Alexander v. United States

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

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

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

ADVOCATES:
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.

Question

  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’?

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:

Yes.

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?

Antonin Scalia:

I mean–

John H. Weston:

Not… the record–

Antonin Scalia:

–The Last of the Mohicans?

What are we talking about here?

John H. Weston:

–The record does not reflect that, Your Honor.

There were certainly some items–

Antonin Scalia:

What was the business in question?

John H. Weston:

–The businesses represented a number of different businesses.

They were video stores, adult bookstores, adult theaters.

Antonin Scalia:

What… adult bookstores.

What kind of video?

Were they adult video stores, so-called?

John H. Weston:

Much was probably adult video, Justice Scalia.

The entirety of it was not, but from the First Amendment perspective, none of this material… none of the status… none of the nature or determination or character of the seized material was alleged.

And clearly under this Court’s consistent decisions, the first Amendment requires judicial blindness to the nature of the material that was seized without any judicial focus whatsoever.

Antonin Scalia:

As far as the seizure is concerned, but–

John H. Weston:

And the destruction.

–there was an objection here–

John H. Weston:

The destruction–

Antonin Scalia:

–Once it’s the Government’s property… I suppose if the Government appropriately took control of it and possession of it and ownership of it, I suppose the Government can do with it what it wants, and the objection to whether the Government ought to have burned it or not probably should depend on what its character is.

Maybe the Government didn’t want to be in the pornography business.

John H. Weston:

–Well, that may be, and I understand that perspective, although with–

Antonin Scalia:

Your objection is to the seizure of it and the… placing the ownership in the Government, not to what the Government does with what it owns I assume.

John H. Weston:

–Absolutely, Your Honor, except to the extent that the Government’s destruction of the material, certainly at a time of enormous national debt, when all proceeds from sale of seized material would certainly go to reduce that debt, bespeaks a governmental purpose to remove protected or presumptively protected materials from public circulation in a way that certainly ought to arise the interest in anti… in constitutional protection of both this Court, as well as all of–

Sandra Day O’Connor:

Mr. Weston, would you be making any objection if what had been done was simply to require the sale or disposition of all the presumptively protected materials and to turn the proceeds over to the Government?

John H. Weston:

–That’s a very tricky and interesting question, Justice O’Connor, and the answer to that is yes.

And frankly, the Government–

Sandra Day O’Connor:

Yes, you would be making–

John H. Weston:

–Yes, we would make the–

Sandra Day O’Connor:

–the same First Amendment claim?

John H. Weston:

–Yes, Your Honor, and the reason for it is well demonstrated by what happened in this case because the moment the Government acquires title to the materials, it then has the absolute determination as to whether it’s going to leave the materials in public circulation or whether it isn’t.

Sandra Day O’Connor:

Well, suppose it doesn’t take title to the materials.

It instructs the… your client to dispose of it and turn the money over to the Government.

John H. Weston:

In that case, an aspect of the prior restraint doctrine would be satisfied or would be finessed, in a sense, in that the public would not necessarily be deprived of the materials.

But it certainly doesn’t deal with the right of the disseminator to be able, in an untrammeled way, to continue to disseminate presumptively protected materials–

Sandra Day O’Connor:

Well, for goodness sake.

Suppose the Government decided because of the RICO violations to seek a prison sentence of this person.

John H. Weston:

–But in that–

Sandra Day O’Connor:

I guess he could be imprisoned for a criminal violation of RICO.

John H. Weston:

–No question, Your Honor, but the–

Sandra Day O’Connor:

And that might discourage his business activities for a while.

John H. Weston:

–Discourage, but not necessarily or inevitably or immediately in every case eliminate them.

And that really becomes the critical difference.

Sandra Day O’Connor:

Oh, you assume that the business could continue to be operated while the person is in prison?

John H. Weston:

Yes, absolutely, and particularly in the context of today’s modern business world.

Corporations conduct most businesses.

If the president of a corporation is placed in jail, the corporation continues to function, and the business continues to disseminate presumptively protected materials.

Sadly, we have seen all too often in recent years the presidents of major corporations incarcerated and business goes on in the same way, although hopefully in a more law-abiding fashion.

Antonin Scalia:

In fact, that happened here, didn’t it?

I mean, your client was in prison.

John H. Weston:

Oh, no, absolutely not, Justice Scalia.

He was not in prison?

John H. Weston:

He was in prison.

Antonin Scalia:

But the business did not continue to operate while he was?

John H. Weston:

The business was totally… in fact, that’s exactly the point.

What the Government did here was to completely eliminate the business and completely impose the total prior restraint because the forfeiture order–

Antonin Scalia:

I’m not talking about this conviction.

I’m talking about prior convictions.

My understanding was that there had been prior convictions on obscenity charges.

John H. Weston:

–The predicate RICO acts did not include or allege any prior conviction.

