in any event), the forfei- lure provisions focused on suppression of his media business. The fundamental error committed by the Court of Appeals was to accept the government’s assertion that, under Near, forfeiture cannot be a prior restraint because it was imposed as “subsequent punishment” in a criminal case. How- ever, Near suggested nothing of the sort. Near stated: “We have no occasion to inquire as to the permissible scope of 9 subsequent punishment” (283 U.S. at 715, emphasis added), Clearly implying that there was some tangible First Amend- ment limit as to how far subsequent punishment may go. Obviously the same First Amendment principles this Court protected in Near would be violated if the very same sanction stricken in Near were authorized by a criminal statute. Accordingly, the criminal-civil distinction is unquestionably an inappropriate formalistic test and the Court of Appeals Clearly erred in adopting it. Rather, this Court's prior restraint cases suggest that the Only appropriate test for distinguishing a prior restraint from a permissible punishment is that a sanction is an unconstitu- tional prior restraint if it is imposed for a prior speech violation and in every case where the statutory sanction is imposed, it will immediately or inevitably suppress speech. Because of this critical distinction, RICO forfeiture operates as an unconstitutional prior restraint rather than a permissible Criminal punishment. Recognition of this distinction is critical if basic First Amendment protections — both for individuals and communi- cations businesses — are to survive. For example, if the chal- lenged forfeiture were upheld, there would be no barrier to expansion of the types of speech which could trigger forfei- ture, to incluge “national security violations,” “disseminating unauthorized or classified information”, or defamation. Surely the First Amendment would not permit forfeiture of a newspaper or broadcast network which committed such a violation. To sustain RICO forfeiture is to eviscerate the most bedrock First Amendment principle: that government may not preclude future, presumptively protected speech in retaliation for prior unprotected speech. In essence, this case represents a fundamental crossroads for liberty of the press in this country. If the forfeiture of a media business for prior speech viola- tions is not unequivocally rejected as an unconstitutional prior restraint, laws empowering government to forfeit speech businesses for prior speech violations will surely proliferate. The First Amendment, as we know it, will simply cease to exist. 10 Alternatively, massive forfeitures as a remedy for unprotected speech are also overbroad because they inevita- bly operate to censor protected speech. In contrast to the typical overbreadth case where a law's prohibition includes protected speech, here the proscribed conduct is all unprotected but the sanction imposed for the violation is impermissibly overbroad, in violation of First Amendment rights. See, e.g., NAACP v. Alabama, 377 U.S. 288, 307-308 (1964). Finally, although Petitioner's First Amendment claims Should dispose of this case, the forfeitures imposed here violate the Eighth Amendment guarantees against “excessive fines” and “cruel and unusual punishment.” The forfeiture of Petitioner's $25-million business, in addition to a six-year prison term and some $200,000 in fines, is grossly dispropor- lionate to the offense of distributing seven items found to be obscene. Moreover, such forfeitures inherently violate the Eighth Amendment because they revive the hated and much- abused “forfeiture of estate” which the framers clearly sought to abolish. ARGUMENT 1. THE FORFEITURE AND CLOSURE OF AN ENTIRE MEDIA BUSINESS, ALONG WITH THE DESTRUC- TION OF ITS INVENTORY, SOLELY FOR THE SALE OF SEVEN OBSCENE ITEMS, VIOLATES THE FIRST AMENDMENT BOTH AS AN UNCON- STITUTIONAL PRIOR RESTRAINT AND BY ITS OVERBREADTH. By deploying RICO forfeiture to destroy a media busi- ness of which it disapproves, the government presents this Court with an unprecedented assault on First Amendment liberties. The government has targeted a communicative busi- ness for destruction, and solely on the basis of seven items determined at trial to be obscene, has invoked the ultimate censorial weapon: RICO’s blanket forfeiture. By means of this forfeiture, the government has closed down an entire chain of bookstores, theaters, and video -stores engaged in erotic speech, to which the government is openly hostile. It has removed from circulation and burned or otherwise destroyed those businesses’ vast inventories of books, maga- zines, and videotapes. It also forfeited and sold all the neutral real and personal property necessary for those businesses to engage in all future expressive activity. The decision below, denying the relevance of the First Amendment in order to sustain this forfeiture, defies the bedrock prohibition against prior restraint this Court announced in Near v. Minnesota, 283 U.S. 697 (1931), and opens the door wide to governmental suppression of officially-disfavored speech. If this Court were to affirm, and to condone this forfeiture and book- burning, it would signal a seismic shift in First Amendment doctrine. For the first time, it would unleash government to employ whatever remedies it chooses to punish unprotected speech, no matter that the effect is to directly and indiscriminately preclude future, protected speech. Petitioner’s challenge invokes the traditional First Amendment axiom that government may not directly and indiscriminately ban future speech because of prior unprotected expression. Accord- ingly, forfeiture of a media business purchased by a drug cartel would be constitutionally permissible,'° whereas the forfeiture of petitioner’s property must be invalidated."! 10 The government has sought to obfuscate the scope of the legal issue regarding RICO/obscenity forfeiture, disingenuously contending that “if bookstores, newsstands, publishing houses, and the like were immune from forfeiture, drug lords and other criminals would waste no ume in investing in those businesses, and insulating their criminal proceeds from seizure.” (Cert. Opp. Br. at 6.) However, Petitioner challenges the constitu- tionality of RICO forfeiture only where predicated exclusively on obscenity violations. RICO forfeitures for drug crimes and other non-speech offenses would be unaffected by this Court's determination that, as applied to obscenity, RICO forfeiture is invalid. If drug money were invested ina video store, forfeiture would no more violate the First Amendment than did the padlocking order in Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986). 1! Petitioner agrees that proceeds from the sale of materials adjudi- cated obscene would be forfeitable without offense to the First Amend- ment. 12 Any departure from this rule would fundamentally jeop- ardize expressive First Amendment rights throughout the country. For example, the obscenity conviction revérsed in Jenkins v. Georgia, 418 U.S. 153 (1974),'2 would today be a RICO predicate offense permitting the government to confis- cate the entire theater chain which exhibited the film, and even the Hollywood studio which produced it. If the govern- ment moved as aggressively as it has against Petitioner in this case, it would have already dismantied the Georgia theater and the Hollywood movie studio, burning their film libraries and quitclaiming the real property before this Court would ever have had a chance to rectify the error. Similarly, both the present administration and local pros- ecutors have frequently threatened even mildly erotic mate- rials such as Penthouse or Playboy magazine.'* Accordingly, should this Court uphold the forfeiture herein, emboldened Prosecutors may well file RICO-obscenity charges against Mainstream national bookstore or convenience store chains where one of their outlets ignored local prosecutorial threats and sold two issues of Playboy, Penthouse or Cosmopolitan, in a particularly prudish community. Based upon an obscenity verdict, the trial court would then be required to forfeit the '* In that case, the major studio film “Carnal Knowledge,” starring Jack Nicholson, Candice Bergen and Ann Margaret, was found obscene by a Georgia jury, and the theater owner's conviction was affirmed by the Georgia Supreme Court. This Court reversed the conviction. '* See, e.g., Playboy Enterprises, Inc. v. Meese, 639 F.Supp. S81 (D.D.C. 1986); Council For Periodical Distributors Association v. Evans. 642 F.Supp. 552 (M.D.Ala. 1986), aff'd. 827 F.2d 1483 (11th Cir. 1987): Freedberg v. U.S. Dept. of Justice, 703 F Supp. 107 (D.D.C. 1988); PHE. Inc. v. U.S. Dept. of Justice, 743 F.Supp. 15 (D.D.C. 1990); and U.S. v PHE, Inc., 965 F.2d 848 (19th Cir. 1992). 13 entire enterprise, ¢.g., the entire local boukstore or conve- nience store, or even the national chain of stores. Nor would the destruction of broad First Amendment rights be limited to erotic expression. If this Court-were to adopt the government's incredibly dangerous argument, noth- ing would prevent government from passing new legislation effectuating a stranglehold on the press and other media. Predicates such as “jeopardizing national security,” “dissem- inating unauthorized information” or defamation could all be added to RICO or become triggering events under separate statutes with forfeiture type remedies. Using such forfeiture laws, the government could then simply forfeit the entire assets of the offending newspaper company or broadcasting business. Indeed, if outright forfeiture of media businesses for any violation of the criminal laws were found constitutionally unobjectionable, there would be no end to the list of predicate crimes that could be legislatively employed as triggering offenses. The point is simply that First Amendment standards of scrutiny must be employed where government seeks to utterly destroy a media business solely because of one or more prior speech violations. A. The Court Of Appeals Erred In Refusing To Analyze These Sanctions Under The Heightened Levels Of Scrutiny Applicable In First Amend- ment Cases. The Court of Appeals was able to sustain the forfeiture herein only by concluding that First Amendment concerns become irrelevant once the government has obtained an obscenity conviction. Following United States v. Pryba, 900 F.2d 748 (4th Cir. 1990), the Eighth Circuit panel untor- tunately held that this egregious form of censorship does not implicate the First Amendment because “ ‘[o]bscenity is not protected . . . and a convicted racketeer may not launder his 14 dirty money by investing it in materials that involve protected speech.’ " Alexander v. Thornburgh, 943 F.2d 825, 834-835.'4 In sharp contrast to the approach taken by the Court of Appeals, this Court has consistently repudiated attempts to linesse the First Amendment by resort to “mere labels” (e.