Full opinion text
ORDER ROSENBAUM, District Judge. This matter is before the Court pursuant to objections made to a Report and Recommendation and an accompanying Pretrial Order each issued on September 30, 1989, by the Honorable Janice M. Symchych, United States Magistrate. Magistrate Symchych’s recommendations and order are appended hereto. Also before the Court are defendants’ objections to a Report and Recommendation issued by the Honorable Patrick J. McNulty, United States Magistrate, dated November 29, 1989. This recommendation is also appended hereto. In reviewing a report and recommendation, the Court must consider the arguments and evidence, de novo. 28 U.S.C. § 636(b)(1); Rule 72(b), Federal Rules of Civil Procedure (Fed.R.Civ.P.); Local Rule 16(C)(2). After review of the Reports and Recommendations, the Court adopts each magistrate’s reasoning and holdings, except Magistrate Symchych’s recommendations 1, 2, 4, and 5. In parts 1, 2, 4, and 5, Magistrate Symchych recommended that the Court find the RICO pretrial Restraining Order and consequent post-conviction forfeiture provisions, each pursuant to 18 U.S.C. § 1963 (§ 1963), unconstitutional, both facially and as applied. The magistrate found these provisions to be unconstitutionally overbroad and unconstitutional prior restraints. The magistrate, however, recommended against dismissing Counts VI, VII, and VIII. The magistrate examined the language and scope of § 1963 and particularly examined this Court’s Restraining Order, dated May 30, 1989. The order in question was issued upon the grand jury’s return of the indictment herein. The relevant substance of the Restraining Order will be set forth below. In her review of the Restraining Order, the magistrate focused on its ex parte nature, its recordkeeping requirements, and its probable impact on the sale or distribution of protected materials. The magistrate then considered the same factors as they are implicated by RICO’s forfeiture provisions. After her analysis, she also recommended that the Court find RICO’s forfeiture provisions facially over-broad and a prior restraint. The magistrate further urged the Court to strike these forfeiture provisions as applied. Noting the indictment identifies property which is to be forfeit in the event of conviction, she found the forfeiture sections of the indictment to be overly broad, encompassing “multiple bookstores, theatres, and videotape rental establishments,” at least some of which, she determined, were presumptively protected by the first amendment. Id. at 13. The government objects to these portions of the Report and Recommendation, arguing RICO is intended to provide powerful penalties, including forfeiture, to those engaged in racketeering activity. The United States then asserts that the nature of the RICO offense — be it narcotics, arson, extortion, or obscenity — is of no moment. The government further suggests RICO’s forfeiture and restraining provisions are in personam and limited to interests in property acquired, maintained, or used in the actual violation of the RICO statute, As such, the government claims RICO’s forfeiture provisions are not overbroad, even in the obscenity context. The government concludes: it is not the fact that the property is a bookstore, that triggers the forfeiture provision, but rather it is the owner’s use of the property to conduct his illegal activity (the nexus) that brings the property within the ambit of the penalty provisions. Government’s Memorandum, p. 9 (citations omitted). On the question of prior restraint, the government focuses upon the distinction between unlawful prior censorship and legitimate post-trial punishment. The government cites the language of Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), in support of the difference it perceives: [if] the object of the statute is not punishment, in the ordinary sense, but suppression of the offending newspaper or periodical in the future then the statute constitutes a prior restraint. Id. at 711, 51 S.Ct. at 629. The government urges rejection of the magistrate’s recommendation to strike the Restraining Order. For their part, defendants support the magistrate’s Report and Recommendation. Indeed, they argue her recommendation is too narrow. They point to Near’s proscription of prior restraints and to subsequent cases rejecting attempts to punish obscenity by means of restraint “considerably less drastic than the outright forfeitures imposed by RICO.” Defendants also raise the spectre of differing community standards. They stress the possibility that an obscenity conviction in one community could lead to forfeitures in another community espousing completely different values. Analysis I. The Restraining Order The magistrate recommends lifting the Restraining Order on the grounds of unconstitutional overbreadth and prior restraint, finding the authorizing statute unconstitutional on its face and as applied. The Court addresses each of these issues separately. A. Facial Challenge to 18 U.S.C. § 1963(d) 1. Overbreadth A statute is overbroad if it unconstitutionally infringes upon free speech while regulating another activity. In other words, a statute is overbroad “if in its reach it prohibits constitutionally protected conduct.” Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972). A law which arguably diminishes access to constitutionally protected materials is subject to first amendment overbreadth scrutiny. See Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389, 1391-92 (8th Cir.1985). The Court recognizes that invocation of the overbreadth doctrine is “strong medicine,” which should be utilized “with hesitation, and then ‘only as a last resort.’ ” New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) (iquoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)). In considering a facial challenge to a Congressional enactment, the Court is mindful that it must “first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); see Harman v. Forssenius, 380 U.S. 528, 535, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965). The Court must determine if there exists a constitutional interpretation of the statute which is consistent with Congress’ intent. United States v. Thirty-Seven Photographs, 402 U.S. 363, 370-75, 91 S.Ct. 1400, 1405-07, 28 L.Ed.2d 822 (1971). Clearly, some RICO pretrial restraining orders have no free speech implications whatsoever. Under 18 U.S.C. § 1963(d), restraints on property associated with RICO gambling, arson, extortion, or narcotics charges would not normally implicate the first amendment. Similarly, in the obscenity context, an order can be narrowly crafted to reach only those items which the grand jury has found probable cause to believe are obscene. The Court is confident that judges issuing pretrial restraining orders, pursuant to 18 U.S.C. § 1963(d), will seek to do so in a manner consistent with the Constitution. This assurance has been held sufficient to deny facial overbreadth challenges to statutes on first amendment grounds. See Ferber, 458 U.S. at 773, 102 S.Ct. at 3363. The Court, therefore, declines to adopt the magistrate’s recommendation holding 18 U.S.C. § 1963(d) facially unconstitutional in RICO prosecutions founded on obscenity offenses. The Court concludes that such pretrial restraining orders must be reviewed on a case-by-case basis. See American Library Assoc. v. Thornburgh, 713 F.Supp. 469, 486 (D.D.C.1989). See generally Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, -, 109 S.Ct. 916, 927-28, 103 L.Ed.2d 34 (1989). 2. Prior Restraint Near and its progeny counsel that any future restraint of speech, because of past or anticipated content, is a prior restraint. Near, 283 U.S. at 707-15, 51 S.Ct. at 628-30; see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554-56, 95 S.Ct. 1239, 1244-45, 43 L.Ed.2d 448 (1975); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971); Freedman v. Maryland, 380 U.S. 51, 57-60, 85 S.Ct. 734, 738-39, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70-72, 83 S.Ct. 631, 639-40, 9 L.Ed.2d 584 (1963). Clearly, “[a]ny system of prior restraints of expression ... bear[s] a heavy presumption against its constitutional validity.” Bantam Books, Inc., 372 U.S. at 70, 83 S.Ct. at 639. Yet, not all prior restraints are impermissible. Near, 283 U.S. at 216, 51 S.Ct. at 631; Southeastern Promotions, Ltd., 420 U.S. at 558, 95 S.Ct. at 1246. The cases make clear, however, that particular judicial safeguards and procedures must be followed before a prior restraint may be imposed. Southeastern Promotions, Ltd., 420 U.S. at 559-60, 95 S.Ct. at 1247; Freedman, 380 U.S. at 58, 85 S.Ct. at 739. An ex parte pretrial order or injunction presents particular prior restraint difficulties. Under such an order a defendant is required to “obey [the order] ... pending review of its merits and ... [is] subject to contempt proceedings” if he fails to do so. Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 319, 100 S.Ct. 1156, 1161, 63 L.Ed.2d 413 (1980). An ex parte pretrial order directed at a bookseller, at least some of whose wares have not been found obscene by a grand jury, raises grave constitutional questions. The Supreme Court could have been speaking of this threat when it said: Invariably, the Court has felt obliged to condemn systems in which the exercise of such authority was not bounded by precise and clear standards. The reasoning has been, simply, that the danger of censorship and of abridgement of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use. Our distaste for censorship — reflecting the natural distaste of a free people — is deep written in our law. Southeastern Promotions, Ltd., 420 U.S. at 553, 95 S.Ct. at 1244. This Court has recently rejected a facial challenge, albeit in a declaratory judgment action context, to the pretrial restraint provisions of 18 U.S.C. § 1963(d). Alexander v. Thornburgh, 713 F.Supp. 1278, 1292-93 (D.Minn.1989). Judge Doty reasoned that some pretrial restraining or seizure orders could certainly be unconstitutional in nature. Id. at 1292. He concluded, however, that “[t]he mere fact that § 1963 may be applied in a manner that results in an unconstitutional prior restraint does not render that section unconstitutional on its face.” Id. at 1292. This Court agrees that the mere possibility of a statutory restraint and a consequent penalty for trafficking in obscenity does not impermissibly chill the exercise of first amendment rights. Nor does the mere potential for statute-driven self-censorship comprise a constitutional infirmity. Fort Wayne Books, 489 U.S. at -, 109 S.Ct. at 926. Indeed, “[t]hose who conduct their affairs close to the boundaries of proscribed activity necessarily incur some risks.” Polykoff v. Collins, 816 F.2d 1326, 1340 (9th Cir.1987). Proper, and properly chilling, penalties for obscenity, including fines, incarceration, and other criminal sanctions, have frequently been upheld. See Fort Wayne Books, 489 U.S. at - n. 4, 109 S.Ct. at 922 n. 4 (and cases cited therein); Polykoff, 816 F.2d at 1336-40; 511 Detroit St. v. Kelley, 807 F.2d 1293, 1298 (6th Cir.1986), cert. denied, 482 U.S. 928, 107 S.Ct. 3211, 96 L.Ed.2d 698 (1987). For these reasons, this Court finds that § 1963’s pretrial restraining order authority, standing alone, is not facially unconstitutional as a prior restraint. See generally Alexander, 713 F.Supp. at 1290-1291. B. The Restraining Order, as Applied The magistrate, after recommending invalidation of 18 U.S.C. § 1963(d) on its face, recommended that this Court strike the May 30, 1989, Restraining Order, as issued, on first amendment grounds. In Fort Wayne Books, the Supreme Court emphasized procedural safeguards which must be followed prior to the seizure of obscene materials. Fort Wayne Books, 489 U.S. at -, 109 S.Ct. at 927 (citing Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961)). A seizure is permitted only if a “procedure ‘designed to focus searchingly on the question of obscenity’ ” is present. Id. at -, 109 S.Ct. at 927 (quoting Quantity of Books v. Kansas, 378 U.S. 205, 210, 84 S.Ct. 1723, 1725, 12 L.Ed.2d 809 (1964)). The Supreme Court held: [wjhile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Id. at -, 109 S.Ct. at 927. The magistrate correctly noted that the Restraining