John H. Weston:

The record does not reflect that there was a prior conviction.

As an officer of the Court, I advise, Your Honor, that in 1969 or 1970 there was an obscenity conviction of Ferris Alexander, followed some years later by an acquittal, followed by almost 20 years of nonprosecution at either the State or the Federal level, the point being that under this statute, which is what is obviously before the Court, what was done here was on the basis solely of jury determination that seven items were unprotected.

Literally hundreds of thousands of books, films, magazines–

William H. Rehnquist:

Mr. Weston.

John H. Weston:

–Yes, Mr. Chief Justice.

William H. Rehnquist:

Is that the actual correct comparison?

You say seven items were unprotected, and then hundreds of thousands were not determined.

But wasn’t there more than one copy of each of those seven items?

John H. Weston:

The indictment alleges, Your Honor, that with respect to some of the materials, there were multiple copies received in interstate commerce by my client in Minnesota.

The substantive provisions, the 1466 counts which reference possession with intent to sale or sale, do not indicate whether there were more than one copy.

They are silent with respect to that.

William H. Rehnquist:

Did the record of the trial… I mean, because your… when you say hundreds of thousands, you’re talking about–

John H. Weston:

Different titles, Your Honor.

Different titles.

William H. Rehnquist:

–Hundreds of thousands of different titles.

John H. Weston:

Hundreds of thousands of different titles is what we believe to be the case with respect to videotapes, films, magazines, individual media items.

And I’m trying to–

Yes.

John H. Weston:

–Because I think I understand the Court’s question.

I am not saying a million copies of three titles.

We are saying scores of thousands, perhaps hundreds of thousands.

Perhaps I engaged in some hyperbole for which I apologize, but scores of thousands, many thousands of different titles were seized and destroyed, all of which had neither been alleged to be obscene or determined to be obscene, coupled with–

William H. Rehnquist:

Is there some transcript or record that you can refer to that establishes this?

John H. Weston:

–The… yes, there are… there is a transcript.

Offhand, I confess, Mr.–

William H. Rehnquist:

But someone got up and testified that this… there were scores of thousands or something like that?

John H. Weston:

–Let me suggest this and perhaps this will assist the Court.

William H. Rehnquist:

Well, did… I’m asking did someone–

John H. Weston:

Yes.

There was… the trial court in its sentencing order noted it, and more importantly… and I’m sure the Government would not contest this, but at the forfeiture hearing, the Government put into evidence in an attempt and, we respectfully submit, a constitutionally irrelevant attempt… but to somehow characterize what the nature of the business was… at least 400 different, separate videotapes, none of which had been alleged to be obscene, and perhaps 20 or 30 magazines and books and so forth.

John H. Weston:

So, whether it be 100,000 different titles or 50,000 or 10,000 different titles, the number of different, unlitigated titles was extraordinary.

But let us not stop there simply with the media items because the media items, large as they were, whatever the number was, are an extraordinary minimal portion of the terrible prior restraint that was imposed here because 10 media businesses, the equipment necessary to support the dissemination, plus the businesses themselves, were taken over by the Government and closed in a geometric fashion, totally therefore eliminating not only the dissemination of all materials that presently existed in the universe, but all those which might have been created in the future which could have been disseminated–

Antonin Scalia:

–Mr. Weston, as I understand it, you would have had… you say you would not have any objection to that under the First Amendment if the predicate offenses had not been speech offenses.

John H. Weston:

–That is correct, Your Honor.

This Court in Arcara made very, very clear that where the predicate conduct has no communicative quality, whether it be conduct with some… as Justice O’Connor–

Antonin Scalia:

You can take away all the media businesses.

John H. Weston:

–In Arcara, that was the holding of this Court.

Antonin Scalia:

Right, okay.

And similarly, as I understand it, you would have no objection if it was a speech offense for the predicate RICO offense, and the punishment, no matter how severe, life imprisonment, was not the taking away of media businesses or of media documents, books, and so forth.

John H. Weston:

I understand.

Right?

John H. Weston:

No, Your Honor.

No?

John H. Weston:

There would be no per se description of that penalty as being a per se prior restraint.

As in the potential of a high fine, the potential of a jail sentence may or may not in any case constitute a First Amendment problem.

Antonin Scalia:

Well, you see, I don’t see how… what you’re doing is combining two positions, neither one of which alone would be… would violate the First Amendment on your admission.

And you say that somehow when you combine the two, although they don’t reinforce each other as far as I can see, it is a First Amendment objection.

There are two problems involved.

One is the chill of the speech.

And the chill could be affected just as much by imprisonment as by taking away the person’s business.

Right?

John H. Weston:

But we’re not… in this argument, Your Honor, although this Court has frequently noted that one of the vices of a prior restraint is the chill… I mean, in the Pittsburgh Glass Company case cited by the Government, that’s exactly what the concept is.