¢., “Tacketeering activity”), holding that they cannot confer “tal- ismanic immunity from constitutional limitations.” New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964). In Fort Wayne Books, lic. v. Indiana, 489 U.S. 46, 67 (i989), the Court reaffirmed this principle in a pre-trial seizure context, clearly mandating the application of First Amendment anal- ysis in a RICO obscenity case: “(T]he state cannot escape the constitutional safeguards of our prior cases by merely recat- egorizing a pattern of obscenity violations as ‘racketeering.’ ” The Court further noted: “It is incontestable that these proceedings were begun to put an end to the sale of obscenity... , and hence we are quite sure that the special rules applicable to removing First Amendment materials from circulation are relevant here... . “The fact that the [state’s] motion for seizure was couched as one under the Indiana RICO law - instead of being brought under the substantive obscenity laws — is unavailing. As far back as the decision in Near v. Minnesota ex rel. Olson, . . . this Court has recognized that the way in which a restraint on speech is ‘characterized’ .. . is of little consequence. .. . For example. in Vance v. Univer- sal Amusement Co., 445 U.S. 308 (1980), we struck down a prior restraint placed on the exhibitions of films under a Texas ‘public nuisance’ statute, find- ing that its failure to comply with our prior case law in this area was a fatal defect.” /d. at 66. (Citations omitted. ) '* Of course, as noted above, Petitioner neither seeks the night to “launder on dirty money,” nor disputes that proceeds from the sale of specific materials determined to be obscene would be forfeitable. 15 Fort Wayne Books thus reaffirmed an essential principle of Near v. Minnesota: that the Court will “cut through mere details of procedure” to analyze realistically “the operation and effect of the statute in substance.” 283 U.S. at 713. See also Kingsley Books v. Brown, 354 U.S. 436, 441 (1957) (“The judicial angle of vision in testing the validity of a statute .. . is ‘the operation and effect.’ ") As Justice White wrote in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981), “the standard of review is determined by the nature of the right assertedly threatened or violated rather than by the power being exercised or the specific limitation imposed.” This Court most recently rejected formalistic attempts to avert First Amendment analysis in Simon & Schuster v. New York Crime Victims Board, __ U.S. __, 112 S.Ct. SO] (1991), addressing the same arguments to which the govern- ment resorts here. In Simon & Schuster, this Court held that even where the state seeks to deprive criminals convicted of non-speech offenses of “the fruits of their crime,” any such remedy which targets and adversely impacts free expression must survive the most searching scrutiny. Invalidating New York’s “Son of Sam” law, which required that any publisher or other “entity” pay over to the Crime Victims Board any funds it owed a person “accused or convicted of a crime” under a contract to produce a book or other work describing the crime, this Court dismissed arguments that First Amend- ment scrutiny should not apply. The state maintained that the discriminatory burden on certain speech did not trigger First Amendment scrutiny because the legislature did not intend to suppress speech about crime, much as the government has argued RICO forfei- tures for obscenity are constitutionally immune because they allegedly are not intended to censor. The Court dismissed this contention as “incorrect; our cases have consistently held that ‘(illicit legislative intent is not the sine qua non of a violation of the First Amendment.’ . . . As we concluded in Minneapolis Star, ‘{(wje have long recognized that even regulations aimed at proper 16 governmental concerns can restrict unduly the exer- cise of rights protected by the First Amendment.’ ” 112 S.Ct. at 509. (Emphasis added.) That the Court of Appeals erred in refusing to apply heightened First Amendment scrutiny is also demonstrated by this Court’s opinion in Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986). In Arcara, this Court upheld the one-year closure of a bookstore due to repeated lewd conduct and prostitution on the premises. Although this Court concluded that First Amendment scrutiny was not required in analyzing the non- speech-predicated closure sanction, both the majority opinion and Justice O’Connor’s concurrence emphasized that where, as here, a media business is to be permanently closed for prior speech violations, such a sanction must be analyzed under heightened First Amendment standards. The majority noted that a “criminal [or] civil sanction” does require First Amendment scrutiny “where it was conduct with a significant expressive element that drew the legal remedy in the first place, . . . or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity.” 478 U.S. at 706-707. As applied in obscenity cases, of course, RICO forfeitures both are trig- gered by expressive conduct and inevitably single out those engaged in expression, Moreover, Justice O'Connor's concurrence in Arcara additionally emphasized that “[i]f . .. a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books .. . , the cases would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review.” Id. at 708. Clearly, every justice in Arcara agreed that full First Amendment standards of review are required when the predicate crime which triggers a closure order is obscenity.'5 'S As the Ninth Circuit Observed in Adult Video Association v. Barr, 960 F.2d 781, 792 (9th Cir. 1992), First Amendment standards of review come into play in reviewing RICO forfeitures based on obscenity, because 17 For all these reasons, the Court of Appeals unquestiona- bly erred in concluding that First Amendment scrutiny is not applicable where the government has destroyed huge quan- tities of presumptively protected expression and has closed down and forfeited an entire network of media businesses, solely because seven of their thousands of media items were ultimately found obscene. B. The Forfeiture And Closure of an Entire Media Business, Exclusively For Obscenity Violations, Is A Classic Prior Restraint Of The Sort This Court Has Condemned As A Per Se Violation of The First Amendment Ever Since Near v. Minnesota. 1. Of the various types of prior restraint con- demned by this Court, the Near type is the most unequivocal First Amendment violation. This Court has stricken a variety of governmental actions and laws as invalid prior restraints. One of the clearest exam- ples of prior restraint is a law requiring a license as a prerequisite to engage in all future presumptively protected speech activities. These laws are prior restraints,'® but will be of “concern for protecting the public's right to receive, as well as the defendant's right to engage in, non-obscene speech.” “The forfeiture of assets derived from drugs, arson, fraud and murder rarely, if ever, implicates a public nght of access 10 information. The forfeiture of assets loosely affiliated with obscenity offenses, by contrast, hurts not just the defendant, but also those members of the public who wish to obtain sexually explicit and erotic videotapes. Government ‘is not free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech.’ /d., quoting Marcus ¥. Search Warrant, 367 U.S. 717, 731 (1961). © See, e.g., Forsyth County v. Nationalist Movement, U.S. __, 112 S.Ct. 2395, at 2401 (1992), and cases there cited. 18 upheld if, facially, they allow no substantive discretion to the licensor, and state sufficiently brief and specific time limits within which the decision maker must grant or deny the license. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 225-229, (1990). ) Another type of prior restraint is the “item-specific” prior restraint where government seeks to suppress the publication or exhibition of a particuiur expressive work. For example, in New York Times v. United States, 403 U.S. 713 (1971), the government sought to enjoin publication of the Pentagon Papers by The New York Times and The Washington Post. The government argued that publication of these papers, contain- ing Vietnam War information, would jeopardize national security. Notwithstanding that argument, this Court adhered to the settled principle that “[a}ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its Constitutional validity” (id. at 714) and that “[t}he Government ‘thus carries a heavy burden of showing justi- fication for the imposition of such a restraint.’ ” Jd. Without rejecting the notion that such a restraint could ever be valid, this Court simply held that the government had not met its extremely heavy burden of justification. Nonetheless, in other item-specific prior restraint cases, this Court has concluded that the government may overcome its heavy burden and prospectively prevent publication or exhibition of certain specific items, but only after they have been proven to be unprotected.'’ | The forfeiture involved in the present case falls into a third category of prior restraint which may be the most '? See, e.g., Kingsley Books v. Brown, 354 US. 4% (19 Freedman v. Maryland, 380 U.S. 734 (1965), both of we me procedures (injunction in Kingsley, individual film licensing in Freedman) for imposing restraints directly on specific expression found to be obscene (Compare R.A.V. v. City of St. Paul, __ US. __, 112 $.Ct. 2538, 2543 (1992), (obscenity is “speech,” but is suppressible speech.) auth ania, ———— 19 inimical to the First Amendment. Typified by the prior restraints condemned in Near v. Minnesota, 283 U.S. 697 (1931), and Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), this type of prior restraint is almost univer- sally found unconstitutional because it imposes a direct and indiscriminate restraint upon future expression by a media business and does so exclusively because of past unprotected speech. It is the most unequivocal violation of the First Amendment, for which this Court has never accepted any attempted justification. As this Court summarized Near in the subsequent case of Kingsley Books v. Brown, 354 U.S. 436 (1957): “Minnesota empowered its courts to enjoin the dis- semination of future issues of a publication because its past issues had been found offensive. In the language of Mr. Chief Justice Hughes, ‘this is of the essence of censorship.’ 283 U.S. at p. 713. As such, it was unconstitutional.” 