Order differs significantly from that imposed in Fort Wayne Books. Report and Recommendation, at 14. Notably, with the exception of those items seized pursuant to search warrant, there has been no actual seizure of expressive materials. The Restraining Order does not proscribe continued traffic in the specific items which have been charged as obscene in the indictment. The only items detained were those seized pursuant to warrant and held for evidence. Their duplicates, presumably, remain for sale or rental on defendants’ shelves and racks. The magistrate found, however, that the present order could be characterized as generally freezing all of defendants’ property and assets. Id. at 14-16. All parties agree that under the terms of the Restraining Order, defendants have continued to conduct their businesses— businesses they contend are almost exclusively engaged in the dissemination of first amendment protected materials. Nothing has been presented to suggest that defendants have been significantly hampered in the orderly conduct of these enterprises. The Court, however, must examine each aspect of the imposed order to determine its validity in the face of the overbreadth and prior restraint challenges. 1. Inalienability of Property and Interests in Property The Restraining Order prohibits the defendants from the sale or transfer of identified real estate, personal property, and various interests in property, absent approval of the Court. Restraining Order, HU 5, 6(b)-(d). For purposes of this analysis, the Court assumes that some of these property interests may have been secured, maintained, or derived from the sale of obscene materials. With the exception of the Court’s restraint on alienability, defendants maintain their day-to-day interests in the property and have regular control over its use. a. Overbreadth The Restraining Order, as imposed, clearly reaches beyond the scope of allegedly obscene materials. The order covers real estate, intangible interests in property, and personal property, including “video cassettes, magazines, [and] other printed materials.” Taken as a whole, this property is inextricably bound to defendants’ ability to exercise first amendment rights. The order, however, explicitly permits continuation of defendants’ ordinary course of business. Restraining Order, 11 5. The order, as fashioned, grants to defendants the use of the property in all respects save atypical transfers or sale's. In this same regard, the order does not absolutely proscribe the sale or transfer of real estate, personal property, or holdings. Such transactions may be consummated with Court approval, which approval has been granted in one instance. See Order, dated June 29, 1989. In light of actual experience, therefore, the Court finds that this aspect of the order does not impermissibly impinge upon defendants' personal exercise of free speech. Further, the order contains no provision forbidding the acquisition of new property which might, itself, be used in the exercise of free speech rights. Although the Restraining Order does extend beyond allegedly obscene materials, the Court finds that it does not burden those materials in a fashion which renders it constitutionally overbroad. b. Prior Restraint As set forth above, the Restraining Order imposes control over, rather than seizure of, property. Had the order called for the seizure of property, it may well have run afoul of the rule in Fort Wayne Books. Fort Wayne Books, 489 U.S. at -, 109 S.Ct. at 928-29. Aside from those few items seized for evidence pursuant to warrant, the remaining books, films, and videotapes have remained on defendants’ property and available for purchase. Id. at -, 109 S.Ct. at 929. Although the Restraining Order necessarily arises out of defendants’ past speech, the proscription upon sale or transfer of defendants’ real estate or the personal property contained therein does not impact upon defendants’ future speech or communication. See Near, 283 U.S. at 706, 51 S.Ct. at 627. Certain of the property touched by the order, including noncommercial and purely personal property, plays no part in defendants’ exercise of first amendment rights. As such, these items do not implicate the first amendment. 2.Performance Bond The order permits defendants to offer a performance bond in lieu of compliance with its terms. Restraining Order, ¶ 11. No such bond has been posted nor has any party challenged the provision. Therefore, the Court declines to offer any opinion as to the propriety of such a bond. 3.Bank Accounts Paragraph 6(a) of the restraining order forbids the transfer, sale, or concealment of: all money, stock certificates, property or other interest in any account, certificate or safe deposit box maintained at any main or branch office of the following financial institutions and other partnerships and other corporations, including but not limited to officers at the addresses listed herein. This restriction is subject to the provision permitting routine transactions in the ordinary course of defendants’ businesses. Restraining Order, HIT 1 and 5. a. Overbreadth The Restraining Order reaches all funds in designated institutions and, therefore, potentially touches defendants’ ability to acquire and sell protected materials. But the Court finds that the “ordinary course” provision saves the order from constitutional flaw. Books, magazines, videotapes, and films may continue to be purchased, stocked, and sold as in the past. Auxiliary property necessary for the dissemination of those goods may also be obtained. Further, there is a provision for major transactions out of the ordinary course, upon approval of the Court. As such, the order maintains the status quo. It is not impermissibly overbroad since defendants’ constitutional right to free speech are unimpeded. The Restraining Order preserves that state of affairs which allows defendants to vend protected materials, b. Prior Restraint The same “ordinary course” provision undercuts any prior restraint argument. Had the right to use funds been restrained, defendants’ ability to carry on their protected speech activities would have been significantly impeded — a result clearly at odds with the first amendment. See Fort Wayne Books, 489 U.S. at -, 109 S.Ct. at 928-29. But this has not occurred. Under these circumstances, the Court declines to strike § 1963, a provision which, on its face and in fact, permits defendants to carry on their regular business activity. The ordinary course provisions are not content based. Defendants are free to garner such inventory as they choose and dispose of it as they see fit consistent with their prior business practices. 