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Congress enacted the Racketeer Influenced Corrupt Organizations Act (RICO) to fight organized crime. RICO allows the government to seize assets and businesses connected to a criminal enterprise, even if those assets were otherwise legitimate.
Over time, however, federal prosecutors began to use the RICO statute to go after all kinds of criminal enterprises, not just organized crime. One case, Alexander v. United States, 509 U.S. 544 (1993), raised the question of whether RICO’s forfeiture provisions could be used to seize assets that were protected by the First Amendment.
Ferris Alexander owned over a dozen adult bookstores and theaters. Alexander was convicted under the RICO statute based on his sale of seven obscene books and movies. In addition to fines and prison time, the court ordered the forfeiture of Alexander’s legitimate businesses.
Alexander challenged the seizure of the non-obscene material, arguing that the forfeiture order was effectively a prior restraint on his speech. Therefore, Alexander argued, using RICO to seize his businesses ran afoul of the First Amendment.
The United States Supreme Court took up the case and ultimately upheld the forfeiture. The Court concluded that the forfeiture was a subsequent punishment and not a prior restraint and, in so doing, upheld the first RICO forfeiture based on an obscenity charge.