354 U.S. at 445. The reason these types of prior restraints are the most clearly unconstitutional is readily demonstrated by comparing them to the item-specific restraint stricken in New York Times. In New York Times this Court held that government must have an extremely compelling reason for prospectively restraining even one item of presumptively protected expression. In sharp contrast, in the Near type of prior restraint, the government does not even seek a carefully limited restraint, much less attempt to justify one. Rather, it indiscriminately prohibits future presumptively protected expression simply as retaliation for a prior speech violation. Regardless of whether such a sanction may be characterized as “deserved punish- ment” for the individual or media business in question, the crucial feature, from a First Amendment standpoint, is that, by focusing directly on the media materials, the forfeiture order does not merely punish a wrongdoer, but deprives the public of access to large quantities of presumptively protected expression. Indeed, in the present case, the effect of these 20 forfeitures has been to eliminate virtually all outlets for erotic materials from the Minneapolis/St. Paul area. This comparison of the Near and New York Times types of prior restraints highlights another important aspect of prior restraint doctrine. In prior restraint cases, this Court has always focused on the speech that is restrained, not on the speech that triggered the remedy. The latter may sometimes be enjoined or even destroyed, but protected or unspecified speech may not be. 2. Because RICO forfeiture directly and indis- criminately suppresses future presumptively protected speech in retaliation for prior unprotected speech, this Court's decisions uniformly require its invalidation as an unconstitutional prior restraint. In Near v. Minnesota, this Court struck down a prior restraint constitutionally indistinguishable from RICO forfei- ture. At issue was a statute which authorized an injunction against future publication in order to abate “malicious, scan- dalous and defamatory” periodicals as a public nuisance. “Minnesota empowered its courts to enjoin the dissemination of future issues of a publication because its past issues had been found offensive,” as this Court later characterized the Near prior restraint in Kingsley Books v. Brown, 354 US. at 445. Because Near had published defamatory matter in nine previous editions of his periodical, The Saturday Press, the trial court: (1) ordered the permanent abatement of The Satur- day Press,'* necessarily prohibiting all future issues of that magazine whether or not they were defamatory; and (2) per- manently enjoined the defendants from ever again publishing any scandalous or defamatory newspaper, whether under the title “The Saturday Press” or any other. 283 U.S. at 706. This '* The trial court also temporarily restrained the defendants from publishing or circulating “any future editions of .. . The Saturday Press” pending trial. 283 US. at 704-705. ) : 21 Court squarely held both speech-preclusive remedies uncon- stitutional: unprotected speech such as defamation could be punished subsequent to its publication, but not by restraining other presumptively protected speech in advance. For govern- ment to preclude future speech in response to pest unprotected speech, said Chief Justice Hughes, ts the essence of censorship.” 283 U.S. at 713. The forfeiture here is a prior restraint of expression for at least three reasons. First, as to the countless thousands of magazines and videos which the government destroyed, oaly seven were found obscene. Accordingly, the overwhelming majority were presumptively protected expression which were supressed before they were sold to the public and before any judicial determination that they lacked constitutional protec- tion. Second, by forfeiting both the ten parcels of real property at which these businesses existed, as well as all of the equip- ment necessary to operate these businesses (e.Z., cash regis- ters, shelves, video projectors, etc.), the government directly prevented these businesses from disseminating and continuing to disseminate any other constitutionally protected materials in the future. Accordingly, the forfeiture of these businesses accomplished an extremely effective prior restraint of the future expressive activity of these businesses, indistinguish- able from the prior restraint impact of the abatement order stricken in Near. Third, the forfeited bank accounts and proceeds of the businesses seized under 18 U.S.C. § 1963(a)(2) and (3), also constituted a prior restraint. The statutory term “proceeds,” as construed by the government, is extremely broad, represent- ing gross receipts rather than mere profits. The forfeiture - any media business’ gross revenues Over a lengthy period will unquestionably force its closure, necessarily preventing 19 The four yours of gross revenues fortetted in the present — seems typical, involving forfeiture of all revenues obtained dumng 198! through 1988. C.A. 144. 22 all of the business’ future speech activities. Accordingly, forfeiture of proceeds is a prior restraint as well. As early as Near, this Court dismissed the government's present arguments. The Court made clear that a blanket pro- spective restraint is not “punishment in the ordinary sense, but suppression.” /d. at 711. “Subsequent punishment for such abuses as May exist is the appropriate remedy, consistent with constitutional privilege,” ie. the right to be free from restraints upon protected or unspecified speech. Jd. at 720. | For all the reasons articulated in the landmark Near opinion, both this Court and the state and lower federal courts have consistently enforced as a per se rule the Near prohibi- ion against broad prospective restraints upon presumptively protected expression in retaliation for prior speech violations. Because the lower courts have so universally repudiated the particular species of prior restraint rejected in Near, cases of this type have rarely reached this Court. Forty years after Near, another case came before this Court involving a broad and direct prospective restraint upon presumptively protected expression. In Organization for a Better Austin v. Keefe, 402 U.S. 415, 417 (1971), a real estate broker obtained an injunction to prevent the Organization For A Better Austin “ ‘from passing out pamph'ets, leaflets or literature of any kind, and from picketing.’” The organization had severely criticized the realtor for “blockbusting” tactics, and he asserted that their picketing and leafletting violated his rights to privacy. In striking the order down as an impermissi- ble prior restraint, this Court emphasized that the doctrine of prior restraint prohibits this type of open-ended order regard- less of whether the predicate speech was protected or unprotected: “It is elementary, of course, that in a case of this kind the courts do not concern themselves with the truth or validity of the publication. Under Near y. Minnesota, .. . the injunction, so far as it imposes prior restraint on speech and publication, consti- tutes an impermissible restraint on First Amend- ment rights. Here, as in that case, the injunction operates . . . to suppress, on the basis of previous 23 publications, distribution of literature ‘of any kind.’” Jd. at 418. (Emphasis added.) As these cases make clear, whether a remedy — be it an injunction, denial of a license, or forfeiture - constitutes a prior restraint does not turn upon the speech which triggered the remedy, but rather upon what is restrained. A remedy which indiscriminately precludes future protected or unspecified speech operates as a prior restraint, and the fact that it is triggered by unprotected or illegal speech does not insulate it from First Amendment review. Reaffirming this principle in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441 (1957), this Court upheld a civil injunctive procedure whereby the state could restrain the dissemination of specific books judicially determined to be obscene. The Court expressly distinguished this narrow injunctive remedy from the broad prior restraint condemned in Near, noting that the trial judge had “refused to enjoin ‘the sale and distribution of later issues’ [of the obscene book -is] on the ground that ‘to rule against a volume not offered in evidence would . . . impose an unreasonable prior restraint upon freedom of the press.’” /d. at 439. Observing that the state had “studiously withh{eld] restraint upon matters not already published and not yet found to be offensive,” the Court reaffirmed that such a restraint would be “ ‘the essence of censorship.’” Jd. at 445, quoting Near. Indeed, many opinions of this Court have echoed the concept articulated in Near and Keefe that the protections of the First Amendment do not disappear where unlawful expres- sion is being punished. As recently as this Court’s decision in R.A.V. v. City of St. Paul, __ U.S. __, 112 S.Ct. 2538 (1992), Justice Scalia, writing for the majority, noted that even when government undertakes to regulate speech within one of the narrow “proscribable categories,” such as obscenity, it must do so with due regard for the broader principles of the First Amendment. To say that obscenity and libel constitute catego- ries of speech which may be censored is not to say “that they are categories of speech entirely invisible to the Constitu- tion.” 112 S.Ct. at 2543. “Our cases surely do not establish the proposition that the First Amendment imposes no obstacle 24 whatsoever to regulation of particular instances of proscrib- able expression, so that government ‘may regulate [them] treely.""2° Jd. at 2543. Similarly, in Simon & Schuster, supra, this Court struck a law under the First Amendment even though it was chal- lenged by one whose triggering crime was murder, clearly a honspeech violation. Simply stated, this Court has consis- tently ruled that First Amendment considerations do not evap- orate merely because the triggering conduct may have been unlawtul, Here, the government has violated an even more bedrock principle of First Amendment law than the ban on content- based discriminations invoked in R.A.V. and Simon & Schus- fer.*' In the Near prior restraint situation, as discussed above, where government indiscriminately precludes future protected or unspecified speech, the unlimited nature of the remedy is its greatest essential evil. If there is any per se rule limiting governmental interference with speech, it is the Near rule that past speech abuses may not be redressed by measures which directly and indiscriminately prevent disseminating presump- lively protected expression in the future. This Court has also invalidated laws which impose a greater burden on speech-related businesses than on others. See, e.g., Minneapolis Star & Tribune Co., v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983); and Arkansas Writers Project v. Ragland, 481 U.S. 221 (1987). The Court, discerning the potential for governmental control of speech through unequal taxation, struck the tax laws in those cases, °° Along the same lines, in Smith v. California, 361 US. 147, 155 (1959), this Court recognized: “The existence of the State’s power to prevent the distribution of obscene matter does not mean that there can be ho constitutional barner to any form of practical exercise of that power.” *! As this Court stated in Minneapolis Star: “Prior restraints . . . Clearly strike to the core of the Framers’ concerns, leading this Court to teat them as particularly suspect.” 460 U.S. at 583, n.6. 