But the point that we’re making primarily here is that it is the prior restraint which invalidates in every case the RICO sanction as… the RICO forfeiture sanction as applied to speech predicates because in every case, speech will inevitably and immediately be suppressed, the taking of the books, the closing of the store, and so forth, whereas–

Antonin Scalia:

Speech will inevitably be suppressed whenever you go after anybody in the media business under RICO, whether it’s for a speech offense or for any other offense.

Right?

John H. Weston:

–I see the Court’s point.

Yes.

John H. Weston:

But the classical difference is, as pointed out by Near and in a host of subsequent cases, there are special rules, special concerns, that we have for the First Amendment, and the nature of the injunction that was issued in Near would have caused no problem if, as in Arcara, the predicate or triggering conduct had had nothing to do with speech.

Why was it that this Court… forgive the rhetorical question, but this Court struggled and wrestled with the problem in Arcara because, in fact, a bookstore was enjoined.

The ultimate conclusion was that where the triggering conduct either had no speech at all or had no communicative content or no expressive conduct which was involved in the sanction, that it simply was not a prior restraint.

John H. Weston:

But the obvious implication, if not explication, in both Chief Justice Burger’s opinion and in Justice O’Connor’s concurring opinion is that where the triggering activity was either speech or had communicative conduct or, as Justice O’Connor noted, where a nonspeech triggering statute had been used as a pretext to impose censorship in the interest of decency, then there would have to be a First Amendment analysis.

And in this case, the only underlying conduct, the only triggering or predicate conduct is unquestionably speech.

We are out of Arcara.

We are back in Near.

We are back in Kingsley.

We are back in Marcus and Quantity, and the First Amendment analysis unquestionably applies.

And what is also clear in this case is that there was no pretext for the use of RICO to close down this business.

That was what the statute was designed to do, to eliminate a speech business because an… in this case… an isolated number of its titles had been determined to be obscene.

And I ask the Court to consider–

Antonin Scalia:

What about fraud convictions?

Are they speech convictions?

John H. Weston:

–Inherently–

Antonin Scalia:

Inherently you said, but–

John H. Weston:

–No.

Forgive me.

I was trying to analyze it.

One must look at the nature of the conduct.

Fraud will not necessarily involve a speech situation.

Antonin Scalia:

–You have to make a representation, don’t you?

John H. Weston:

Well, we’ll have to see what the underlying conduct is and then to try to examine it.

The–

Antonin Scalia:

It’s always performed by speech, by communication.

Now, that speech is unprotected to the extent that it commits a fraud, and the speech in this case is unprotected to the extent that it becomes obscenity.

John H. Weston:

–That–

Antonin Scalia:

I’m hesitant to say that no media business can be–

John H. Weston:

–Where the underlying–

Antonin Scalia:

–taken for fraud.

John H. Weston:

–And we are not asserting that.

And, for example, there may well be a situation in a copyright infringement situation where a print shop prints copyright violational materials, where the underlying concern is not the expression, as in the fraud case, but what the concern is is the content of the material.

This statute is content based.

John H. Weston:

It is designed to prohibit and punish content, communicative content, of the expression in a way that either the fraud or some other print type thefts or property… interferences with… are not.

In this situation, this is speech, and this is exactly what the situation was in Near where the contents of the Near publication were, although denominated a public nuisance, analyzed and determined that it was the expressive content of the speech which is what gave it… although in and of itself, each item of speech, each of the nine issues of The Saturday Press over the 3 month period were themselves deemed to be outside constitutional protection, nonetheless, that did not permit Government under any circumstances to be prospectively able to interfere with any other kind of speech.

David H. Souter:

But you don’t claim that this case is governed by Near, do you?

John H. Weston:

Yes, Justice Souter, we find that Near is–

David H. Souter:

Well, in the Near case, any further publication by the publisher of The Saturday Press was enjoined, and in fact, no one else was publishing The Saturday Press; whereas, in this case, we have no reason to believe that there aren’t… that the publishers of the material seized aren’t going to go right on publishing it and other distributors are going to go right on distributing it.

And we have no reason to believe that when this individual gets out of prison, he can’t go right on doing those things too.

So, I don’t see how Near covers this situation.

John H. Weston:

–But there was no suggestion in Near that Mr. Near’s brother or his neighbor or someone who shared his virulent anti-semitic passion couldn’t pick up the publication and continue to publish it in exactly the same way.

David H. Souter:

Well, Near didn’t decide that one way or the other, did it?

John H. Weston:

Near was silent with respect to it.

That’s right.

John H. Weston:

But the… but with all–

David H. Souter:

Your… maybe I misunderstood your argument.

I thought you were analogizing your client to the publisher in Near, and all I’m saying is that he does not bear a very close analogy because, A, he is not enjoined from further distribution and, B, no one else is enjoined from distribution.

