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ALEXANDER v UNITED STATES

509 U.S. 544


June 28, 1993
Section 4, Article 3 of the 1987 Philippine Constitution (prior restraint)

FACTS:
The Petitioner, Ferris J. Alexander, has been in the “adult entertainment” business for more than
30 years. He generated millions of dollars in annual revenue from selling pornographic magazines and
sexual paraphernalia, showing sexually explicit movies, and eventually selling and renting videotapes of a
similar nature. He would receive shipment of these materials at his warehouse in Minneapolis, Minnesota,
wrap them in plastic, priced them and shipped them to thirteen (13) retail stores around the same state.
In 1989, Federal authorities filed an indictment charge against the Petitioner and others for the
operation of a racketeering enterprise violating the Racketeer Influenced and Corrupt Organizations Act
(RICO)see NOTES for details. The said indictment included obscenity charges, RICO charges which were
predicated on the obscenity charges, and numerous tax evasion charges.
The United States District Court for the District of Minnesota determined that 4 magazines and 3
videotapes, which graphically depicted a variety of “hardcore” sexual acts, were obscene, and were
distributed throughout petitioner’s adult entertainment empire. They convicted the petitioner with 17
substantive obscenity offenses: (12 counts of transporting obscene materials in interstate commerce for
the purpose of sale and distribution, 5 counts of engaging in the business of selling obscene materials),
and 3 RICO offenses: (1 count of receiving and using income derived from a pattern of racketeering
activity, 1 count of conspiring to conduct a RICO enterprise, and 1 count of conducting a RICO
enterprise). He was sentenced to a total of 6 years in prison, and fined $100,000. In addition to this, the
District Court reconvened the jury and conducted a forfeiture proceeding. They found that Petitioner
acquired a variety of assets as a result of his racketeering activities. The court ordered petitioner to forfeit
his wholesale and retail businesses, and almost $9M in moneys acquired through racketeering activities.
The Court of Appeals affirms the decision of the District Court.
Petitioner now brings the case to the Supreme Court.
ISSUES:

1. W/N the forfeiture order violates the First Amendment for constituting a prior restraint on speech,
rather than a permissible criminal punishment.
2. W/N the penalty imposed upon the petitioner violates the Eighth Amendment for being an “Excessive
Fine.”

HELD:

1. NO
The Petitioner contends that the forfeiture of expressive materials and the assets of businesses
engaged in expressive activity, when predicated solely upon previous obscenity violations, operate as
a prior restraint because it prohibits future presumptively protected expression in retaliation for prior
unprotected speech. The Court disagrees.
The RICO forfeiture in this case does not forbid petitioner to engage 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. In

Prepared by: Kathryn Audrey Quinto Page 1 of 2


a nutshell, the Petitioner is perfectly free to establish an adult bookstore or otherwise engage in the
production and distribution of erotic materials; he just cannot finance these enterprises with assets
derived from prior racketeering offenses.
2. REMANDED TO THE COURT OF APPEALS
The Court of Appeal’s decision merely lumped together the concept of “Cruel and Unusual
Punishment” with “Excessive Fines,” and disposing both of them with the general statement that “the
Eighth Amendment does not require any proportionality review of a sentence less than life
imprisonment without possibility of parole.” This is only true for the “Cruel and Unusual Punishment
Clause.” However, the Excessive Fines Clause limits the government’s power to exact payments,
whether in cash or in kind, as punishment for some offense.
In turn, this Court remands the question of the violation of the Eighth Amendment to the Court of
Appeals. Accordingly, the forfeiture in this case should be analyzed under the Excessive Fines
Clause.

NOTES:
Racketeer Influenced and Corrupt Organizations Act (RICO)
o A law designed to attack organized criminal activity and preserve marketplace integrity by
investigating, controlling, and prosecuting persons who participate or conspire to participate
in racketeering.
Racketeering
o A system of organized crime traditionally involving the extortion of money from businesses
by intimidation, violence or other illegal methods.
o Modern Federal RICO statute now involves mail fraud, securities fraud, and the collection of
illegal gambling debt.

Prepared by: Kathryn Audrey Quinto Page 2 of 2

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