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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
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SUPREME COURT OF THE UNITED STATES
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No. 91-1526
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FERRIS J. ALEXANDER, Sr., PETITIONER v.
UNITED STATES
on writ of certiorari to the united states court
of appeals for the eighth circuit
[June 28, 1993]

  Chief Justice Rehnquist delivered the opinion of the
Court.
  After a full criminal trial, petitioner Ferris J. Alexander,
owner of more than a dozen stores and theaters dealing
in sexually explicit materials, was convicted on, inter alia,
17 obscenity counts and 3 counts of violating the Racke-
teer Influenced and Corrupt Organizations Act (RICO).
The obscenity convictions, based on the jury's findings that
four magazines and three videotapes sold at several of
petitioner's stores were obscene, served as the predicates
for his three RICO convictions.  In addition to imposing
a prison term and fine, the District Court ordered peti-
tioner to forfeit, pursuant to 18 U. S. C. 1963 (1988 ed.
and Supp. III), certain assets that were directly related
to his racketeering activity as punishment for his RICO
violations.  Petitioner argues that this forfeiture violated
the First and Eighth Amendments to the Constitution.
We reject petitioner's claims under the First Amendment
but remand for reconsideration of his Eighth Amendment
challenge.
  Petitioner was in the so-called -adult entertainment-
business for more than 30 years, selling pornographic
magazines and sexual paraphernalia, showing sexually
explicit movies, and eventually selling and renting video-
tapes of a similar nature.  He received shipments of these
materials at a warehouse in Minneapolis, Minnesota,
where they were wrapped in plastic, priced, and boxed.
He then sold his products through some 13 retail stores
in several different Minnesota cities, generating millions
of dollars in annual revenues.  In 1989, federal authorities
filed a 41-count indictment against petitioner and others,
alleging, inter alia, operation of a racketeering enterprise
in violation of RICO.  The indictment charged 34 obscen-
ity counts and 3 RICO counts, the racketeering counts
being predicated on the obscenity charges.  The indictment
also charged numerous counts of tax evasion and related
offenses that are not relevant to the questions before us.
  Following a 4-month jury trial in the United States
District Court for the District of Minnesota, petitioner was
convicted of 17 substantive obscenity offenses: 12 counts
of transporting obscene material in interstate commerce
for the purpose of sale or distribution, in violation of 18
U. S. C. 1465; and 5 counts of engaging in the business
of selling obscene material, in violation of 18 U. S. C.
1466 (1988 ed. and Supp. III).  He also was convicted
of 3 RICO offenses which were predicated on the obscenity
convictions: one count of receiving and using income
derived from a pattern of racketeering activity, in violation
of 18 U. S. C. 1962(a); one count of conducting a RICO
enterprise, in violation of 1962(c); and one count of con-
spiring to conduct a RICO enterprise, in violation of
1962(d).  As a basis for the obscenity and RICO convic-
tions, the jury determined that four magazines and three
videotapes were obscene.  Multiple copies of these maga-
zines and videos, which graphically depicted a variety of
-hard core- sexual acts, were distributed throughout
petitioner's adult entertainment empire.
  Petitioner was sentenced to a total of six years in
prison, fined $100,000, and ordered to pay the cost of
prosecution, incarceration, and supervised release.  In
addition to these punishments, the District Court recon-
vened the same jury and conducted a forfeiture proceeding
pursuant to 1963(a)(2).  At this proceeding, the Govern-
ment sought forfeiture of the businesses and real estate
that represented petitioner's interest in the racketeering
enterprise, 1963(a)(2)(A), the property that afforded
petitioner influence over that enterprise, 1963(a)(2)(D),
and the assets and proceeds petitioner had obtained from
his racketeering offenses, 1963(a)(1), (3).  The jury
found that petitioner had an interest in 10 pieces of
commercial real estate and 31 current or former busi-
nesses, all of which had been used to conduct his racke-
teering enterprise.  Sitting without the jury, the District
Court then found that petitioner had acquired a variety
of assets as a result of his racketeering activities.  The
court ultimately ordered petitioner to forfeit his wholesale
and retail businesses (including all the assets of those
businesses) and almost $9 million in moneys acquired
through racketeering activity.