John H. Weston:

–The aspect of the injunction… merely because an injunction was issued in the case is certainly, with respect, not dispositive of the nature of what the fundamental Near holding is.

By analyzing the operation and effect of the sanction in the case, as we are directed by Near to do, Near was prevented from dealing with future unlitigated publication.

There was a speech sanction that was imposed on Near from going forward and disseminating presumptively protected material in the future, and the Court said no, you… that is an impermissible restraint.

In Keith… in Citizens for a Better Austin v. Keith, the injunction, although it was an injunction, was even broader.

The enjoined party could disseminate nothing prospectively.

The point is in this case unlitigated, undetermined speech… presumptively protected speech was seized and destroyed.

An analogy to Near’s incapacity to be able to go forward and continue to publish what it was that he determined that he wanted to publish, so too Ferris Alexander was deprived the opportunity at the 10 locations to be able to disseminate the material which he, in his editorial judgment, chose to disseminate.

Sandra Day O’Connor:

Well, what if the offense were the failure to pay taxes, as was also alleged here I guess?

Can the Government seize all the inventory and dispose of it for the failure to pay the taxes without invoking the concerns of a prior restraint?

John H. Weston:

In this case, Your Honor, of course… and I say this for the record, that none of the RICO predicate conduct or any of the forfeiture was attributable to the tax case.

But in response to the Court’s specific question, a civil judgment or a tax judgment may certainly be satisfied from whatever assets there are to be satisfied.

But then, once again, what triggers the sanction is not speech, and the Constitution, just as in Arcara, does not say that no speech business may be subject to regulation in the same way that zoning or fire or safety and so forth would be.

And just as in any situation where a civil judgment might be satisfied from a completely unrelated situation… the owner of a bookstore hit a… in an automobile killed somebody, and certainly a civil judgment could be used to satisfy that.

But the point is that from the jurisprudence with this Court dealing with First Amendment matters, unlitigated, presumptively protected speech may not be interdicted, destroyed, taken out of circulation simply because other media materials have been determined to be obscene.

And if–

John Paul Stevens:

Mr. Weston, can I ask you a question about your theory?

John Paul Stevens:

I understand what you’re saying about speech both causing it and being what’s forfeited.

What if what was forfeited was… say American Airlines showed a couple of obscene movies on a flight.

Would you say that that would justify forfeiture of the whole airline?

John H. Weston:

–No, Justice Stevens.

John Paul Stevens:

But under the statute would it?

I’m curious about how the statute operates.

Here his entire business was forfeited because a half a dozen or so obscene items were seized.

Would the statute operate in the same way in my hypothetical?

John H. Weston:

Absolutely.

For two or more–

John Paul Stevens:

But you’re saying that would not violate any… that would be perfectly constitutional to take over the airline–

John H. Weston:

–No, we’re not–

John Paul Stevens:

–because they’re not engaged in the speech business.

John H. Weston:

–No, Your Honor, we’re not saying that, and for two reasons.

One, because it may well be… and I would assume in the circumstance that you suggested… that taking over the entirety of the airline would certainly affect a prior restraint on the airline’s ability to be able to exhibit other unlitigated motion picture films.

But in this context–

John Paul Stevens:

It’s only for that reason, not because of the magnitude of the seizure.

You don’t rely at all on the magnitude of what–

John H. Weston:

–Not the–

John Paul Stevens:

–was seized in relation to the–

John H. Weston:

–Not from the–

John Paul Stevens:

–small amount of what was–

John H. Weston:

–Excuse me.

–the violation.

John H. Weston:

Not from the First Amendment perspective.

Of course, the Eighth Amendment might well speak to that, as we have raised in our–

Byron R. White:

Mr. Weston, I take it you don’t claim that the RICO statute did not authorize these seizures.

John H. Weston:

–Not only did it not… not only do we not claim that, Justice White, we affirmatively represent and argue that this judgment fairly and accurately did exactly what the RICO statute directed trial judges to do under the circumstance.

Byron R. White:

So, you think the provisions of… you don’t think you can find any basis for objecting to this forfeiture in the provisions of the statute authorizing the forfeiture.

John H. Weston:

That is–

Byron R. White:

You don’t think that this forfeiture that the Government insisted on was outside the provisions of the statute.

John H. Weston:

–Given–

Byron R. White:

I mean, just as a statutory construction problem.

John H. Weston:

–Given the broad potential for forfeiture under 19… section 1963, what the Court did was commanded and directed by the statute.

Trial counsel ably argued that the forfeiture should be limited to the obscene materials and the proceeds specifically attributable, and under the grandiloquent phrase from Congress and from judicial decisions that the purpose of RICO is to extirpate the entire business root and branch–

John Paul Stevens:

But it’s the entire business… any contribution of the business, no matter how trivial, is the proceeds of a predicate offense?

John H. Weston:

–Under settled… under existing law that appears to be unquestioned as Judge Kozinski in the Ninth Circuit in U.S. v. Busher railed against in that case.