25 in order to prevent injury to important First Amendment rights. Yet RICO forfeiture inflicts far graver injury to First Amend- ment rights than the discriminatory taxation schemes in Ragland and Minneapolis Star. The RICO forfeiture remedy operates not just as a burden but as a ban on future speech. Whereas the unfair taxation of businesses in Ragland and Minneapolis Star could tend to deter speech, it has nowhere near the absolutely preclusive impact of RICO forteiture. The controlling principle is that whether a sanction violates the First Amendment must be based upon “the operation and effect of the statute in substance.” Near, 283 U.S. at 713. Since the operation and effect of the laws stricken in Minneapolis Star and Ragland was unconstitutional, a fortiori: the operation and effect of a complete ban on future expression solely because of prior speech violations must also be unconstitutional. Moreover, this Court need not speculate about the operation and effect of RICO forfeiture. Not only is the effect of this statute apparent from the present facts (e.g., the virtual elimination of erotic media stores in the Twin Cities and the massive destruction of presumptively protected media materials), this total destruction of a media business was both the Justice Department's clearly intended purpose?? and also consistent with Congress’ intent in 22 While an illicit motive “is not the sine qua non of a violation of the First Amendment,” Minneapolis Star, 460 U.S. at 592, nonetheless, where ithe government has clearly pursued these remedies for the improper pur- pose of destroying both protected sexually oriented expression to which it is overtly hostile as well as unprotected expression, it commits the clearest possible violation of the First Amendment. (See, e.g., Justice O'Connor's concurrence in Arcara expressing the view that if government “were to use 4 nuisance statute as a pretext for closing down a bookstore because it sold indecent books . . . the case would clearly implicate First Amendment concems. .. ." 478 U.S. at 708.) Here, evidence of the executive branch's censorial purpose is abun- dant. First, in a typical RICO forfeiture, the only seized property which the government will actually destroy is that which is contraband. By destroy- ing, rather than selling, this vast inventory of presumptively protected 26 enacting this forfeiture statute, ie., to permanently disable any media enterprise found to have committed two or more obscenity violations.?* This disabling statutory purpose has certainly been thoroughly effectuated in the present case. na Because a broad prospective restraint such as RICO for- leiture sO universally violates core First Amendment princi- ples, this Court has essentially treated the Near type prior restraint as a per se constitutional violation. In neither Near nor Keefe did this Court hesitate to condemn the prospective restraints Outright, nor did any member of the Court even suggest that a compelling interest analysis was required. expression (and, indeed, by doing so before this Court could even provide appellate review), the government has clearly manifested a censorial desire to remove all sexually oriented materials from public access, regardless of their protected status. Additionally, in the usual RICO forfeiture, the government sells the forfeited business intact, allowing unrelated third parties to lawfully oper- ale the business in the future. In this case, however, the government chose to dismantle these presumptively protected businesses by separately selling all of the real and personal property necessary to operate them. Indeed, these businesses were far more valuable as going concerns than when “sold for parts.” Recently the government quitclaimed one of petitioner's parcels of real estate appraised at $145,000 by the U.S. Marshal for the mere sum of $1. This conduct demonstrates a clearly unconstitutional purpose to prevent the sale of all sexually oriented materials, not merely those which are obscene. This is censorship at its worst. Finally, additional evidence of the government's desire to suppress constitutionally protected materials dealing with sex is found in the collec- tion of cases referenced in note 13, supra. a *% As this Court recognized in Russello v. United States, 464 U.S. 16 26-29 (1983), Congress’ purpose in enacting the RICO statute was to destroy a RICO enterprise by making “an attack . . . on their source of economic power itself.” (/d. at 27.) The forfeiture provision “was intended to serve all the aims of the RICO statute, namely, to ‘punish, deter. tacapacitate, and . . . directly to remove the corrupting influence from the channels of commerce.’” Id. at 27-28. 27 Regardless of whether this Court should adopt Justice Kennedy's suggestion of a per se rule against content-based discriminations2*, this Court has always adhered to such a rule when examining prior restraints of the Near variety. Because a contrary rule would allow government enormous discretion to stifle disfavored speech and speakers prospec- tively, this Court has uniformly held that government may not punish unprotected speech by flatly prohibiting future pre- sumptively-protected speech. This Court’s decisions prohibiting mass seizures of erotic materials provide additional support for facially invalidating RICO/obscenity forfeiture. See Marcus v. Search Warrants, 367 U.S. 717 (1961); Quantity of Copies of Books v. State of Kansas, 378 U.S. 205 (1964); see also Heller v. New York, 413 U.S. 483, 491 (1973); Lo-Ji Sales, Inc. v. New York,442 U.S. 319, 327-328 (1979); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, at 62-63 (1989), all expressly reaffirming the principles of Marcus and Quantity of Books. The Court’s common rationale in Marcus and Quantity of Books was that in the absence of procedures designed to focus searchingly on the obscenity of every item, mass seizures run the risk that some protected materials will be temporarily removed from circulation simply because they are present at the same location where obscene materials are sold. Although these cases involved pre-judgment seizures, their First Amendment rationale applies with even greater force to 24 Compare Justice Kennedy's concurrence in Simon & Schuster, 112 S.Ct. at 512-515, where, in the context of the content-based discrimination presented by the Son-of-Sam law, he advocated adoption of a per se rule, rather than the compelling interest analysis applied by the majority. The rationale for such a rule was that to apply even a compelling-interest balancing test “might be read as a concession that States may censor speech whenever they believe there is a compelling justification for doing so.” 112 S.Ct. at 513. To like effect, see Justice Kennedy’s concurring opinion in Burson v. Freeman, __ U.S. __, 112 S.Ct. 1846, at 1858 (1992). 28 invalidate RICO forfeiture premised on obscenity violations. Here, protected materials are permanently, not temporarily, removed from circulation, simply because some obscene materials are found at the same location. The forfeiture herein simply cannot be squared with the underlying premise of both Marcus and Quantity of Books. Finally, the Court of Appeals erred in adopting the gov- croment’s assertion that RICO forfeiture is permissible because it is part of a criminal statute and may be charac- terized as “subsequent punishment” rather than a prior restraint. This distinction clearly misses the constitutional mark. First, Near neither stated nor implied that the First Amendment permits all subsequent punishments for speech Violations. Quite to the contrary, Near noted that no criminal punishment was involved in that case and then expressly stated: “We have no occasion to inquire as to the permissible scope of subsequent punishment.” 283 U.S. at 715 (emphasis added). Obviously, by stating that it had no occasion to inquire as to the permissible scope of subsequent punishment, this Court neither endorsed all subsequent punishments nor suggested a bright line distinction between “subsequent pun- ishment™ and prior restraint. Indeed, by so Stating it clearly implied there was some tangible First Amendment limit as to how far subsequent punishment could go. ) Second, the mere fact that a sanction is imposed as part of a criminal statutory scheme cannot provide the litmus test separating the permissible from the impermissible sanction. If that were the case, it would be permissible, after a criminal conviction and under an appropriately worded criminal stat- ute, to issue the very injunction stricken in Near! Similarly, it would be absurd in the present case to suggest that Near would have approved as a permissible “punishment” a sanc- tion (1.e., forfeiture) whose “operation and effect” was indis- tinguishable in any meaningful way from the very sanction Near invalidated. 29 The principles which restrict prior restraints and which control this case were clearly articulated in Near, Keefe and Kingsley, supra. As the Court emphasized in Near and King- sley, whether a statute imposes an impermissible prior restraint or permissible punishment must be measured by its “operation and effect,” and cannot be avoided by a facile characterization of the sanction as “punishment.” If the constitutional guarantee could be evaded simply by a legislative determination that the forfeiture of a business is a “punishment” (a classic example of a “talismanic label”), the entire First Amendment prohibition against prior restraints would be meaningless. Under so toothless a test, nothing would prevent the most outrageous control of the press and other media by government. Nearly every media entity has, at one time or another, committed some speech transgression, e.g., defamation, invasion of privacy, obscenity, a “national security” violation, etc. Certainly, media enterprises are constantly called upon to make their best guesses as to whether particular expression falls within the realm of constitutional protections. It is inevitable that nearly every communications business will make an error of judgment at some time or another. Yet, if government at any level need only label a sanction as a “criminal punishment” in order to forfeit a speech busi- ness for one such “wrong guess,” the only media entities which will ultimately survive are those which are approved by government. As noted above, the asserted distinction between “prior restraint” and “subsequent punishment’ is neither meaningful nor useful, because it would permit the imposition of the very sanction condemned in Near if authorized by a criminal statute. Instead, the appropriate analysis should focus on whether the particular restraint is one which directly sup- presses presumptively protected expression. While many types of governmental sanctions will have the effect of indirectly restraining expression, ¢.g., a jail sentence or a fine, the hallmark of a sanction which is a direct and impermissible prior restraint is that «f ts imposed for a prior speech violation and in every case where the