  The Court of Appeals affirmed the District Court's
forfeiture order.  Alexander v. Thornburgh, 943 F. 2d 825
(CA8 1991).  It rejected petitioner's argument that the
application of RICO's forfeiture provisions constituted a
prior restraint on speech and hence violated the First
Amendment.  Recognizing the well-established distinction
between prior restraints and subsequent criminal punish-
ments, the Court of Appeals found that the forfeiture here
was -a criminal penalty imposed following a conviction for
conducting an enterprise engaged in racketeering activi-
ties,- and not a prior restraint on speech.  Id., at 834.
The court also rejected petitioner's claim that RICO's
forfeiture provisions are constitutionally overbroad, point-
ing out that the forfeiture order was properly limited to
assets linked to petitioner's past racketeering offenses.
Id., at 835.  Lastly, the Court of Appeals concluded that
the forfeiture order does not violate the Eighth
Amendment's prohibition against -cruel and unusual
punishments- and -excessive fines.-  In so ruling, however,
the court did not consider whether the forfeiture in this
case was grossly disproportionate or excessive, believing
that the Eighth Amendment -`does not require a propor-
tionality review of any sentence less than life imprison-
ment without the possibility of parole.'-  Id., at 836
(quoting United States v. Pryba, 900 F. 2d 748, 757 (CA4),
cert. denied, 498 U. S. 924 (1990)).  We granted certiorari,
505 U. S. -- (1992).
  Petitioner first contends that the forfeiture in this case,
which effectively shut down his adult entertainment
business, constituted an unconstitutional prior restraint
on speech, rather than a permissible criminal punishment.
According to petitioner, forfeiture of expressive materials
and the assets of businesses engaged in expressive activ-
ity, when predicated solely upon previous obscenity viola-
tions, operates as a prior restraint because it prohibits
future presumptively protected expression in retaliation
for prior unprotected speech.  Practically speaking, peti-
tioner argues, the effect of the RICO forfeiture order here
was no different from the injunction prohibiting the
publication of expressive material found to be a prior
restraint in Near v. Minnesota ex rel. Olson, 283 U. S. 697
(1931).  As petitioner puts it, see Brief for Petitioner 25,
the forfeiture order imposed a complete ban on his future
expression because of previous unprotected speech.  We
disagree.  By lumping the forfeiture imposed in this case
after a full criminal trial with an injunction enjoining
future speech, petitioner stretches the term -prior re-
straint- well beyond the limits established by our cases.
To accept petitioner's argument would virtually obliterate
the distinction, solidly grounded in our cases, between
prior restraints and subsequent punishments.
  The term prior restraint is used -to describe administra-
tive and judicial orders forbidding certain communications
when issued in advance of the time that such communica-
tions are to occur.-  M. Nimmer, Nimmer on Freedom of
Speech 4.03, p. 4-14 (1984) (emphasis added).  Tempo-
rary restraining orders and permanent injunctions-i.e.,
court orders that actually forbid speech activities-are
classic examples of prior restraints.  See id., 4.03, at
4-16.  This understanding of what constitutes a prior
restraint is borne out by our cases, even those on which
petitioner relies.  In Near v. Minnesota ex rel. Olson,
supra, we invalidated a court order that perpetually
enjoined the named party, who had published a newspaper
containing articles found to violate a state nuisance
statute, from producing any future -malicious, scandalous
and defamatory- publication.  Near, therefore, involved a
true restraint on future speech-a permanent injunction.