I would just like to conclude, if I may, Justice Stevens, with the second portion of the question that you had asked and that was this, that in the circumstance where the entirety of American Airlines might be seized because of the two or three films.

Under that circumstance, we would suggest that one would look to the motive underlying the statute in terms of its speech suppressive characteristics that the statute had been, whether it be, in that circumstance, to get at speech or more specifically in our own client’s situation where it had been devised to get to speech.

We would suggest that the motive ought to be examined even though we well recognize–

John Paul Stevens:

Now, is that as a constitutional matter or as a statutory matter?

John H. Weston:

–As a constitutional matter–

No.

John H. Weston:

–in terms of dealing with–

John Paul Stevens:

But under the statute, there… the prosecutor would have the same duty to seize the entire airline that he has here and seize the entire business.

John H. Weston:

–Absolutely, Justice Stevens.

No question.

Sandra Day O’Connor:

I would have thought you might make an Eighth Amendment argument somewhere along the line in response to these inquiries.

John H. Weston:

Thank you, Justice O’Connor.

As I thought I had mentioned to Justice White… or Justice Stevens, that there certainly would be an Eighth Amendment issue, whether it be under the excessive fines provision or the cruel and unusual punishment provision, that the confiscation of this business with the notion of forfeiture being tantamount to fines, as you observed recently, for Eighth Amendment purposes would constitute a grossly disproportionate penalty in connection with the underlying offense.

And this would be whether the underlying offense was analyzed under the Solem majority test or under Justice Kennedy’s test as articulated in Harmelin.

I mean, this is the most passive kind of felony.

This is the sort of conduct which in Osborne this Court noted, in terms of the obscenity laws, were motivated by essentially a paternalistic interest in the subject matter.

It is the sort of offense which, again applying Justice Kennedy’s form of analysis, is not the sort of thing which generates parallel or ancillary offenses and where there’s no national consensus and connection with whether obscenity or erotic materials should be prosecuted.

Seven States have no obscenity laws, and there is certainly minimal or relatively minimal Federal enforcement in terms of numbers of places around the country of this particular–

Byron R. White:

I take it you wouldn’t be here making this argument if your client sold a reasonable amount of… well, an unreasonable amount of cocaine in his bookstores along with books.

John H. Weston:

–Absolutely… you’re, of course, right, absolutely right, Justice White, that if there had been… and our argument is–

Well–

John H. Weston:

–as in this case, that the sole predicate offense was speech, that if our client had been, as part of the predicate acts, indicted for the sale of cocaine, our argument is over because then–

Byron R. White:

–Even though his entire business was seized.

John H. Weston:

–Absolutely.

We’re constrained to–

Byron R. White:

Well, wouldn’t you still have an Eighth Amendment argument?

John H. Weston:

–Yes.

There may well be an Eighth Amendment argument with respect to that, but in terms… forgive me, Justice White.

I thought you were addressing–

No.

That’s all right.

John H. Weston:

–the First Amendment question exclusively.

I see your red light is on.

John H. Weston:

Thank you.

William H. Rehnquist:

Thank you, Mr. Weston.

General Starr, we’ll hear from you.

Kenneth W. Starr:

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

Let me begin where we left off in this discussion.

As I see it, until the very end of his argument, Mr. Weston did not seem to be calling into question the basic proposition that this Court established, after hearing Mr. Weston’s arguments to the contrary, in Fort Wayne Books that obscenity is not speech within the meaning of the First Amendment and that it can serve as a predicate offense for a RICO statute.

Secondly, he has now–

John Paul Stevens:

Do you think it’s entirely invisible to the First Amendment–

Kenneth W. Starr:

–It is–

John Paul Stevens:

–after R.A.V.?

Kenneth W. Starr:

–To the extent that a final determination has been made that it is obscene, the First Amendment does not care and thus, in that sense, it is invisible once it has been… in terms of First Amendment values, yes.

It is invisible to the First Amendment.

John Paul Stevens:

Do you think that’s consistent with the holding in R.A.V.?

Kenneth W. Starr:

I don’t think it’s inconsistent with the holding in R.A.V. because R.A.V. did not seem to call into question… or R.A.V. was obviously concerned with content basis.

And I don’t want to delay unduly in rearguing what may be a very intriguing dialogue within the Court about R.A.V., and I know the Court has now taken the Wisconsin case.

The basic holding in R.A.V…. and it was a unanimous holding… was that that ordinance had to fall because it was content based.

This Court has held that as serious as content based kinds of distinctions are, obscenity is a different matter, and obscenity is not protected within the meaning of the First Amendment.

Now, the second aspect… and I think this is an important part of the argument… that is not being contested is Arcara, that if in fact there is a, as he would say, nonspeech predicate, there can, in fact, be forfeiture of what he considers First Amendment expressive materials.