statutory 0 sanction ts imposed, it will immediately or inevitably suppress speech. Petitioner submits that this test articulates the com- mon rationale which both explains this Court's previous deci- sions involving sanctions challenged as prior restraints and also provides the only constitutionally appropriate method for analyzing the endless variety of sanctions that will inevitably arise in the future. Under this limiting principle, it is clear that RICO forfei- lure for prior speech violations must fall whereas typical jail sentences or fines for obscenity violations remain valid. The unlimited forfeiture required by 18 U.S.C. § 1963(a)(1) and (2) will, in every RICO obscenity application, necessarily or immediately suppress presumptively protected expression. Even if one assumed that every single book and videotape in a forfeited store were obscene, the forfeiture of the real and personal property used in or necessary for dissemination of future presumptively pretected expression would still, and in every case, suppress the business’ ability to engage in future presumptively protected expression. In contrast, while imposition of a six month jail sentence for an obscenity violation might have the effect of shutting down the expressive business, it would likely not have that effect in most cases. In the present case, for example, had Petitioner’s only punishment been his six year jail sentence and his $200,00Q fine, his ten businesses would have surely remained open to the public. However, the statutorily manda- ted forfeiture permanently eliminated the stores. As a result, the public has been deprived of most of the local media outlets for obtaining constitutionally protected erotic mate- rials. In sum, since RICO forfeiture aims directly at expressive businesses based on prior speech violations and, in every case directly compels the suppression of speech itself, and/or the forfeiture of the neutral real and personal property used in or necessary for engaging in presumptively protected speech activities, it must be invalidated as an impermissible prior restraint. 31 3. In scores of cases invalidating padlock orders, license revocation, and seizure of the equip- ment and other property of theatres and bookstores as punishment for obscenity viola- tions, the lower federal and state courts have universally concivded that such remedies operate as unconstitutional prior restraints. Notwithstanding the clarity of the prior restraint doctrine, in the early 1970s, state and local governments, in order (o eliminate the “inefficiencies” of individual obscenity prosecu- tions, adopted various novel and equally unconstitutional pre- cursors to RICO forfeiture. They opted to prevent future obscenity violations by simply shutting down the offending media business; they would “punish” obscenity with a padlocking order or by revoking or denying business licenses. With virtual unanimity, an extraordinary number of state and lower federal courts blocked these attempts to close bookstores and theaters as “nuisances” by padlocking or injunction,” 25 The following cases have found nuisance laws unconsututional which provide for the padlocking of businesses where obscenity offenses have occurred in the past: Universal Amusement Co., Inc v. Vance, S87 F.2d 159, 164-166 (Sth Cir. en banc 1978) [as to this particular point, al! 14 judges of the en banc court were in agreement), aff'd. on other grounds, 445 U.S. 308 (1980); Pollitt v. Connick, 596 F Supp. 261, 269-272 (E.D.La. 1984); People ex rel. Busch v. Projection Room Theater, 17 Cal.3d 42, 130 Cal. Rpu. 328, 550 P.2d 600 (1976), cert. den. 429 U.S. 922 (1976), General Corp. v. Sweeton, 320 So.2d 668 (Ala. 1975), cert. den. 425 U.S. 904 (1976); Kansas v. A Motu Picture Entitled “The Bet”, 219 Kan. 64, $47 P.2d 760 (1976): Gulf States Theaters of Lousiana vy. Richardson, 287 So.2d 480 (La. 1974); New Riveria Arts Theatre v. Davis, 219 Tenn. 652, 412 $.W.2d 890 (1967); Society to Oppose Pornography, Inc. v. Thevis, 255 So.2d 876 (La.App. 1972); Giarrusso v. D Iberville Gallery, 295 So.2d 891 (La. App. 1974); State ex rel. Blee v. Mohney Enterprises, 289 N.E.2d 519 (Ind.App. 1973); Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974); State ex rel. Field v. Hess, S40 P.2d 1165 (Okla. 1975), Common.- wealth ex rel. Davis v. Van Emberg, 347 A.2d 712 (Penn. 1975), City of Minot v. Central Ave. News, Inc., 308 N.W.2d 851 (N.D. 1981); Parish of Jefferson v. Bayou Landing Lid., Inc. 380 So.2d 158 (La. 1977), overruling 32 or, allernatively, by revoking their licenses,2° upon a showing that they sold or exhibited obscenity in the past. LaApp., 341 So.2d 23; Muchem y. State ex rel. Schaub, 250 So.2d 883 (Pla. 1971). See also Nihiser v. Sendak, 405 F.Supp. 482 491-492 (N.D.Ind. 1974), vacated and remanded on other grounds, 423 U.S. 976 (1975), onder re-entered August 16, 1976 (unpub.), aff'd. 431 US. 961 (1977), Huffman v. Pursue, Lid, 420 US, 592, 612, n. 23 (1975); of Speight v. Slaton, 415 U.S. 333 (1974); State ex rel. Ewing v “Without a Stach”, 307 N.B.2d 911 (Ohio 1974), | °° In the following cases, courts have held unconstitutional laws which allowed a permit to be revoked or denied because of a prior obscenity violation: City of Paducah v. Investment Entertainment, 791 F.2d 463 (6th Cur. 1986); Gayety Theaters, Inc. v. City of Miami, 719 F.2d 1550 (1 Ith Cir 1983); Entertainment Concepts Inc. III y. Maciejewski, 631 F.2d 497 S06 (7th Cir. 1980); Cohen v. City of Daleville, Alabama, 695 ESupp. 1168 (M.D.Ala. 1988); Genusa v. City of Peoria, 475 F Supp. 1199, 1207-09 (C.D. 1979), aff'd. 619 F.2d 1203, 1217-1220 (7th Cir, 1980): Corn- flower Entertainment, Inc. v. Salt Lake City C orp., 485 F Supp 777 (D.Utah 1980); Bayside Enterprises, Inc. v. Carson, 470 F Supp 1140 (M.D.Fla. 1979); San Juan Liquors v. Consol. City of Jacksonville, 480 F.Supp. 151 (M.D.Pla. 1979); Natco Theatres Inc., v. Ratner, 463 F Supp 1124 (S.D.N.Y. 1979); Yuclan Enterprises Inc. v. Arre, 488 F Supp. 820 (D.Hawaii 1980); Avon 42nd Street Corp. v. Myerson, 352 F Supp. 994 (S.D.N.Y. 1972); Oregon Bookmark Corp. v. Schrunk, 321 ESupp. 639 (D.Oregon 1970); Perrine v. Municipal Court, § Cal.3d 656, 97 Cal Rptr 320, 488 P2d 648 (1971), cert. den. 404 U.S. 1038 (1972); Kuhns v. Santa Cruz Co. Bd. of Sup’rs., 128 Cal.App.34 369, 374-375, 181 Cal. Rptr. 1, 3-4 (1982); City of Seattle v. Bittner, 81 Wash.2d 747, $05 P2d 126 (1973): Alexander v. City of St- Paul, 303 Minn. 201, 227 N.W2d. 370 (Minn, 1975); City of Delevan \. Thomas, 31 ILApp.3d 630, 334 NE2d 190 (1975), Hamar Theatres inc. v. City of Newark, 150 NJ Super. 14, 374 A.2d S02 (1977); People v. J.W. Productions. 413 NYS 2d 552 (N.Y.C.CrCt. 1979); State v. Bauer, 189 Ariz. 443, 768 P2d 175 (Anz. App. 1988); see also Intern. Soc. for Krishna Consciousness x Eaves, 601 F.2d 809, 832-833 (Sth Cir. 1979); Fernandes v. Limmer, 663 F.2d 619, 629-630, 632 (Sth Cir. 1981); of. Marks v. City of Newport Ky 344 F Supp. 675 (E.D-Ky. 1972); Chulchian v. City of Indianapolis, 477 F Supp. L28, 131-132 (S.D.ind. 1979), aff'd., 633 F2d 27, 30 (7th Cir ) 2 33 The Georgia Supreme Court's opinion in Sanders v. State, 231 Ga. 608, 613-614, 203 S.E.2d 153, 157 (1974), typifies the courts’ emphatic rejection of these prior restraints: “The injunction closing the store and padlocking it as a public nuisance necessarily halted the future sale and distribution of other printed material which may not be obscene, thereby . . . creating an uncon- stitutional restraint upon appellant. “(T)he overly broad coverage contemplated by this statute . . . creates a chilling effect upon the exercise of free expression. We cannot throw out the protected to rid ourselves of the unprotected as these laws would require. .. . We must use the deft, the precise and the remedial incision of the surgeon rather than the bludgeoning blow of the butcher to cut away cancerous obscenity. If we do not, the body politic will suffer too mortal a blow from our zeal to have a decent society, free of obscene pub- lications but otherwise full of poetry and prose.”?’ Additionally, in both civil and criminal obscenity cases, the courts have unanimously held that the state may not seize or forfeit personal property (shelves, projectors, etc.) used to d'sseminate obscene materials.2* In short, innumerable courts 2? This from a court which can hardly be characterized as “soft on obscenity,” as, just one year earlier, it had upheld the obsceaity convicuon of a theater manager for exhibiting the film “Carnal Knowledge” in State v Jenkins, 230 Ga. 726, 199 $.E.2d 183 (1973), unanimously reversed by this Court in Jenkins v. Georgia, 418 U.S. 153 (1974). 2 See, e.g., United States v. Polak, 312 FSupp. 112, 116 (E.D Pa. 1970) (ordering return of defendant's personal property; court ruled that but even after a final determination of obscenity, citing Near), State of Kansas v. A Motion Picture Entitled “The Bet”, 219 Kan. 64, 547 P.2d 760, 771 (1976) (enjoining enforcement of statute authorizing forfeiture and destruction of movie projectors, theater seats, etc., upon proof of an obscenity violation, on grounds that this was a pnor restraint on future presumptively protected expression); State v. Feld, 155 Ariz. 88, 745 P.2d 146, 155 (Ariz.App. 1987), cert. denied, 485 US. 977 (1988) (RICO 34 have applied the per se rule of Near to invalidate prior restraints considerably less drastic than RICO’s outright confiscation of the entire media business including all its protected inventory. Very recently in United States v. California Publishers Liquidating Corporation, 778 F.Supp. 1377 (N.D. Tex. 1991), the district court refused to order the RICO-like obscenity forfeitures the government sought under the discretionary forfeiture provisions of 18 U.S.C. § 1467, and sharply rebuked the government for attempting to invoke such pat- ently unconstitutional remedies: forfeiture provisions unconstitutional as applied in obscenity case to autho- rize post-conviction forfeiture of “bookshelves, cash registers, or similar items” used for protected speech activities); Maguin v. Miller, 433 F.Supp. 223, 230 (D.Kan. 1977) (enjoining seizure of “property necessary for the operation of theaters,” as such seizures would “constitute an impermissible prior restraint”), Bongiovanni v. Hogan, 309 F Supp. 1364, 1366 (S.D.N_Y. 1970) (ordering retumm of movie projector lenses seized prior to trial); Interstate Circuit, Inc. v. City of Dallas, 247 F Supp. 906, 911 (N_D.Tex. ° 1965) (enjoining forfeiture of projection equipment, citing Near); G.1 Distributors, Inc. v. Murphy, 336 FSupp. 