So, too, did Organization for a Better Austin v. Keefe, 402
U. S. 415 (1971), and Vance v. Universal Amusement Co.,
445 U. S. 308 (1980) (per curiam), two other cases cited
by petitioner.  In Keefe, we vacated an order -enjoining
petitioners from distributing leaflets anywhere in the town
of Westchester, Illinois.-  402 U. S., at 415 (emphasis
added).  And in Vance, we struck down a Texas statute
that authorized courts, upon a showing that obscene films
had been shown in the past, to issue an injunction of
indefinite duration prohibiting the future exhibition of
films that have not yet been found to be obscene.  445
U. S., at 311.  See also New York Times Co. v. United
States, 403 U. S. 713, 714 (1971) (per curiam) (Govern-
ment sought to enjoin publication of the Pentagon Papers).
  By contrast, the RICO forfeiture order in this case does
not forbid petitioner from engaging in any expressive
activities in the future, nor does it require him to obtain
prior approval for any expressive activities.  It only de-
prives him of specific assets that were found to be related
to his previous racketeering violations.  Assuming, of
course, that he has sufficient untainted assets to open
new stores, restock his inventory, and hire staff, petitioner
can go back into the adult entertainment business tomor-
row, and sell as many sexually explicit magazines and
videotapes as he likes, without any risk of being held in
contempt for violating a court order.  Unlike the injunc-
tions in Near, Keefe, and Vance, the forfeiture order in
this case imposes no legal impediment to-no prior
restraint on-petitioner's ability to engage in any expres-
sive activity he chooses.  He is perfectly free to open an
adult bookstore or otherwise engage in the production and
distribution of erotic materials; he just cannot finance
these enterprises with assets derived from his prior
racketeering offenses.
  The constitutional infirmity in nearly all of our prior
restraint cases involving obscene material, including those
on which petitioner and the dissent rely, see post, at 12,
18-19, was that Government had seized or otherwise
restrained materials suspected of being obscene without
a prior judicial determination that they were in fact so.
See, e.g., Marcus v. Search Warrant, 367 U. S. 717 (1961);
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); A
Quantity of Copies of Books v. Kansas, 378 U. S. 205
(1964); Roaden v. Kentucky, 413 U. S. 496 (1973); Vance,
supra.  In this case, however, the assets in question were
not ordered forfeited because they were believed to be
obscene, but because they were directly related to
petitioner's past racketeering violations.  The RICO
forfeiture statute calls for the forfeiture of assets because
of the financial role they play in the operation of the
racketeering enterprise.  The statute is oblivious to the
expressive or nonexpressive nature of the assets forfeited;
books, sports cars, narcotics, and cash are all forfeitable
alike under RICO.  Indeed, a contrary scheme would be
disastrous from a policy standpoint, enabling racketeers
to evade forfeiture by investing the proceeds of their
crimes in businesses engaging in expressive activity.
  Nor were the assets in question ordered forfeited
without according petitioner the requisite procedural
safeguards, another recurring theme in our prior restraint
cases.  Contrasting this case with Fort Wayne Books, Inc.
v. Indiana, 489 U. S. 46 (1989), aptly illustrates this
point.  In Fort Wayne Books, we rejected on constitutional
grounds the pretrial seizure of certain expressive material
that was based upon a finding of -no more than probable
cause to believe that a RICO violation had occurred.-  Id.,
at 66 (emphasis in original).  In so holding, we empha-
sized that there had been no prior judicial -determination
that the seized items were `obscene' or that a RICO
violation ha[d] occurred.-  Ibid. (emphasis in original).
-[M]ere probable cause to believe a legal violation ha[d]
transpired,- we said, -is not adequate to remove books or
films from circulation.-  Ibid.  Here, by contrast, the
seizure was not premature, because the Government
established beyond a reasonable doubt the basis for the
forfeiture.  Petitioner had a full criminal trial on the
merits of the obscenity and RICO charges during which
the Government proved that four magazines and three
videotapes were obscene and that the other forfeited
assets were directly linked to petitioner's commission of
racketeering offenses.