What I think we have seen today is, first of all, an assault on Fort Wayne Books without his having said in the petition that he wants to see Fort Wayne Books overruled.

Accepting the proposition that Fort Wayne Books and the value of stare decisis is still good constitutional law and taking that with Arcara, we get exactly where Justice Scalia was suggesting that we get in this case, that we somehow, combining those two holdings, end up with a violation of the First Amendment.

Kenneth W. Starr:

That ends up being quite a remarkable proposition that is unfounded in this Court’s First Amendment jurisprudence.

What really seems to be at issue here is the sense of disproportionality, that the defendant, the petitioner, stands convicted of seven obscenity offenses, and yet this entire business enterprise, including what he considers presumptively expressive and protected materials, has been forfeited to the Government.

Sandra Day O’Connor:

Is there anything in the record to show us the extent of the forfeiture or what was taken?

Kenneth W. Starr:

Yes.

I refer the Court to the petition appendix and the thorough opinions by Judge Rosenbaum where he goes through a very careful analysis of 1963(a)(1), (a)(2), (a)(3), and showing what parts of the business proceeds, interests, corporations, and so forth are being forfeited and why each is being forfeited appropriately under the statute.

And that gets, by the way, to part of the response I think to this sort of intuitive sense that can be put most comfortably I think in Eighth Amendment terms that there is wild disproportionality at work here.

That is not so for the following reasons, and if I may, let me share with you a bit of the record in the case, not what the film–

William H. Rehnquist:

Why don’t you just tell us about the record, rather than share it with us.

Kenneth W. Starr:

–The record tells us, Mr. Chief Justice, that there were essentially here 10 businesses and adult theaters that were engaged in the sale of literature and movies that all partook of the same nature.

They were adult entertainment materials.

That’s what this was all about.

The Government offered to introduce into evidence not only the obscene materials, and at the jury trial the first film that was shown, She Male Encounters, 80 minutes was displayed to the jury.

Additional films were displayed to the jury.

The Government, anticipating the very kind of argument that was eventually made at the court of appeals and in this Court, said there are others, and we are prepared to introduce those.

An objection was interposed on relevancy grounds.

In addition, at the forfeiture phase of the trial, there was, as my colleague on the other side has indicated, introduced to the court 400 plus videos and magazines that the district court at page 153 of the petition appendix specifically found are of the… without making the same kind of elaborate review of every minute of the movie or every aspect of the book, were of the same nature.

But ultimately what the court also had before it and what the jury had before it was an enterprise that was rife with criminality: secreted assets, under reporting of income–

John Paul Stevens:

Mr. Starr, is that part of your case?

Kenneth W. Starr:

–Yes, it is.

It’s not–

John Paul Stevens:

That was necessary to prove that?

Kenneth W. Starr:

–It’s not necessary, but it’s part of my case in the sense that if you read the indictment, the indictment alleged various tax offenses and fraud–

John Paul Stevens:

Is it not correct that the obscenity offenses were the only predicate offense?

Kenneth W. Starr:

–Absolutely, and I don’t want to mislead the Court–

John Paul Stevens:

Then why do we talk about the other offense?

Let’s assume he’s a real bad person for all these other reasons.

Kenneth W. Starr:

–Because it tells us about the nature of this enterprise and the criminality of the enterprise in–

John Paul Stevens:

But is that… tell me this because I really am curious because the statute is a difficult statute to understand.

Do you agree with your opponent with respect to his answer to my hypothetical about American Airlines, that you would have the authority under the statute to forfeit the entire airline if they showed three or four obscene movies in a flight from here to California?

Kenneth W. Starr:

–Absolutely not.

Kenneth W. Starr:

Under… and the reason is the statute, 1962, talks about a pattern of racketeering.

This Court in HJ, Inc., this Court in Sedima–

John Paul Stevens:

Well, but you had a pattern of racketeering with six obscenity offenses.

That’s enough, isn’t it?

Kenneth W. Starr:

–But we were–

John Paul Stevens:

Under the statute I mean.

Kenneth W. Starr:

–But we were prepared to show much more–

John Paul Stevens:

No.

I know you could have proved a lot more, but is it not true that under the statute, all you had to prove was six obscenity offenses to get your pattern of racketeering–

Kenneth W. Starr:

–To show that, in fact, there was a pattern of racketeering, and then the other elements of the enterprise, that the enterprise was used in the offense.

That is to say, to take your American Airlines–

–Right.

Kenneth W. Starr:

–If a division manager or if the president himself of American Airlines, if Mr. Crandall orders the showing of this, it doesn’t mean American Airlines is going to be forfeited.

He may… it is in personam.

This operates in personam.

If it’s corporate policy, yes.

I would have to say, Justice Stevens, that there is the possibility that we would have to analyze the corporation’s liability.

But recall–

John Paul Stevens:

Well, it helped sell a few tickets to the… from here to California.