1036, 1038-1039 (S.D.N_Y. 1972) (ordering return of “items required in the conduct of” bookstore, on grounds that seizure “effectively prevented” distribution of other, constitu- tionally protected materials); Star Distributors, Lid. v. Hogan, 337 F Supp. 1362, 1364 (S.D.N_Y. 1972) (ordering return of property the seizure of which “worked a complete and total restraint” on publisher's lawful First Amendment activities and “deprived the public of an opportunity to receive its non-obscene publications”); Porno, Inc. v. Municipal Court, 33 Cal.App.3d 122, 126, 108 Cal. Rpt. 797, 800 (1973) (ordering return of projectors On prior restraint grounds); Europo Books, Inc. v. Pomerleau, 395 A.2d 1195, 1198 (Md. 1979) (enjoining practice of seizing projectors on theory that this was as invalid a prior restraint as “to seize the printing presses because the newspaper contains patently obscene matter”); see also L.M.E., Inc. v. City of Hollywood, 60S F Supp. 185, 189 (S.D.Fla. 1985): Jodbor Cinema, Lid. v. Sedita, 309 F Supp. 868, 876 (W.D.N.Y. 1970); Ellwest Streo Theatre, Inc. v. Byrd, reported sub nom. Universal Amuse- ment Co., Inc. v. Vance, 404 F Supp. 33, 51, 54-57 (S.D.Tex. 1975); Dexter v. Butler, S87 F.2d 176 (Sth Cir. en banc 1978) (seizure of projectors based on probable obscenity constituted bad faith harassment). 35 “Forfeiture under these circumstances of truly de minimis use of the properties for the commission of the [obscenity] offenses simply serves no legitimate end; that is, no end other than destroying legal business enterprises simply because their stock in trade is sexually related materials.” 778 F.Supp. at 1389. “(T]he government's requested forfeiture of Great Western's printing facility is subject to close First Amendment analysis and likely would, if granted, constitute an impermissible prior restraint of expression under Near v. Minnesota and its prog- eny.” Jd. at 1394. In contrast to this avalanche of authority, the very few lower courts which upheld RICO forfeitures or padlockings based on prior obscenity violations did so by concluding that First Amendment analysis does not apply because “obscenity is not protected by the First Amendment.” However, for all the reasons the overwhelming majority of lower courts found the principles of Near applicable in the obscenity context, they were wrong. The First Amendment simply cannot be avoided by imposing a direct prior restraint as a sanction under a criminal statute and then invoking the talismanic |abel of “subsequent punishment.” C. The RICO Act’s Forfeiture Remedy Also Violates the First Amendment Because It Is Overbroad In Its Censorial Effect Upon Protected Speech. Just as RICO/obscenity forfeitures facially violate the prior restraint rule of Near, they violate virtually every other foundational First Amendment limitation, including the over- breadth doctrine. Both as an overlapping complement and as an alternative to prior restraint analysis, the facial over- breadth doctrine also mandates reversal of the decision below. This Court has rarely if ever been asked to hold a sanc- tion for a speech offense - as opposed to the substantive definition of the speech offense - void for overbreadth. The more common First Amendment overbreadth case involves 16 legistation which exceeds its permissible scope by criminaliz- ing of otherwise prohibiting constitutionally protected expres- sion. As a doctrinal matter, virtually every overbroad sanction which precludes future protected speech has been quickly repudiated on prior restraint grounds, like the injunction in Near The lower courts having so thoroughly repudiated padlocking injunctions and license revocation for obscenity offenses, for example, this Court has never before been con- fronted with such an egregiously censorial remedy for obscenity as RICO torteiture. Until RICO forfeiture became a weapon in the govern. men’s aggressive crusade against erotica, the federal govern. ment had never dared to punish a speech offense by such drastic and speech-suppressive means as confiscating an emtire chain of media businesses and burning its presump- lively protected inventory. This case is therefore somewhat novel, if only because of the extremes to which government has gone. Although RICO/ obscenity forfeiture is readily subject to invalidation as a classic prior restraint, it is also overbroad. The forfeiture provisions have been applied, as their mandatory language requires, to confiscate not just contraband obscene materials and proceeds from their sale, but Petitioner's entire chain of bookstores, video stores, and theaters including the hundreds of thousands of media items which comprised their inventory. The government acquires all ownership rights to these mate- tials and related property, so that it can destroy both the materials and the businesses - as indeed the government has done in this case. As these facts vividly demonstrate, the RICO/obscenity forfei- lure provisions provide a textbook example of facial overbreadth. Because the government is authorized to invoke this remedy in response to obscenity violations, in every case, this sanction will be visited upon a defendant engaged in expressive activity, almost 47 invariably a media entity such as a theater or a bookstore chain °” The scope of RICO’s mandatory forfeiture is such that it neces sarily requires, as in this case and Pryba, torteiture of the entire chain of media businesses. Thus the RICO Act targets expression in the first instance, and then allows the government to confiscate inventories Of protected expression along with the necessaly Micans lor future expression. As this Court has enunciated the overbreadth doctrine in its prior cases, RICO’s provisions for blanket forfeitures” in obscenity Cases represent the sort of overbreadth to which this Court referred in Members of City Council of the City of Los Angeles v. Taxpayers For Vincent, 466 U.S. 789, 797-79% (1984), noting that such speech-suppressive statutes may be both unconstitutional as applied to the defendant's conduct and also “unconstitutional on their lace because... any attempt to enforce such legislation would create an unacceptable risk of the suppression of ideas. In cases of this character a holding of facial invalidity expresses the conclusion that the statute could never be applied in a valid manner.” Likewise in Secretary of State of Maryland v. Joseph I Munson Co., Inc., 467 U.S. 947, 967-968 (1984), the Cour; observed: 2% Depending solely upon the prosecutor's discretion and creativity, the RICO defendants in an obscenity case can casily include as CO-Cconspir- ators every entity in the chain of production and distribution of the allegedly obscene material, ¢ g., the studio which produced a film or the printing company which printed a book or magazine. Convictions of such defendants have already occurred in recent prosecuuons under the federal obscenity laws. See United States v. California Publishers Liquidating Corporation, 778 F Supp. 1377 (ND. Tex. 1991) (refusing to fortert assets of company which printed the boxes for obscene videotapes). ” As noted previously, this facial invalidity affects only § 196%Ma\1) and (2) of the RICO Act; § 1963(a)3) ts susceptible of a constitutional construction (which the courts below did not give it), lumit- ing forfeiture to the actual obscene items and the proceeds from their sale. 38 “Where, as here, a statute imposes a direct restric- tion on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State’s objectives are too imprecise, so that in all its applications the statute Creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack.” Similarly, just last term in R.A.V. v. City of St. Paul, 112 S.Ct. at 2542 n. 3, Justice Scalia noted that the petitioner had properly challenged the ordinance as “ ‘overbroad’ in the sense of restricting more speech than the Constitution per- mits, even in its application to him.” In virtually every imaginable application in the obscenity con.cxt, RICO forfeiture clearly “imposes a direct restriction on protected First Amendment activity,” a restriction so broad that “any attempt to enforce such legislation would create an unacceptable risk of the suppression of ideas.” Perhaps most directly analogous is NAACP y. Alabama, 377 U.S. 288 (1964), in which this Court invalidated for Overbreadth a sanction unduly restricting the prospective | exercise Of First Amendment rights, even though the trigger- ing conduct (involving both speech and non-speech activities) was unprotected. In that case, Alabama had obtained an injunction against the NAACP, prohibiting it from conducting its activities within the state on various asserted grounds, including the organization's failure to comply with state laws requiring foreign corporations to register, and its allegedly illegal sponsorship of consumer boycotts. 377 U.S. at 303, 307. This Court held that even if the NAACP’s activities did violate valid state laws, the injunction permanently “denying its members the right to associate” in the state was uncon- Stitutionally overbroad. /d. at 306, 307-308. “This Court has repeatedly held that a governmental purpose to control or prevent activities constitu- tionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. .. . ‘[T]he power to regulate must be so exercised as not, in attaining a permissible end, 39 unduly to infringe the protected freedom.’ Cantwell v. Connecticut, 310 U.S. 296, 304. ‘Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ Shelton v. Tucker, 364 U.S. 479, 488.” Id. at 307-308. More recently, Justice O’Connor’s opinion for the Court in Airport Commissioners of Los Angeles v. Jews for Jesus, 482 U.S. 569 (1987), reaffirmed that facial invalidation is the appropriate remedy for such substantially overbroad laws. In Jews for Jesus, this Court held that a resolution banning all First Amendment activities in the LAX terminal area was facially unconstitutional for overbreadth. The Court unani- mously concluded that regardless of whether the airport ter- minal was a public or a non-public forum, the resolution was overbroad “because no conceivable governmental interest would justify such an absolute prohibition of speech.” 482 U.S. at 575. Likewise, in this case, no further First Amendment anal- ysis is necessary, because no conceivable governmental inter- est can justify its confiscation of media businesses in retaliation for unprotected speech.*! Because every use of the statute to seize presumptively protected inventory and all the other speech-facilitating property of a communicative busi- ness is overbroad, facial invalidation is the required remedy. As the district court observed in United States v. California Publishers Liquidating Corporation, 778 F.Supp. at 1394, wholesale forfeiture for obscenity offenses “simply serves no legitimate end.” *? 3! To be sure, this rule is but another way of stating the Near rule against prior restraints; overbreadth analysis of a sanction for speech violations simply yields the same result. 