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The term "prior restraint" is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur. Temporary restraining orders and permanent injunctions -- i. e., court orders that actually forbid speech activities -- are classic examples of prior restraints. This understanding of what constitutes a prior restraint is borne out by our cases, even those on which petitioner relies.
After a full criminal trial, Ferris J. Alexander, Sr., the owner of numerous businesses dealing in sexually explicit materials, was convicted of, inter alia, violating federal obscenity laws and the Racketeer Influenced and Corrupt Organizations Act (RICO). The obscenity convictions, based on a finding that seven items sold at several stores were obscene, were the predicates for his RICO convictions. In addition to imposing a prison term and fine, the District Court ordered Alexander, as punishment for the RICO violations, to forfeit his businesses and almost $9 million acquired through racketeering activity. In affirming the forfeiture order, the Court of Appeals rejected Alexander’s arguments that RICO's forfeiture provisions constitute a prior restraint on speech and are overbroad. The court also held that the forfeiture did not violate the Eighth Amendment, concluding that proportionality review is not required of any sentence less than life imprisonment without the possibility of parole. It did not consider whether the forfeiture was disproportionate or "excessive."
As applied here, did RICO's forfeiture provisions violate the First Amendment?
The court held that the forfeiture did not constitute a "prior restraint" under U.S. Const. amend. I because it did not forbid Alexander from engaging in any expressive activities in the future. The court found, however, that the appellate court failed to determine whether the forfeiture was excessive under U.S. Const. amend VIII. Thus, the court rejected the claim under U.S. Const. amend. I, vacated the judgment, and remanded the claim for a determination of whether the penalty was excessive under U.S. Const. amend. VIII.