Isn’t that enough?

Isn’t that all you need under the statute?

Kenneth W. Starr:

–Not at all in terms of corporate… I’m trying to draw a distinction between what I understand you to be concerned about, which is forfeiture by American–

John Paul Stevens:

I’m concerned about the disproportionately problem–

Kenneth W. Starr:

–Exactly, forfeiture of an entire airline on the basis of these few offenses.

My response–

John Paul Stevens:

–Each of which contributed to the running of the business because it induced some people to take the flight that they might not otherwise have taken.

Kenneth W. Starr:

–I would have to know, first of all, whether this was, in fact, corporate policy, board of directors approved policy, and the like when we’re talking about a corporate forfeiture as opposed to the in personam forfeiture of Mr. Crandall’s own interest in American… Airlines because he has to, under the statute, use this enterprise for criminal purposes.

That’s the evil that the statute is getting at, and that’s what was built up here.

John Paul Stevens:

Well, let’s assume the board of directors approved the schedule of the flight, you know, what… the movies they’re going to show on the flight to California.

It’s rather unlikely, but assume they did.

John Paul Stevens:

And they decided that there were six very interesting Swedish films that–

[Laughter]

–might be very attractive to a lot of travelers, and they decided to show them.

They turn out to be obscene, and they had advertised them.

They could forfeit the whole airline.

Kenneth W. Starr:

I don’t think so under this Court’s interpretation in HJ, Inc. of the statute, which we don’t quarrel with.

In fact, we think it’s quite correct because it is the statute’s concern, Congress’ concern, about what the Court called the pattern, that is to say, a threat of continuity.

This is–

John Paul Stevens:

But you just told me six is enough for a pattern.

Kenneth W. Starr:

–I have suggested that it could be enough as long as there is the threat of continuity, and that is why I will not concede that any, other than the most irrational, corporation would knowingly, as a matter of corporate policy, continue and threaten to continue within the meaning of HJ, Inc.–

What this statute was aiming at and why this Court has seen since 1984 so little of these kinds of predicate offenses is the kind of empire that we saw here, one that is essentially given over to the display of materials that are very similar, as the district court saw, to those–

David H. Souter:

Well, it may be… Mr. Starr, if I may interrupt you.

It may be very similar, but there is a crucial constitutional difference depending on whether there are six pieces which are obscene and 600,000 which are merely erotic.

And it seems to me that your argument rests upon the identification of what is assumed and probably correctly assumed to be simply erotic adult material with the six which were shown to be obscene.

And that’s your way of sort of getting out of the analogy that Justice Stevens is suggesting, and I don’t see how that’s a legitimate basis.

I don’t see how we can assume the identity of eroticism with obscenity.

Kenneth W. Starr:

–I don’t think you have to make that assumption.

The point that I am getting at is can Congress constitutionally say once you prove the requisite elements of RICO, effect a forfeiture.

In our view, yes, that it is not disproportionate when, in fact, the enterprise is being used as the instrument for carrying out the criminal activity.

Here the pattern is the sale of obscene materials.

Sandra Day O’Connor:

And, General Starr, would you take the same position if a substantial amount of the inventory turned out to be Gideon’s Bibles?

Kenneth W. Starr:

We would take the same position, that it is… that what RICO is getting at… and I think this is what is critical in terms of a First Amendment analysis, that RICO is neutral in terms of what it is seeking to obtain.

It is seeking to obtain proceeds and assets.

It does not care what those assets are, if they’re cash registers or if they’re Gideon’s Bibles.

Sandra Day O’Connor:

There would be no First Amendment concern that would trigger even so much as an O’Brien test to the application–

Kenneth W. Starr:

Not as long as there is an appropriate predicate offense, and then I think there is an appropriate… as was noted in the concurring opinion in Arcara, a concern that Congress… that the Government may be getting at a business because it disfavors that particular speech.

Sandra Day O’Connor:

–Well, would the Government have burned the assets if it had turned out they were Gideon’s Bibles instead of erotica?

Kenneth W. Starr:

I would seriously doubt that it would have, and one of the reasons that–

Sandra Day O’Connor:

So, does that mean it’s somehow content based?

Kenneth W. Starr:

–Not at all.

Kenneth W. Starr:

Because of the Government’s concern about the nature of these materials and not wanting, frankly, to traffic in obscene materials, the Government did not need to go into the business or otherwise dispose of these in any other way than to destroy.

I should note the fact that a number of these materials were, in fact, preserved and shipped to California, and I don’t think there will be dispute with respect to that.

Moreover, the adult theaters were not forfeited.

The Government did not try to achieve a forfeiture of the adult theaters.

What it was, in fact, focusing on were these bookstores… and this was all before the jury in the case… photographs of the interiors of these… or these adult entertainment magazine and video kinds of centers.