  Petitioner's claim that the RICO forfeiture statute
operated as an unconstitutional prior restraint in this case
is also inconsistent with our decision in Arcara v. Cloud
Books, Inc., 478 U. S. 697 (1986).  In that case, we
sustained a court order, issued under a general nuisance
statute, that closed down an adult bookstore that was
being used as a place of prostitution and lewdness.  In
rejecting out-of-hand a claim that the closure order
amounted to an improper prior restraint on speech, we
stated:
-The closure order sought in this case differs from a
prior restraint in two significant respects.  First, the
order would impose no restraint at all on the dissemi-
nation of particular materials, since respondents are
free to carry on their bookselling business at another
location, even if such locations are difficult to find.
Second, the closure order sought would not be im-
posed on the basis of an advance determination that
the distribution of particular materials is prohib-
ited-indeed, the imposition of the closure order has
nothing to do with any expressive conduct at all.-
Id., at 705-706, n. 2.
This reasoning applies with equal force to this case, and
thus confirms that the RICO forfeiture order was not a
prior restraint on speech, but a punishment for past
criminal conduct.  Petitioner attempts to distinguish
Arcara on the ground that obscenity, unlike prostitution
or lewdness, has -`a significant expressive element.'-
Brief for Petitioner 16 (quoting Arcara, supra, at 706).
But that distinction has no bearing on the question
whether the forfeiture order in this case was an impermis-
sible prior restraint.
  Finally, petitioner's proposed definition of the term
-prior restraint- would undermine the time-honored
distinction between barring speech in the future and
penalizing past speech.  The doctrine of prior restraint
originated in the common law of England, where prior
restraints of the press were not permitted, but punish-
ment after publication was.  This very limited application
of the principle of freedom of speech was held inconsistent
with our First Amendment as long ago as Grosjean v.
American Press Co., 297 U. S. 233, 246 (1936).  While we
may have given a broader definition to the term -prior
restraint- than was given to it in English common law,
our decisions have steadfastly preserved the distinction
between prior restraints and subsequent punishments.
Though petitioner tries to dismiss this distinction as
-neither meaningful nor useful,- Brief for Petitioner 29,
we think it is critical to our First Amendment jurispru-
dence.  Because we have interpreted the First Amendment
as providing greater protection from prior restraints than
from subsequent punishments, see Southeastern Promo-
tions, Ltd. v. Conrad, 420 U. S. 546, 558-559 (1975), it
is important for us to delineate with some precision the
defining characteristics of a prior restraint.  To hold that
the forfeiture order in this case constituted a prior re-
straint would have the exact opposite effect: it would blur
the line separating prior restraints from subsequent
punishments to such a degree that it would be impossible
to determine with any certainty whether a particular
measure is a prior restraint or not.
  In sum, we think that fidelity to our cases requires us
to analyze the forfeiture here not as a prior restraint, but
under normal First Amendment standards.  So analyzing
it, we find that petitioner's claim falls well short of the
mark.  He does not challenge either his 6-year jail sen-
tence or his $100,000 fine as violative of the First Amend-
ment.  The first inquiry that comes to mind, then, is why,
if incarceration for six years and a fine of $100,000 are
permissible forms of punishment under the RICO statute,
the challenged forfeiture of certain assets directly related
to petitioner's racketeering activity is not.  Our cases
support the instinct from which this question arises; they
establish quite clearly that the First Amendment does not
prohibit either stringent criminal sanctions for obscenity
offenses or forfeiture of expressive materials as punish-
ment for criminal conduct.