4.Recordkeeping Paragraph four of the post-indictment restraining order mandates that: All transactions ... shall be recorded pursuant to generally accepted accounting principles and shall be evidenced by cash register slips, sales receipt journal, bank deposits, numerical invoices and order forms, disbursements, journal, checks, computer printouts, inventory lists, and any other ordinary business record. The defendants shall not use cashier’s checks, money orders, or drafts to pay for any of the ordinary business transactions or personal expenses allowed herein or use said instruments for the purpose of transferring funds. All records and documents regarding the defendants’ business transactions shall be maintained and provided to the government on a weekly basis. Restraining Order, at 114. The Court has approved, above, the portions of the order permitting defendants to proceed with activities in the ordinary course of business. Paragraph four simply records those transactions in an orderly fashion. This does not contravene the first amendment either for overbreadth or on the basis of prior restraint. a. Overbreadth Statutes which are overbroad, in a first amendment context, limit access to, or availability of, protected materials. Upper Midwest Booksellers, 780 F.2d at 1391. Mandatory recordkeeping has been subjected to overbreadth scrutiny. In American Library Association v. Thornburgh, 713 F.Supp. 469 (D.D.C.1989), the district court struck imposed recordkeeping in the context of the Child Protection and Obscenity Enforcement Act, 18 U.S.C. § 2257. The district court held that broad recordkeeping, which required movie producers to record the names and ages of all actors and actresses in their movies, was overbroad and impinged upon the producer’s ability to make otherwise protected motion pictures. Id. at 477-79. The district court examined whether the recordkeeping demands were “tailored precisely” to the evil of child pornography or whether they infringed, prohibited, or otherwise hindered the dissemination of free speech. Id. at 479. The recordkeeping provision here does not suffer from the same infirmities. The recordkeeping requirements are neither as demanding nor as broad as those stricken in American Library Association. Regular financial records are kept in the ordinary course of almost any business. The order does not require defendants to undertake any extensive procedure to comply. In the absence of any significant problems, none of which have been brought to the Court’s attention, there does not appear to be sufficient impact upon freedom of speech to warrant the relief provided in American Library Association. The recordkeeping, moreover, is “tailored precisely” to the evil sanctioned by the RICO obscenity charges. See id. at 479. The requirement simply permits the tracing of property which the grand jury asserts to be potentially forfeitable. Other than requiring order and regularity in financial transactions, the burden is minimal and does not invalidate this portion of the order. b. Prior Restraint The recordkeeping aspect of the Restraining Order is a prior restraint in only the most remote sense. The weekly reporting requirement — certainly not an ordinary business practice — potentially detracts from defendants’ available time and funds which might otherwise be available for protected speech. Yet, the order merely calls for defendants to turn over records on a weekly basis. There is no evidence of any significant burden on defendants’ businesses arising out of this procedure. Although defendants may experience some minor inconvenience complying with paragraph four, the Court declines to declare that inconvenience to be of constitutional dimension. 5. One Bank Account Paragraph eight of the Restraining Order states: All income from any source received directly or indirectly by the defendants Ferris Jacob Alexander, Dolores Alexander and Jeffrey Alexander, their agents or assigns, and by or through any of the Controlled Entities, corporations or partnerships in the ordinary course of business as defined above shall be placed in one checking account located at The Union Bank and Trust, 312 Central Avenue Southeast, Minneapolis, Minnesota and all expenses paid in the ordinary course of business as defined above including but not limited to employee salaries, inventory, supplies, utilities, rent, mortgage or contract for deed payments, insurance premiums, taxes and general overhead shall be paid out of said account. a. Overbreadth For many of the same reasons just discussed, this requirement is not impermissibly overbroad. The requirement is something of a burden merely because it is unusual. In addition, certain of the controlled entities are located outside the Twin Cities metropolitan area. The rationale underlying the provision and its actual effect mitigate against a finding of unconstitutional overbreadth. The requirement clearly provides a benefit in terms of simplicity: all of defendants’ transactions, since the date of the Restraining Order, are conducted through one account. The only restriction on use of the funds is that such use be in the ordinary course of business. There is no proscription on the accession, maintenance, or sale of any item whatsoever. In the absence of any content-based restriction, this is not an impermissibly overbroad requirement, b. Prior Restraint Since defendants’ funds remain available for acquisition and dissemination of arguably protected materials, the Court finds the single bank account requirement is not a prior restraint. The fact that some of defendants’ businesses are located at a distance from the Union Bank and Trust may incidentally complicate some transactions. See American Library Association v. Thornburgh, 713 F.Supp. at 477-79 (extensive investigative and traveling requirements may impermissibly infringement upon the exercise of protected speech). Common sense suggests, however, that many difficulties may be overcome through regular mail or telephonic correspondence. But in the absence of evidence of such difficulties, and none have been shown thus far, the operant fact remains defendants’ unrestricted access to funds regularly used to purchase and sell their wares. Defendants have expressed no difficulties in conducting business operations out of one account, and the Court stands ready to consider any adjustments which may be appropriate. Upon the information before the Court, however, paragraph eight is constitutionally sound. 