And so, the jury had before it the nature of this enterprise and that prompted then at the forfeiture hearing the judge to conclude that what had been established here was a vast supply network that permitted this pattern of racketeering in terms of obscenity offenses in interstate trafficking in obscene materials to take place.

That is to say, what is RICO getting at?

It is an enterprise… an individual’s use of that enterprise as the vehicle for commission of criminal offenses.

And when Congress took the step that it did in 1984 to include obscenity as a predicate offense… again Fort Wayne Books said that was all right to do.

It was all right for Indiana.

It was all right for Congress… it did so based on Congress’ concern and understanding that pornography was, in fact, linked to organized crime and, in fact, was a major supply of source, financial resources, for organized crime.

That’s why Congress saw fit to include it.

That is why the prosecutions that this Court has seen… there have been all of five.

This Court has seen two.

The Pryba case, which the Court had before it on certiorari, but did not take certiorari a few years ago.

All were the same type as what we have here, an organized criminal enterprise given over to the trafficking in obscene materials, and it also was characterized by these other aspects of secreted assets, hidden income, the use of nominees as owners of the corporation, and the like.

David H. Souter:

Are you suggesting that if there weren’t the evidence of the hidden assets and the tax offenses and so on, that the result under the… under RICO might be different?

Kenneth W. Starr:

I am not.

I’m not moving from my comment to Justice Stevens.

But in terms of why this case was brought, if there is concern about this case was brought because the Government disfavors certain kinds of speech, these are the kinds of prosecutions that the record shows that the United States has, in fact, brought.

There have been four or five obscenity predicate RICO prosecutions.

Two have made it to this Court.

John Paul Stevens:

I don’t quite understand what you’re saying.

You’re saying you do or do not disfavor this kind of speech if it’s nonobscene?

Kenneth W. Starr:

The… we–

John Paul Stevens:

Which were you saying?

I’m just trying… I didn’t quite understand whether you said the Government did–

Kenneth W. Starr:

–I may have misspoken, Justice Stevens.

I am not prepared to concede, as Mr. Weston would have the Court accept, that obscenity is speech.

John Paul Stevens:

–No, no.

John Paul Stevens:

I understand.

I’m assuming that there’s a lot of this stuff out there that’s not obscene.

We have to presume that.

And I’m asking you whether you’re telling us that the Government disfavors the nonobscene, erotic material speech.

Kenneth W. Starr:

No.

That’s not of interest to the Government.

John Paul Stevens:

Then it’s puzzling why you burned it all.

Kenneth W. Starr:

That is not of interest to the Government.

The Government’s concern, Justice Stevens, was that these materials were of… as the district court saw who had the materials before him, of a similar nature.

And the Government is not interested either in storing these materials indefinitely, nor is it interested in selling these materials–

So–

Kenneth W. Starr:

–which might be adjudicated to be obscene.

David H. Souter:

–So, you’re saying if the Government did, in fact, bring these RICO forfeiture proceedings only against sellers of pornography, that you would, indeed, have a problem of content based suppression.

Kenneth W. Starr:

At least, I think it’s more likely… no, I don’t concede that.

I do think that you might have a charge of selective prosecution.

Under this Court’s analysis in Waite, that kind of argument can obviously be advanced.

It was not advanced here.

There’s no discussion or suggestion by Mr. Alexander that he alone has been singled out for prosecution.

No.

As long as the Government is proceeding with obscenity as the predicate, it is abiding by Congress’ intent and it is not making content based distinctions.

Antonin Scalia:

Suppose it brought no other RICO… that’s what I understood Justice Souter’s questions to be.

The only RICO prosecution that the Government ever brings are obscenity prosecutions of this sort.

You wouldn’t… you think that would be a basis to suspect that the Government is… has some antagonism towards the speech?

I would be prepared to consider that evidence of such antagonism.

If you brought no other–

Kenneth W. Starr:

If, in fact… but I think–

Antonin Scalia:

–You have a few other RICO cases, don’t you?

[Laughter]

Kenneth W. Starr:

–Oh, we have many other.

In fact, the United States… if there is some impression, Justice Scalia, that the Government is only bringing RICO obscenity predicate cases, we bring about 100 cases a year.

Kenneth W. Starr:

One or two of those a year are typically obscenity predicate type offenses.

But if, to accept the hypothetical, we were only using RICO which had seven or eight predicate offenses and using it only, I think, number one, one can obviously appropriately be concerned with the exercise of prosecutorial discretion and the… and whose power is that?

It is the executive branch’s authority to determine what is, in fact, the most important kinds of prosecutions to bring.

But because of the First Amendment overlay that does, in fact, arise in this context, it does seem to me that an argument could very well be mounted… and it might be accepted… that the Government is engaged in selective enforcement, selective prosecution of cases, and we would take that through the Waite analysis.

I thank the Court.

William H. Rehnquist:

Thank you, General Starr.

The case is submitted.