32 Although the Ninth Circuit in Adult Video Association v. Barr, 960 F.2d 781 (9th Cir. 1992), ostensibly rejected the plaintiffs’ claim that RICO/obscenity forfeitures are facially overbroad, 960 F.2d at 787, just such an inchoate theory of overbreadth actually appears to be the basis for 40 Il. THE TOTAL FORFEITURE OF A $25 MILLION BUSINESS, IN ADDITION TO A SIX-YEAR PRISON TERM AND $200,000 IN FINES, VIO- LATES THE EIGHTH AMENDMENT AS A GROSSLY DISPROPORTIONATE PUNISHMENT FOR DISTRIBUTING SEVEN OBSCENE ITEMS. Ferris Alexander has received the most severe economic sanction ever imposed in this country for obscenity offenses. Merely for distributing seven erotic magazines and videotapes he believed at the time to be constitutionally protected, the ailing 73-year-old Petitioner has been sentenced to serve six years in prison — a probable life sentence — and has been fined some $200,000. In addition, the government has also confis- cated virtually everything he owns: the business he had built up over a thirty-year period of operating his bookstore, thea- ter, and video store chain. On the basis of a few materials the jury ultimately decided were obscene, the government has utterly destroyed the Petitioner’s life and livelihood. Whether analyzed as a “cruel and unusual punishment” or as an “excessive fine,”** RICO forfeiture as applied in this case is grossly disproportionate to the offense and therefore violates the Eighth Amendment. Moreover, on its face RICO revives a form of in personam forfeiture closely akin to the much- the court's holding that “to the extent section 1963 mandates forfeiture of more property than the Constitution will tolerate as punishment for an obscenity offense, the statute is unconstitutional on its face.” Jd. at 790. Unfortunately, RICO prescribes mandatory, total forfeitures upon convic- tion of two obscenity offenses, and contrary to the Ninth Circuit's sugges- tion is susceptible of no reasonable saving construction; it is simply unconstitutional on its face. *% For Eighth Amendment purposes, as noted below, RICO forfeitures are tantamount to fines, because they entail essentially the same sort of pecuniary punishment for a crime, distinguished only by the non-liquidity of certain assets. This is not to say that the forfeitures and monetary fines are equivalents for purposes of First Amendment analysis, because forfei- tures unlike fines impose a direct and inevitable restraint upon protected expression. 41 abused forfeiture of estate which the Framers clearly sought to abolish under the Eighth Amendment. The Eighth Amendment prohibits outrageous or barbaric forms of punishment, “excessive fines,” and punishments that are “cruel and unusual” because they are extremely dispropor- tionate to the particular offense. In Harmelin v. Michigan, ___ U.S.__, 111 S.Ct. 2680 (1991), seven members of this Court endorsed the holding of Solem v. Helm, 463 U.S. 277, 284 (1983), that the Eighth Amendment “prohibits not only bar- baric punishments, but also sentences that are disproportio- nate to the crime committed.”*4 This majority of the Court concluded that the Eighth Amendment at least forbids “extreme sentences that are ‘grossly disproportionate’ to the crime.” 111 S.Ct. at 2705. Although a majority in Harmelin agreed that reviewing courts should grant the trial court and the legislature substantial deference, “no penalty is per se constitutional,” as the Court noted in Solem, 463 U.S. at 290, citing Robinson v. California, 370 U.S. 660 (1962). See 111 S.Ct. at 2704-2705 (Kennedy, J., concurring). If divided in Harmelin as to the meaning of “cruel and unusual punishment,” the Court was apparently unanimous in the view that an “excessive fines” claim requires propor- tionality review. Justice Scalia, in his opinion for the Court joined by Chief Justice Rehnquist, concluded that the cruel and unusual punishment clause requires proportionality review only in capital cases, but apparently agreed with the dissenters’ observation that the Eighth Amendment prohibits disproportionate fines: “There is good reason to be concerned that fines, uniquely of all punishments, will be imposed in a measure out of accord with the penal goals of retri- bution and deterrence. Imprisonment, corporal Pun- ishment and even capital punishment cost a State money; fines are a source of revenue. As we have 34 See 111 S.Ct. at 2702-2709 (Kennedy, J., joined by O'Connor and Souter, JJ., concurring in part and concurring in the judgment); 111 S.Ct. at 2709-2719 (White, J., joined by Blackmun and Stevens, JJ., dissenting); 111 S.Ct. at 2719 (Marshall, J., dissenting). 4. recognized in the context of other constitutional provisions, it makes sense to scrutinize govern- mental action more closely when the State stands to benefit.” lll S.Ct. at 2693 n. 9. Although this Court “has never considered an application of the Excessive Fines Clause,” Browning-Ferris Industries of Vermont v. Kelco Disposal, Inc., 492 U.S. 257, 262 (1989), Justice Scalia indicated in Harmelin that penalties such as forfeitures which entail a built-in incentive for governmental abuse* are tantamount to fines for Eighth Amendment purposes: “We relied upon pre- cisely the lack of this incentive for abuse in holding that ‘punitive damages’ were not ‘fines’ within the meaning of the kighth Amendment,” in Browning-Ferris. 111 S.Ct. at 2693 n. 9. Indeed, Justice O'Connor specifically noted in Browning- Ferris that “[ijn current usage, the word ‘fine’ comprehends a forfeiture.” 492 U.S. at 297 (concurring and dissenting opin- ion). Thus a majority if not the unanimous Court in Harmelin would have agreed that the Eighth Amendment entails a guarantee of proportionality in cases involving blanket RICO forfeiture, either as a “cruel and unusual punishment,” or as an “excessive fine.” This Court need not resort to propor- tionality analysis, however, to reject RICO’s mandatory total *S Blanket forfeitures of the RICO variety certainly offer a tempting means for the government to fill its coffers. After RICO's forfeiture provisions were strengthened in 1984, “forfeiture cases doubled each year and the number of seizures grew by approximately 125 percent per year.” The past few years have witnessed an increasing governmental appetite for these funds: “In dollar terms, total forfeitures went from $27.2 million in fiscal year 1985 to over $580 million in fiscal year 1989." Concerning Oversight of the Asset Forfeiture Program, July 24, 1990: Before the Senate Committee on Governmental Affairs, 101st Cong., 2d Sess. 71, 72 (statement by Cary H. Copeland, Director, Executive Office for Asset Forfeiture), quoted in Craig W. Palm, RICO Forfeiture and the Eighth Amendment: When Is Everything Too Much’, 53 U. Pitt. L. Rev. 1, 4 (1991). 43 forfeitures as a form of punishment outlawed by the Fighth Amendment on historical grounds. At its core, the Kighth Amendment forbids punishments that by their very nature the Framers would have disapproved as barbarous or prone to prosecutorial abuse, or that have come to be viewed as such in accord. with our society's evolving standards. RICO forfeiture is not only grossly dis- proportionate in this particular case; it facially contravenes the Eighth Amendment because it revives the in personam forfeiture, a particularly objectionable, abuse-prone form of punishment which the Framers particularly sought to abolish. There is compelling historical and textual evidence that the Framers firmly intended to abolish the forfeiture of estate of which RICO forfeiture is the modern version. Before Magna Carta, conviction of a felony resulted in automatic forfeiture of all property. William W. Taylor III, The Problem of Proportionality in RICO Forfeitures, 65 Notre Dame L. Rev. 885, 893 (1990). These “forfeitures of estate” had been eliminated from English common law for any offense other than treason by the time of the Constitutional Convention, the American Framers went further and prohibited forfeiture of estate in the case of treason, under Art. III, sec. 3, clause 2. Id. Also, the First Congress by its Act of April 30, 1790 provided “That no conviction or judgment for any of the offenses aforesaid, shall work corruption of blood, or any forfeiture of estate.”*© Since then, in personam forfeitures have been so disfavored under American law that until RICO was enacted in 1970, there had been no known federal in personam forfeiture proceedings since the Civil War.*’ Thus “the fact that our society long ago rejected forfeiture of a defendant’s goods and chattels upon... con- viction . . . establishes that our society views forfeiture as % Actof April 30, 1790, ch. 9, § 24, 1 Stat. 112, 117 (1790) (codified at 18 U.S.C. § 3563 (1982)). 37 See James R. Maxeinor, Bane of American Forfeiture Law — Ban- ished At Last?, 62 Comell L. Rev. 768, 787 (1977). 44 crucl and unusual punishment unless the property is the pro- - ceeds of crime or related to crime in some clearly demonstra- ble way.” Taylor, supra, at 893, Quite apart from the historical evidence that this sort of punishment facially violates the Eighth Amendment, the blan- ket forfeiture of a multi-million dollar business for a few obscenity offenses is grossly disproportionate by any stan- dard. As punishment for an offense historically classified as a misdemeanor in most jurisdictions where it is a crime at all,™* the mandatory forfeiture order in this case is as inappropriate as the punishment this Court disapproved in Robinson vy. California, under a statute making addiction to narcotics a criminal offense. The 90-day jail term imposed for this status offense was “cruel and unusual” even though the jail time was “not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be consid- ered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” 370 U.S. at 667. In Solem v. Helm, 463 U.S. at 292, the Court noted that in assessing the gravity of the offense, the primary criteria are the harm suffered by the victim and the defendant's cul- pability. This multi-million dollar forfeiture of Petitioner's assets is especially disproportionate when viewed in light of these criteria, given that the offense involves no legal element of injury and requires negligible proof of scienter. Unlike many of the predicate crimes for RICO, obscenity is a minor, malum prohibitum offense. Unfortunately, however, RICO “does not limit itself to ‘serious criminality,’ and its penalties do not adjust qualitatively to the moral blameworthiness of the conduct. The number and variety of predicate offenses, which can include malum prohibitum as well as malum in se, might Suggest that the statute should provide some inter- nal way for modulating its sanctions, but the statute provides no such method.” Taylor, supra, at 887. *® See n. 39, infra. 45 First, in terms of the gravity of the offense, this Court has never discerned a compelling governmental interest to justify laws criminalizing obscenity, but has relied on the concept of obscenity as a proscribable (if difficult-to-define) category of speech which may be prohibited on the basis of “legitimate” interests. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, $7 (1973). In Osborne v. Ohio, 495 U.S. 103, 109-110 (1990), this Court reiterated, as it had concluded in Stanley v. Geor- gia, 394 U.S. 557 (1969), that the governmental interests in regulating adults’ access to “obscene” materials are “weak” and “paternalistic.” The Court again noted in Osborne that “|wje found a lack of empirical evidence” to support the state’s claim in Stanley that “exposure to obscene material might lead to deviant sexual behavior or crimes of sexual violence.” 