6. Monitoring Paragraph nine of the restraining order provides: The Federal Government shall designate an individual with business and accounting experience to monitor the operations of the Controlled Entities as well as of the defendants’ financial affairs to ensure that the assets of said entities and persons are not dissipated or wasted in violation of this order. Said monitoring shall include but not be limited to a twice monthly review of the books and records of the Controlled Entities and the defendants. The designated individual shall be compensated by the defendants as an expense in the ordinary course of business. Restraining Order, ¶ 9. This provision has not been implemented. In the absence of any implementation, the Court expresses no thoughts on its legality. Having examined each aspect of the Restraining Order, the Court concludes that the limitations placed on defendants’ property pass constitutional muster. The Court, therefore, declines to adopt the magistrate’s recommendation to lift the Restraining Order. II. Post-trial Forfeiture The magistrate recommended that the Court declare 18 U.S.C. § 1963(a)-(c), (e), RICO’s post-trial forfeiture provisions, unconstitutional both facially and as applied. She concluded the provisions were over-broad and a prior restraint. Again, the Court addresses each question individually. A. Facial Challenge In Fort Wayne Books, the Supreme Court declined to assess the constitutionality of the Indiana RICO statute’s post-trial forfeiture section in an obscenity context. Similarly, Judge Doty did not reach the issue. Alexander v. Thornburgh, 713 F.Supp. at 1294. At least one district court, however, has upheld the constitutionality of the forfeiture provision in the face of a prior restraint challenge. United States v. Pryba, 674 F.Supp. 1504, 1512 (E.D.Va.1987). 1. Overbreadth Defendants claim RICO’s forfeiture provisions are overbroad since property, some of it clearly protected literature or video tapes, may be subject to seizure. Defendants contend this impermissibly infringes upon constitutionally protected expression. The broad language of RICO’s forfeiture provision and the consequent penalties do not impermissibly chill future expression. The Supreme Court, addressing this issue in Fort Wayne Books’ pretrial restraining order, noted: It may be true that the stiff[] RICO penalties will provide an additional deterrent to those who might otherwise sell obscene materials; perhaps this means ... that some cautious booksellers will practice self-censorship and remove first amendment protected materials from their shelves. But deterrence of the sale of obscene materials is a legitimate end of ... obscenity 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-censorship and have some inhibitory effect on the dissemination of material not obscene.” Fort Wayne Books, 489 U.S. at -, 109 S.Ct. at 925 (quoting Smith v. California, 361 U.S. 147, 154-55, 80 S.Ct. 215, 219-20, 4 L.Ed.2d 205 (1959)). As noted previously, courts have recognized that individuals and entities conducting their businesses near the edge of proscribed activity necessarily undertake some risks. Polykoff 816 F.2d at 1340. The Court, therefore, rejects the defendants’ suggestion that RICO’s forfeiture language is impermissibly threatening. Substantively, defendants claim that RICO’s forfeiture provisions exact penalties of disproportionate size. Clearly, a forfeiture is a penalty, requiring one who has been convicted to disgorge that which has been accumulated. Under RICO, it is a special penalty in that the items to be surrendered must actually have been used in, or derived from, the RICO pattern of violations. 18 U.S.C. § 1963(a)-(c), (e). Such a penalty is analogous to statutory penalties which are indisputably permissible. Certainly, the imposition of a fine following a conviction has been approved, even when the fine is greater than any traceable amount of illegally garnered assets. Polykoff, 816 F.2d at 1339; 511 Detroit, 807 F.2d at 1299; see Alexander, 713 F.Supp. at 1289. More importantly, RICO guarantees an equivalence between the forfeiture of assets and the criminal acts Congress sought to proscribe when it passed RICO: that which is to be given up in forfeit is the product and profit of the RICO offense. In other words, property or assets garnered as a result of proscribed activity is that which is to be surrendered as a partial penalty. The fairness of this scheme is assured by the fact that a jury must call for its surrender upon proof beyond a reasonable doubt. Pryba, 674 F.Supp. at 1521. Of course, even in the absence of any forfeiture, the same funds and assets could be lost to defendants pursuant to the general fine statute. The issue is that each penalty, whether fine or forfeiture, may possibly deprive defendants of the means to continue disseminating protected materials — and the public could lose access to items which are in no way illegal or obscene. Realistically, bookstores, theaters, and places of public discourse have faced regulation and possible seizure before. While the issue has never been squarely addressed, it does not appear that closure based upon a fire code violation or health hazard would present problems of over-breadth. