Alexander v. United States, 509 U.S. 544 (1993)

As part of his adult entertainment business, Alexander ran stores that sold pornographic materials. He was convicted of obscenity after a court found that he had sold three videotapes and four magazines that were obscene. The obscenity convictions were used as predicate charges for convictions of violating the RICO Act. In addition to a prison term and a fine, Alexander was sentenced to forfeit his business assets because they were related to his alleged racketeering activities. The federal government destroyed his assets, which were worth about $9 million, rather than selling them once it took possession of them. Appealing this part of his sentence, Alexander argued that the destruction of his business functioned as a prior restraint on speech because it retaliated against prior unprotected speech by preventing future, potentially protected speech.

Opinions

Majority

• William Hubbs Rehnquist
  (Author)
• Byron Raymond White
• Sandra Day O’Connor
• Antonin Scalia
• Clarence Thomas

Since this sanction arises from a criminal conviction that post-dated the defendant’s relevant conduct, it should not be considered a prior restraint. It is related to speech that already occurred, while a prior restraint prevents speech that has not yet occurred. The basis of the forfeiture and destruction was the RICO violations, rather than the pornographic nature of the content. No restrictions had been placed on the defendant’s ability to remain in the business of distributing adult entertainment, and it was reasonable to prevent him from using the assets related to the RICO violations in doing so. The defendant had received all of the applicable constitutional protections at his trial.

Dissent

• Anthony M. Kennedy
  (Author)
• Harry Andrew Blackmun
• John Paul Stevens

Free speech is undermined when items that are related to protected speech are destroyed together with unprotected items. People who are in the business of adult entertainment will feel excessively restrained because they may face the threat of losing protected materials to government seizure.

Concurrence/Dissent In Part

• David H. Souter
  (Author)

Case Commentary

In this First Amendment decision, the ban on prior restraints did not apply because the owner was required merely to give up the bookstores that he owned at the time of the conviction. He technically was not prevented from opening another adult bookstore after leaving prison.