495 U.S. at 109 n. 4. Additionally, both the legal definition of the obscenity offense and its social context render obscenity a victimless and relatively nonserious crime. The offense requires proof of nothing more than offering erotica for sale or rental to con- senting adults; this case typifies recent federal obscenity prosecutions in that it involves neither minors nor an uncon- senting adult audience. Moreover, the obscenity predicate is unique among the RICO offenses in that it requires virtually no mens rea: the scienter element for obscenity approaches a strict liability standard, requiring only knowledge of the material's sexual content rather than knowledge of its unpredictable legal status as obscenity. Even more so than the crime of issuing a worthless check in Solem v. Helm, obscenity is thus “ ‘one of the most passive felonies a person could commit,’ ” involving “ ‘neither violence nor threat of violence to any person,’ " and “ ‘viewed by society as among the less serious offenses.’ " 463 U.S. at 296, quoted in Harm- elin v. Michigan, 111 S.Ct. at 2705 (Kennedy, J., concurring). Underscoring the nonseriousness of the obscenity offense is the fact that the conduct for which Petitioner was convicted 46 under RICO is not even criminalized in many states.*® The immense popularity of indistinguishable videotapes and mag- azines further attests to the American adult populace’s sub- Stantial acceptance of sexually-explicit fare, and thus the lack of seriousness of the offense.*° Even without the additional First Amendment concerns this case raises, the federal courts have expressed serious reservations about the inherent proportionality problems RICO’s mandatory total forfeiture provisions create.*' In ” Five states - Alaska, Maine, New Mexico, South Dakota, and Vermont — do not have obscenity statutes. In addition, the supreme courts of both Oregon and Hawaii have held that criminal obscenity statutes inherently violate those states’ consututional guarantees of free speech or privacy. See State v. Kam, 748 P.2d 372 (Hawaii 1988); State v. Henry, 302 Or. 510, 732 P.2d 9 (Or. 1987). The issue is also currently pending before the Arizona Court of Appeals, in State v. Smith, Case No. i CA-CR 89-1514; the trial court in that case having held that the Arizona obscenity statute violated both the free speech and privacy provisions of the Arizona Constitution. #° As noted above with regard to the RICO Act's chilling effect, the immense popularity of adult videotapes indicates widespread acceptance of materials which could also be the subject of an obscenity prosecution. The marketing statistics reveal approximately 400 million rentals of adult videos per year. In 1989, video dealers reported that 47% of adult video rentals were to couples or women alone. See Marcia Pally, Sense and Censorship: The Vanity of Bonfires 67 (Freedom to Read Foundation 1991). *' Commentators have discussed the troublesome proportionality problems posed by RICO forfeitures in a wealth of law review literature, generally concluding that the RICO Act should be amended either to limit forfeitures to the actual proceeds of illegality, or to give the trial court discreuon as to the scope and amount of the forfeiture. See William W. Taylor, The Problem of Proportionality in RICO Forfeitures, 65 N.D.L. Rev. 885 (1990); Ian A. J. Pitz, Letting the Punishment Fit the Crime: Proportional Forfeiture Under Criminal RICO’s Source of Influence Provi- sion, 75 Minn. L. Rev. 1223 (1991); Vernon M. Winters, Criminal RICO Forfeitures and the Eighth Amendment: “Rough” Justice Is Not Enough, 14 Hast. Const. L.Q. 451 (1987); Kathleen F. Brickey, RICO Forfeitures As “Excessive Fines” Or “Cruel and Unusual Punishments,” 35 Vill. L. Rev. 47 United States v. Busher, 817 F.2d 1409, 1415 (9th Cir. 1987), Judge Kozinski for a unanimous panel held that where the defendant makes a prima facie showing that a forfeiture may be excessive, the trial court must make an Eighth Amendment proportionality inquiry, considering the total penalty imposed in light of the gravity of the offense.4? “Since RICO’s forfei- ture provision is quite literally without limitation,” the court emphasized, “it may well exceed constitutional bounds in any particular case.” 817 F.2d at 1414. “The court should be reluctant to order forfeiture of a defendant's entire interest in an enterprise that is essentially legitimate where he has com- mitted relatively minor RICO violations . . . resulting in relatively little illegal gain in proportion to its size and legitimate income.” /d. at 1415-1416. Subsequently, in Adult Video Association v. Barr, 960 F.2d 781 (9th Cir. 1992), the Ninth Circuit relied in part on Busher in resolving this very issue: whether blanket forfei- tures may be imposed in obscenity cases. Rejecting blanket forfeitures for RICO/wbscenity primarily on First Amendmeni grounds, the court also cited Busher repeatedly for the propo- sition that total forfeiture would be an inappropriate remedy for obscenity offenses in all but the most exceptional circum- stances. 960 F.2d at 790-791. As the Adult Video Association court concluded, punish- ing this victimless offense as severcly as murder for hire is entirely incongruous and at odds with the Eighth Amendment. 905 (1990); John L. Roberts, The Eighth Amendment As Applied To RICO Criminal Forfeiture, 10 W.N. Eng. L. Rev. 393 (1988), Craig W. Palm, RICO Forfeiture and the Eighth Amendment: When Is Everything Too Much?, 53 U. Pitt. L. Rev. 1 (1991). 42 Busher has become a cornerstone case applying Solem v. Helm proportionality analysis to criminal forfeitures. Three other circuits have adopted or cited with approval this Ninth Circuit rule that forfeitures must be examined for disproportionality under the Eighth Amendment. See United States v. Harris, 903 F.2d 770, 777-778 (10th Cir. 1990); United States v. Vriner, 921 F.2d 710, 711-712 (7th Cir. 1991); United States v. Angiulo, 897 F.2d 1169, 1211-1212 (1st Cir. 1990). See also United States v. Robinson, 721 F.Supp. 1541, 1543 (D.R.1. 1989). 4% In refusing to apply proportionality analysis or otherwise review this unprecedented punishment for obscenity under the kighth Amendment,** the court below has eviscerated that constitutional protection. Ostensibly deferring to the trial court's discretion, the court of appeals ignored the fact that under § 1963(a), the district court had no discretion to limit the RICO forfeiture. Its deference to Congress, which added obscenity to the list of RICO predicate offenses in haste and without considering the anomaly and constitutional problems involved, is misplaced. Ferris Alexander operated his businesses for some thirty years, in the course of which he distributed millions of media materials protected by the First Amendment. He has been abundantly punished by a six-year prison term and $200 000 in fines, for failing to anticipate that a jury would find seven of the thirteen charged items to be illegal rather than constitu- tionally protected. The total forfeiture of his multi-million dollar business goes far beyond any legitimate need for deterence or societal retribution for this minor offense. It is egregiously disproportionate, facially suspect as an in per- sonam forfeiture, and should be rejected as a constitutionally inappropriate remedy. - * * a The catastophic forfeiture imposed on Petitioner repre- sents perhaps the most egregious governmental suppression of expression in our nation’s history. Solely on the basis of seven speech violations, the government has utterly destroyed a twenty-five million dollar media business under the tal- ismanic labels of “racketeering” and “subsequent punish- ment.” If this Court should endorse this unprecedented takeover of a speech business, it will not only signal the immediate end 4. The Eighth Circuit in its opinion below followed the erroneous holding in United States v. Pryba, 900 F.2d at 757, that “Solem v. Helm does not require a proportionality review of any sentence less than life imprisonment without the possibility of parole.” See Cert. App. 25. 49 of the erotic entertainment industry, but, more importantly, will confer upon government new-found power and weapons with which to insure that only newspapers, broadcasters and other media businesses approved by any current administra- tion, will be permitted to exist. As stated by Chief Justice Hughes in Near, this “is the essence of censorship.” CONCLUSION The forfeiture judgments entered against Petitioner, except as they specifically relate to the seven items found obscene at trial and identifiable proceeds from the sale of those materials, constitute invalid direct prior restraints, are overbroad and represent cruel and unusual punishment. They and the portions of the RICO statute which made them man- datory should be stricken and the judgment of the Court of Appeals for the Eighth Circuit affirming them should be reversed. Dated: September 4, 1992 Respectfully submitted, Joun H. Westron* G. RANDALL GaARROU Caruy E. Crosson Criype F. Dewrrr Weston, Sarno, Garrou & Dewirr 433 N. Camden Drive, Suite 900 Beverly Hilis, California 90210 (310) $50-7460 Counsel for Petitioner *Counsel of Record APPENDIX la 18 U.S.C. § 1963. Criminal penalties (a) Whoever violates any provision of section 1962 of this chapter shall be fined under this title or imprisoned not more than 20 years (or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment), or both, and shall forfeit to the United States, irrespective of any provision of State law— (1) any interest the person has acquired or maintained in violation of section 1962; (2) any- (A) interest in; (B) security of; (C) claim against; or (D) property or contractual right of any kind affording a source of influence over; any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of in violation of section 1962; and (3) any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of section 1962. The court, in imposing sentence on such person shall order, in addition to any other sentence imposed pursuant to this sec- tion, that the person forfeit to the United States all property described in this subsection. In lieu of a fine otherwise autho- rized by this section, a defendant who derives profits or other proceeds from an offense may be fined not more than twice the gross profits or other proceeds. (b) Property subject to criminal forfeiture under this section includes-— (1) real property, including things growing on, affixed to, and found in land, and 2a (2) tangible and intangible personal property, including rights, privileges, interests, claims and Securities, (c) All right, tithe,-and interest in property described in subsection (a) vests in the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0257%3A07. Public record. Not legal advice.