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 705-07, 106 S.Ct. 3172, 3176-77, 92 L.Ed.2d 568 (1986). Similarly, the indictment before the Court charges a tax violation which, if upheld after trial, could call for substantial payment of amounts owing. The taxes and penalties, as well as any fine amount, could touch on protected assets in the event of seizure or sale. The Court is disinclined to strike a statutory penalty, which may otherwise be lawfully imposed, simply because defendants have been charged with violating the RICO obscenity provisions or because the res to be surrendered has a speech or first amendment flavor. It is clear that the Supreme Court has found obscenity to be without first amendment protection. See Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973). Some publications or video materials may fall on one side or the other of the protected speech/proscribed obscenity line. But the law defines a point over which one travels at his hazard. The mere fact that there is a penalty for going beyond that point does not bar a dollar penalty, either by fine or forfeiture. 2. Prior Restraint For many of the same reasons, the forfeiture provisions of 18 U.S.C. § 1963(a)-(e), (e) do not impermissibly restrain free speech. Unlike administrative actions, such as movie censorship, Freedman, 380 U.S. at 58, 85 S.Ct. at 738-39, and license revocation, City of Paducah v. Investment Entertainment, Inc., 791 F.2d 463, 470 (6th Cir.), cert. denied, 479 U.S. 915, 107 S.Ct. 316, 93 L.Ed.2d 290 (1986), which may not be undertaken without procedural safeguards, RICO’s forfeiture is only possible after a full trial. At trial, the jury must find, beyond a reasonable doubt, that the property to be forfeited was connected to the illegal activity. Pryba, 674 F.Supp. at 1521. In the same sense that a dollar fine presents no prior restraint problems, Polykoff, 816 F.2d at 1338, and 511 Detroit St, Inc., 807 F.2d at 1298, the forfeiture of assets does not impermissibly hamper defendants’ ability to speak in the future. As above, a fine can lawfully be imposed in an amount far beyond a defendant’s assets. Under RICO, and the companion tax charge in this indictment, the defendants face substantial fines. The possibility of dollar loss, then, will be present even in the absence of forfeiture. Any penalty, by fine or forfeiture, is imposed only after trial and not before. “Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law [rather] than to throttle them and all others beforehand.” Southeastern Pro motions Ltd. v. Conrad, 420 U.S. at 558-59, 95 S.Ct. at 1246-47 (emphasis original). This policy is completely consistent with Near and its progeny. Post conviction forfeiture necessarily deprives a defendant of assets garnered in the past. There is no necessary impact on expressive activity in the future. American Library Association, 713 F.Supp at 486. The fact that criminal punishment— whether it is by fine, incarceration, etc.— makes it physically difficult for the person to engage in First Amendment activity does not make the punishment unlawful “prior restraint,” as long as the person legally is unrestrained to engage in speech. Id. at 486 n. 21. Deterrence is a goal of RICO, and forfeiture plays a role in that objective. This chill, if it is that at all, is a “legitimate consequence of the RICO forfeiture provisions or any other criminal penalty.” Pryba, 674 F.Supp. at 1512. Defendants object to the RICO forfeiture penalties. In their view, obscenity simply cannot be made a crime without jeopardizing first amendment freedoms. Defendants confuse sincerity of belief with adherence to the rule of law. This way lies anarchy. The Supreme Court has held that obscenity may be criminalized consistent with our Constitution. See, e.g., Ferber, 458 U.S. at 764-65, 102 S.Ct. at 3358; Smith v. United States, 431 U.S. 291, 304-05, 97 S.Ct. 1756, 1765-66, 52 L.Ed.2d 324 (1977); Miller, 413 U.S. at 23-24, 93 S.Ct. at 2614-15. As such, this Court, and the law, treats an obscenity charge the same as any other criminal charge, be it bank robbery, narcotics trafficking, or firearm violations. Were a defendant to be convicted of operating a drug ring out of a bookstore, the first amendment would not prevent seizure of that store, if the requisite nexus was proven. This Court will follow the law, and declines the invitation to strike RICO forfeiture provisions in an obscenity case as a prior restraint. B. As Applied Challenge The Court, therefore, concludes that, on its face, § 1963 forfeiture may be imposed, in an obscenity context, consistent with the Constitution. The actual forfeiture of property, however, has yet to take place. Defendants’ first line of defense is the jury. Until the jury renders its verdict, the Court will refrain from rendering a decision on this forfeiture, as applied. Accordingly, the Court adopts the Report and Recommendation dated September 30, 1989, in all respects except parts 1, 2, 4, and 5. As to those parts, defendants’ motion to hold the forfeiture and restraining order provisions of 18 U.S.C. § 1963 unconstitutional is denied. Defendants’ motion to strike the Restraining Order of May 30, 1989, and the forfeiture provisions of the indictment is also denied. The Court adopts in full the Report and Recommendation issued by the Honorable Patrick J. McNulty, dated November 29, 1989. Having considered the magistrates’ Reports and Recommendations, the Court now turns to Magistrate Symchych’s Pretrial Order issued September 30, 1989. Defendants individually or collectively object to parts 4, 6, 9, and 12 of the order. The government objects to parts 4, 12, and 15. Unlike a report and recommendation, a magistrate’s order may be disturbed by this Court only upon a showing that the order was clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Rule 72(a), Federal Rules of Civil Procedure; Local Rule 16(B)(2). Based upon a review of the record, with this standard in mind, the Court affirms the order dated September 30, 1989, except as to paragraph 12, and modifies paragraph 15 to clarify the government’s responsibility. In part 12 of her order, the magistrate granted defendants’ motion for early disclosure of Jencks Act, 18 U.S.C. § 3500, materials, requiring such production “10 calendar days prior to trial.” The Court finds the magistrate’s order is contrary to law. 28 U.S.C. § 636(b)(1)(A); Rule 72(a), Federal Rules of Civil Procedure; Local Rule 16(B)(2). Rule 16(a)(2), Federal Rules of Criminal Procedure, specifically excludes statements made by government witnesses from pretrial discovery, except as provided in the Jencks Act. The Jencks Act states in relevant part: In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. 