  We have in the past rejected First Amendment chal-
lenges to statutes that impose severe prison sentences and
fines as punishment for obscenity offenses.  See, e.g.,
Ginzburg v. United States, 383 U. S. 463, 464-465, n. 2
(1966); Smith v. United States, 431 U. S. 291, 296, n. 3
(1977); Fort Wayne Books, 489 U. S., at 59, n. 8.  Peti-
tioner does not question the holding of those cases; he
instead argues that RICO's forfeiture provisions are
constitutionally overbroad, because they are not limited
solely to obscene materials and the proceeds from the sale
of such materials.  Petitioner acknowledges that this is an
unprecedented use of the overbreadth principle.  See Brief
for Petitioner 36.  The -overbreadth- doctrine, which is a
departure from traditional rules of standing, permits a
defendant to make a facial challenge to an overly broad
statute restricting speech, even if he himself has engaged
in speech that could be regulated under a more narrowly
drawn statute.  See, e.g., Broadrick v. Oklahoma, 413
U. S. 601, 612-613 (1973); City Council of Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 798-801 (1984).
But the RICO statute does not criminalize constitutionally
protected speech and therefore is materially different from
the statutes at issue in our overbreadth cases.  Cf., e.g.,
Board of Airport Comm'rs of Los Angeles v. Jews for
Jesus, Inc., 482 U. S. 569, 574-575 (1987).
  Petitioner's real complaint is not that the RICO statute
is overbroad, but that applying RICO's forfeiture provi-
sions to businesses dealing in expressive materials may
have an improper -chilling- effect on free expression by
deterring others from engaging in protected speech.  No
doubt the monetarily large forfeiture in this case may
induce cautious booksellers to practice self-censorship and
remove marginally protected materials from their shelves
out of fear that those materials could be found obscene
and thus subject them to forfeiture.  But the defendant
in Fort Wayne Books made a similar argument, which was
rejected by the Court in this language:
``[D]eterence of the sale of obscene materials is a
legitimate end of state antiobscenity laws, and our
cases have long recognized the practical reality that
`any form of criminal obscenity statute applicable to
a bookseller will induce some tendency to self-censor-
ship and have some inhibitory effect on the dissemi-
nation of material not obscene.'''  489 U. S., at 60
(quoting Smith v. California, 361 U. S. 147, 154-155
(1959)).
  Fort Wayne Books is dispositive of any chilling argument
here, since the threat of forfeiture has no more of a
chilling effect on free expression than the threat of a
prison term or a large fine.  Each racketeering charge
exposes a defendant to a maximum penalty of 20 years'
imprisonment and a fine of up to $250,000.  18 U. S. C.
1963(a) (1988 ed. and Supp. III).  Needless to say, the
prospect of such a lengthy prison sentence would have a
far more powerful deterrent effect on protected speech
than the prospect of any sort of forfeiture.  Cf. Blanton
v. North Las Vegas, 489 U. S. 538, 542 (1989) (loss of
liberty is a more severe form of punishment than any
monetary sanction).  Similarly, a fine of several hundred
thousand dollars would certainly be just as fatal to most
businesses-and, as such, would result in the same degree
of self-censorship-as a forfeiture of assets.  Yet these
penalties are clearly constitutional under Fort Wayne
Books.
  We also have rejected a First Amendment challenge to
a court order closing down an entire business that was
engaged in expressive activity as punishment for criminal
conduct.  See Arcara, 478 U. S., at 707.  Once again,
petitioner does not question the holding of that case; in
fact, he concedes that expressive businesses and assets
can be forfeited under RICO as punishment for, say,
narcotic offenses.  See Brief for Petitioner 11 (-forfeiture
of a media business purchased by a drug cartel would be
constitutionally permissible-).  Petitioner instead insists
that the result here should be different because the RICO
predicate acts were obscenity offenses.  In Arcara, we held
that criminal and civil sanctions having some incidental
effect on First Amendment activities are subject to First
Amendment scrutiny -only where it was conduct with a
significant expressive element that drew the legal remedy
in the first place, as in [United States v.] O'Brien, [391
U. S. 367 (1968)] or where a statute based on a
nonexpressive activity has the inevitable effect of singling
out those engaged in expressive activity, as in Minneapolis
Star [& Tribune Co. v. Minnesota Comm'r of Revenue, 460
U. S. 575 (1983)].-  478 U. S., at 706-707 (footnote
omitted).  Applying that standard, we held that prostitu-
tion and lewdness, the criminal conduct at issue in
Arcara, involve neither situation, and thus concluded that
the First Amendment was not implicated by the enforce-
ment of a general health regulation resulting in the
closure of an adult bookstore.  Id., at 707.  Under our
analysis in Arcara, the forfeiture in this case cannot be
said to offend the First Amendment.  To be sure, the
conduct that -drew the legal remedy- here-racketeering
committed through obscenity violations-may be -expres-
sive,- see R. A. V. v. St. Paul, 505 U. S. --, -- (1992),
but our cases clearly hold that -obscenity- can be regulat-
ed or actually proscribed consistent with the First Amend-
ment, see, e.g., Roth v. United States, 354 U. S. 476, 485
(1957); Miller v. California, 413 U. S. 15, 23 (1973).
