High Court OKs Porno Confiscation

By Gersh, Debra | Editor & Publisher, August 14, 1993 | Go to article overview

High Court OKs Porno Confiscation


Gersh, Debra, Editor & Publisher


Lets government seize pornographer's inventory; minority condemns "censorship," free speech "abandonment"

The government did not violate the First Amendment when it seized and destroyed materials from an adult bookstore whose owner had been convicted on obscenity and racketeering charges, a divided U.S. Supreme Court ruled.

In a blistering dissent, Justice Anthony Kennedy called the decision "a grave repudiation of First Amendment principles."

The case began in 1989, when Ferris J. Alexander - who sold pornographic materials through 13 retail stores he owned - was convicted of 17 "substantive obscenity offenses" and of three offenses under the federal Racketeer Influenced and Corrupt Organizations Act (RICO).

The U.S. District Court for the District of Minnesota sentenced Alexander to six years in prison and fined him $100,000, and ordered him to pay the costs of prosecution, incarceration and supervised release.

In addition, under the RICO statute, the government sought forfeiture of Alexander's businesses, real estate and proceeds gained from racketeering.

The court ordered Alexander to forfeit his wholesale and retail businesses and nearly $9 million obtained through them.

The appeals court ruled that the sentence did not constitute a prior restraint on speech and called the forfeiture "a criminal penalty imposed following a conviction for conducting an enterprise engaged in racketeering activities."

Writing for the 5-4 Supreme Court majority, Chief Justice William H. Rehnquist argued that the RICO forfeiture does not constitute unconstitutional prior restraint on speech because it "does not forbid petitioner from engaging in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities. It only deprives him of specific assets that were found to be related to his previous racketeering violations."

Rehnquist - who was joined by Justices Byron R. White, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas - pointed out that the forfeiture order "imposes no legal impediment to - no prior restraint on - petitioner's ability to engage in any expressive activity he chooses.

"He is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials; he just cannot finance these enterprises with assets derived from his prior racketeering offenses," Rehnquist said.

He also noted that RICO "is oblivious to the expressive or non-expressive nature of the assets forfeited.... Indeed, a contrary scheme would be disastrous from a policy standpoint, enabling racketeers to evade forfeiture by investing the proceeds of their crimes in businesses engaging in expressive activity."

The majority rejected Alexander's arguments that the forfeiture was overboard and would have a chilling effect on free expression. …

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