18 U.S.C. § 3500(a). This language has been interpreted according to its terms. Although the government may disclose Jencks Act material to a defendant in advance of trial, the government may not be required to do so. United States v. White, 750 F.2d 726, 728-29 (8th Cir.1984); see United States v. Collins, 652 F.2d 735, 738 (8th Cir.1981), cert. denied, 455 U.S. 906, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982). This Court may not compel pretrial disclosure over government objection. White, 750 F.2d at 728-29; United States v. Algie, 667 F.2d 569, 571 (6th Cir.1982) (and cases cited therein); United States v. Jones, 678 F.Supp. 1302, 1303 (S.D.Ohio 1988); United States v. Greater Syracuse Board of Realtors, 438 F.Supp. 376, 383 (N.D.N.Y.1977). Part 12 of the order is reversed and defendants will receive Jencks Act materials as provided by law. In part 15 of the Pretrial Order, the magistrate granted defendants’ motion for disclosure of government agreements with witnesses. The government shall disclose said agreements on January 26, 1990. In all other regards, the Pretrial Order of September 30, 1989, is affirmed. IT IS SO ORDERED. APPENDIX A Magistrate Symchych’s Recommendations September 30, 1989 1. Defendants’ motion to find the forfeiture provisions of 18 U.S.C. § 1963, when applied to a prosecution based on predicate offenses of obscenity, to be unconstitutional under the First Amendment be GRANTED; 2. Defendants’ motion to find the pretrial restraining order provisions of 18 U.S.C. § 1963, when applied to a prosecution based on predicate offenses of obscenity, to be unconstitutional under the First Amendment be GRANTED; 3. Defendants’ motion to dismiss Counts VI, VII, and VIII of the indictment on the foregoing grounds be DENIED; 4. The forfeiture provisions of the indictment be dismissed with prejudice; 5. The pretrial restraining order presently in effect be vacated, and any sum expended by defendants for its monitoring be restored to them within thirty days hereof, or upon any order of the trial court sustaining this recommendation; 6. Defendants’ motions to otherwise find the RICO statute, when applied to a prosecution based upon predicate offenses of obscenity, unconstitutional under the First Amendment be DENIED; 7. Defendants’ motions to find the RICO statute, as applied to a prosecution based upon predicate offenses of obscenity, to be unconstitutional in violation of the Ex Post Facto Clause be DENIED; 8. Defendants’ motions to find the obscenity standard underlying the charged RICO predicate offenses and the offenses charged pursuant to 18 U.S.C. §§ 1465 and 1466, unconstitutional under the First Amendment be DENIED; 9. Defendants’ motion to dismiss the indictment on grounds of equitable estoppel be DENIED; 10. Defendants’ motion to dismiss the counts alleged under §§ 1465 and 1466 on grounds of temporal remoteness be DENIED; 11. Defendants’ motion for leave to present an affirmative defense that he in good-faith mistakenly believed the materials in issue not to be obscene be DENIED; 12. Defendants’ motion to dismiss Count I of the indictment on grounds of duplicity be DENIED; 13. Defendants’ motion to dismiss Count I of the indictment on grounds of irreparable harm to the Sixth Amendment right to counsel and interference with the attorney-client privilege be DENIED; 14. Defendants’ motion to dismiss Count I of the indictment on the grounds that it is properly chargeable only as a conspiracy to violate 26 U.S.C. § 7206(1) be DENIED; 15. Defendants’ motion to dismiss the indictment on grounds of prosecutorial misconduct before the grand jury be DENIED; 16. Defendants’ motion to suppress evidence obtained by search and seizure be, until such time as the matter is briefed and heard, TAKEN UNDER ADVISEMENT; 17. Defendants’ motion to suppress statements, including the product of electronic surveillance, be DENIED; and 18. Defendants’ motion to suppress trial testimony of witness Robert Milavetz be DENIED. APPENDIX B Magistrate Symchych’s Order September 30, 1989 1. Defendants’ briefs regarding the motion to suppress evidence obtained by search and seizure shall be submitted to United States Magistrate Patrick McNulty, and served on the United States, no later than October 20, 1989, with no further leave for extension; 2. The government’s responsive brief regarding the motion to suppress evidence obtained by search and seizure shall be submitted and served no later than October 27, 1989; 3. Hearing on the motion to suppress evidence obtained by search and seizure, including all testimony and argument, is set for 10:00 a.m., November 14, 1989, before United States Magistrate Patrick McNulty in Room 530 United States Courthouse at 110 South Fourth Street in Minneapolis, Minnesota. All counsel and parties shall be present; 4. Defendant Tigue's motion for severance and separate trial from the remaining defendants is granted; 5. Trial of the remaining defendants shall proceed prior to trail of defendant Tigue, to ensure that the trial of defendant Ferris Alexander, Sr. has concluded prior to any proposed use by defendant Tigue of materials deriving from their attorney-client relationship; 6. Defendants’ motion to sever the tax-related counts of the indictment from the RICO and obscenity-related counts is DENIED; 7. Defendants’ motions for severance from one another for trial, with the exception of defendant Tigue, are DENIED; 8. Defendants’ motion for James hearing regarding Count I of the indictment is DENIED; 9. Defendants’ motion for disclosure of grand jury materials is DENIED; 10. Defendants’ motion