  Confronted with our decisions in Fort Wayne Books and
Arcara-neither of which he challenges-petitioner's
position boils down to this: stiff criminal penalties for
obscenity offenses are consistent with the First Amend-
ment; so is the forfeiture of expressive materials as
punishment for criminal conduct; but the combination of
the two somehow results in a violation of the First
Amendment.  We reject this counter-intuitive conclusion,
which in effect would say that the whole is greater than
the sum of the parts.
  Petitioner also argues that the forfeiture order in this
case-considered atop his 6-year prison term and $100,000
fine-is disproportionate to the gravity of his offenses and
therefore violates the Eighth Amendment, either as a
-cruel and unusual punishment- or as an -excessive
fine.-  Brief for Petitioner 40.  The Court of Appeals,
though, failed to distinguish between these two compo-
nents of petitioner's Eighth Amendment challenge.
Instead, the court lumped the two together, disposing of
them both with the general statement that the Eighth
Amendment does not require any proportionality review
of a sentence less than life imprisonment without the
possibility of parole.  943 F. 2d, at 836.  But that state-
ment has relevance only to the Eighth Amendment's
prohibition against cruel and unusual punishments.
Unlike the Cruel and Unusual Punishments Clause, which
is concerned with matters such as the duration or condi-
tions of confinement, -[t]he Excessive Fines Clause limits
the Government's power to extract payments, whether in
cash or in kind, as punishment for some offense.-  Austin
v. United States, -- U. S. --, -- (1993) (slip op., at
6-7) (emphasis and internal quotation marks omitted);
accord, Browning-Ferris Industries of Vermont, Inc. v.
Kelco Disposal, Inc., 492 U. S. 257, 265 (1989) (-[A]t the
time of the drafting and ratification of the [Eighth]
Amendment, the word `fine' was understood to mean a
payment to a sovereign as punishment for some offense-);
id., at 265, n. 6.  The in personam criminal forfeiture at
issue here is clearly a form of monetary punishment no
different, for Eighth Amendment purposes, from a tradi-
tional -fine.-  Accord Austin, supra.  Accordingly, the
forfeiture in this case should be analyzed under the
Excessive Fines Clause.
  Petitioner contends that forfeiture of his entire business
was an -excessive- penalty for the Government to exact
-[o]n the basis of a few materials the jury ultimately
decided were obscene.-  Brief for Petitioner 40.  It is
somewhat misleading, we think, to characterize the
racketeering crimes for which petitioner was convicted as
involving just a few materials ultimately found to be
obscene.  Petitioner was convicted of creating and manag-
ing what the District Court described as -an enormous
racketeering enterprise.-  App. to Pet. for Cert. 160.  It
is in the light of the extensive criminal activities which
petitioner apparently conducted through this racketeering
enterprise over a substantial period of time that the
question of whether or not the forfeiture was -excessive-
must be considered.  We think it preferable that this
question be addressed by the Court of Appeals in the first
instance.
  For these reasons, we hold that RICO's forfeiture
provisions, as applied in this case, did not violate the
First Amendment, but that the Court of Appeals should
have considered whether they resulted in an -excessive-
penalty within the meaning of the Eighth Amendment's
Excessive Fines Clause.  Accordingly, we vacate the
judgment of the Court of Appeals and remand the case for
further proceedings consistent with this opinion.

                                      It is so ordered.