In Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), the Supreme Court unanimously agreed that an Indiana provision allowing pretrial seizure of allegedly obscene material imposed an impermissible prior restraint.

Indiana allowed pretrial seizure of obscene materials

Prejudgment provisions of Indiana’s Racketeer Influenced and Corrupt Organizations (RICO) law allowed for temporary restraining orders, seizures, and padlocking orders. Authorities had used the statute to seize materials from Fort Wayne Books and another adult bookstore, whose owners then filed suit.

Court said pretrial seizures require 'safeguards' when the First Amendment is involved

The case prompted four opinions from the Court.

In evaluating the case’s competing constitutional interests, the Court observed that Marcus v. Search Warrant (1961) and its progeny require “rigorous procedural safeguards . . . before expressive materials can be seized as ‘obscene.’ ” Although the Fourth Amendment generally allows contraband and evidence of crimes to be “seized on probable cause,” a different standard applies when First Amendment material is involved.

Critical to Justice Byron R. White’s decision was that “[h]ere there was not — and has not been — any determination that the seized items were ‘obscene’ or that a RICO violation has occurred.”

In addition, because “the petition for seizure and hearing [on the predicate crimes] were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, the order for seizure recited no more than probable cause in that respect.”

With this understanding, as Justice White observed, “mere probable cause” that a violation had occurred was not adequate to remove books or films from circulation.

Case highlights distinction between prior restraint and criminal penalty

Fort Wayne Books highlights the distinction between prior restraint and a subsequent criminal penalty (for example, forfeiture). In cases leading up to Fort Wayne Books, such as Arcara v. Cloud Books, Inc. (1986), and in cases following the decision, such as Alexander v. United States (1993), the Court determined that criminal penalties shutting down adult entertainment businesses did not create an impermissible chilling effect.

This article was originally published in 2009. Cary Wiggins is a civil rights attorney with his practice in Atlanta. He has served as lead counsel in numerous cases involving First Amendment, Fourth Amendment, and Fourteenth Amendment claims. He frequently represents individuals who are asserting false arrest, malicious prosecution, excessive force, and public accommodation claims, as well as businesses seeking constitutional protections.

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