Adult Video Association, Doe, Inc., Roe, Inc., Paul Poe v. William Barr, Attorney General of the United States

Adult Video Association, Doe, Inc., Roe, Inc., and Paul Poe filed an action seeking a declaration that the federal Racketeer Influenced and Corrupt Organizations Act’s (“RICO”) criminal provisions are facially unconstitutional when enforced against obscenity offenses. The district court granted the government’s motion to dismiss for failure to state a claim. The plaintiffs appeal only the district court’s dismissal of their First Amendment challenge to RICO’s criminal provisions. We affirm in part and remand in part.

BACKGROUND

RICO, 18 U.S.C. §§ 1961-1968 , imposes severe penalties on any person convicted of engaging in a pattern of racketeering activity. The penalties include prison terms of up to twenty years, substantial fines, and forfeiture of

18 U.S.C. § 1963 (a). Forfeiture is mandatory upon conviction. Id.

The statute also permits the government to apply to a district court for a pre-trial order to preserve assets for forfeiture. 18 U.S.C. § 1963 (d). Courts may authorize pre-trial seizures of assets, issue restraining orders and injunctions, require the execution of performance bonds, and “take any other action to preserve the availability of property ... for…