Alexander v. United States

PETITIONER: Ferris Alexander
RESPONDENT: United States
LOCATION: City of Minneapolis

DOCKET NO.: 91-1526
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 509 US 544 (1993)
ARGUED: Jan 12, 1993
DECIDED: Jun 28, 1993

John H. Weston - on behalf of the Petitioner
Kenneth W. Starr - on behalf of the Respondent

Facts of the case

Ferris Alexander was the owner of a chain of stores and theaters in Minnesota that distributed sexually explicit media. He was charged with violating federal obscenity laws and the Racketeer Influenced and Corrupt Organizations Act (RICO). The federal District Court in Minnesota found him guilty of both charges. The court ordered him to forfeit his businesses, sentenced him to a six-year prison term, and fined him $100,000.

Alexander appealed, claiming that the confiscation of his stores for his dealings in obscene material amounted to 'prior restraint' on his subsequent distribution of adult materials, and therefore violated his First Amendment rights. He also claimed that the seizure of his business violated his Eighth Amendment protection against excessive fines. The United States Court of Appeals for the Eighth Circuit affirmed the District Court's judgment on the First Amendment claim, and declined to review the Eighth Amendment claim on the ground that no sentence less severe than life imprisonment without parole could justify an Eighth Amendment review.


  1. Does property forfeiture under RICO as punishment for the distribution of obscene materials constitute 'prior restraint' on speech in violation of the First Amendment?

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

Media for Alexander v. United States

Audio Transcription for Oral Argument - January 12, 1993 in Alexander v. United States

William H. Rehnquist:

We'll hear argument next in No. 91-1526, Ferris J. Alexander v. the United States.

Mr. Weston, you may proceed.

John H. Weston:

Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court:

Congress designed RICO to eliminate any business which has committed two or more predicate RICO offenses.

Such a business then becomes illegal and therefore forfeitable.

Under the First Amendment, the presumption is that no matter how many speech violations a business may commit, it retains its protected status because all unlitigated materials are presumed to be constitutionally protected.

This case then presents the collision between RICO and the First Amendment made inevitable by the 1984 congressional amendment adding obscenity to the predicate list of RICO offenses.

William H. Rehnquist:

Well, is... what... which of our cases do you rely on, Mr. Weston, for the proposition that when obscenity is charged, it is presumed that it is not obscene?

I take it that's what you're saying.

John H. Weston:

The mere fact of an accusation, Mr. Chief... if I understand the Court's question, the mere fact of an accusation does not serve to deprive the material that is being challenged of its protected status until such time as a court ultimately and finally determines that it is not obscene.

That is certainly the--

William H. Rehnquist:

Well, is that just a burden of proof proposition?

You're saying that anyone is... if it's a criminal prosecution, you're presumed innocent until you're found guilty.

John H. Weston:

--Not at all, Your Honor.

With the... with respect to the materials alleged to be obscene, a host of cases, including all of the so-called search and seizure cases, Marcus and Quantity of Books, Fort Wayne Books, and a host of others, have all stood for the proposition that even where material is being accused by government of being obscene until such time as it is finally determined to be obscene, it may not be removed from the public totally because to do so would constitute a total prior restraint.

And, in fact, in Heller, this Court went so far in 1973 as to note that where a single motion picture film was available to an exhibitor seized by government as part of an obscenity prosecution, it was the duty of government to make at least a copy of that film available or to permit the defendant to have a copy of the film so that the film might continue to be exhibited until such time as it was ultimately determined to be obscene.

William H. Rehnquist:


That established that you can't seize it under those conditions.

I don't think it established the proposition that you're talking about.

John H. Weston:

Well, with all respect, I see no difference with respect to that, Your Honor, that if the material is presumed to be protected until it is ultimately deprived judicially of its protected status, under that circumstance, it retains the presumption of protectedness and simply may not be removed.

Our point, however, is with respect to this case, that other than the seven items determined to be obscene by the jury in this case, all of the other material that was seized and destroyed by the Government pursuant to the forfeiture order was neither alleged nor proven to be obscene.

And the Government is quite candid in that the nature of the material is totally irrelevant.

It might have been sexually oriented.

It might have been erotic, but it just might as well have been a book on how to improve one's bridge game or build a garden or a videotape dealing with Bambi or Aladdin.

The point is--

Harry A. Blackmun:

Do I understand that all this material was burned?

John H. Weston:

--Yes, Your Honor.

It is our understanding that all of the hundreds of thousands of books, magazines, videotapes, and films seized from the... representing the entirety of petitioner's inventory, without any consideration or allegation or determination of the protected or unprotected status of this material, was seized by the Government, carted away, and burned in an incinerator by the Federal marshal.

Antonin Scalia:

These were also called sexually oriented materials or not?