for disclosure of confidential informers is DENIED; 11. Defendants' motion for a list of government witnesses is DENIED; 12. Defendants’ motion for pretrial disclosure of Jencks Act materials, to the extent that the government shall produce said materials 10 calendar days prior to trial, is GRANTED; 13. Defendants’ motion to require government agents to retain rough notes is GRANTED; 14. Defendants’ motions for discovery of Rule 16 and exculpatory materials, to the extent they cover information within the scope of FRCrP 16 and Brady v. Maryland and its progeny, are GRANTED; 15. Defendants' motion for disclosure of government agreements with witnesses are GRANTED; 16. Defendants’ motion for notice of intent to utilize 404(b) evidence is DENIED; 17. Defendants’ motion for a bill of particulars is DENIED; 18. Defendants’ motions relating to jury selection, including the number of peremptory challenges, the degree of information to be disclosed regarding prosepctive [sic] jurors, and the method of voir dire, are RESERVED FOR THE TRIAL COURT. APPENDIX C Magistrate McNulty’s Recommendations November 29, 1989 1. That the Court enter an Order denying all motions by defendants for orders suppressing evidence. 2. That the Court enter an Order directing the United States Attorney to immediately destroy all copies of the magazine title Freier Leben and all of the material seized in execution of Search Warrant No. 88-553 as disclosed on the receipt attached thereto. APPENDIX D REPORT & RECOMMENDATION AND ORDER The indictment in this matter, set forth in 79 pages and 43 separate counts, alleges a longstanding criminal obscenity racketeering enterprise, in violation of the federal RICO statute, a 20-year criminal conspiracy to defraud the United States by impairing and impeding the Internal Revenue Service, numerous substantive federal obscenity violations, and substantive tax violations. As gleaned from the face of the indictment, the government contends that defendant Ferris Alexander, Sr., has, for those 20 years, engaged in a livelihood of purveying pornographic materials, and in the course of doing so, has both concealed his identity and hidden the proceeds of that livelihood, all for criminal purposes. It alleges that the other defendants, in a variety of roles and times, have assisted him in that criminal conduct. The codefendants include his wife, son, bookkeeper, and attorney of some 15 years. The defendants have filed a large number of pretrial motions, including serious constitutional challenges to the use of the RICO statute in conjunction with predicate offenses of obscenity, and other First Amendment impediments to the prosecution of this matter. Additionally, defendants challenge the conspiracy count of the indictment as pleaded, raise issues about the application of the attorney-client and spousal privileges in this case, challenge the propriety of the grand jury proceedings, and seek suppression of items seized pursuant to warrant. In addition, numerous discovery-related motions have been made; motions for severance of defendants and counts are also pending. Other motions are also pending, and are resolved below. PROCEDURAL HISTORY Eighty-seven search warrants were authorized between May 9 and 11, 1988, by United States Magistrate Floyd Boline. The United States grand jury sat on this matter from March, 1988, until May 30, 1989, when it returned its indictment. An ex parte post-indictment restraining order, pursuant to 18 U.S.C. § 1963(d)(1)(A), was entered that same date, and later amended on June 29, 1989. Defendants first appeared on May 31, 1989. Orders extending the pretrial and trial schedules were entered both on June 16, 1989 and August 9, 1989, after the case was designated as complex pursuant to the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A). Pursuant to these scheduling orders, the parties were to file any and all pretrial motions by July 28, 1989, with hearing set for August 8, 1989. Motions were filed by all defendants in accordance with that deadline, and each appeared with counsel for hearing on August 8, 1989, except defendant Tigue, who appeared pro se. Defendant Ferris Alexander was then represented by Douglas Thomson, Esq. and Neal Shapiro, Esq. Defendant Dolores Alexander was represented by Jack Nordby, Esq., of the firm of Meshbesher, Singer & Spence. Defendant Wanda Magnuson was represented by David Roston, Esq., and defendant Jeffrey Alexander was represented by Joseph Friedberg, Esq. The United States was represented by Assistant United States Attorneys Paul Murphy and Mary Carlson. At the conclusion of the hearing on that date, it was ordered that the government submit, in camera, the transcripts of all grand jury proceedings in the matter. That has been accomplished, and those transcripts are in possession of the court. In addition, it was then ordered that by August 9, 1989, each defendant lodge with the court his or her itemized objections to the Tigue affidavit, previously filed on July 28,1989. That affidavit was orally ordered to then be placed under seal, for review only by the court, as it may bear on disposition of pretrial motions. Defendants submitted those objections. The affidavit remains under seal. In addition, each defendant was ordered, by August 9, to submit an itemization of which motions he or she was joining, including itemization of which search warrants were objected to by each. The latter has not been done. Last, defendants’ briefs were ordered to be submitted by August 21, 1989, and the government’s by August 28, 1989. The court orally outlined issues required to be briefed, so that the parties’ specific legal arguments would be before the court. Those included all First Amendment issues, all search and seizure issues, including specific alleged defects in each warrant, all grand jury issues, privilege questions, and all severance matters. Oral argument on the matters briefed was set for September 6, 1989. On August 16, 1989, counsel for defendants Ferris Alexander, Dolores Alexander, and Jeffrey Alexander moved to withdraw. On September 12, 1989, substitutions of counsel were filed by Robert Smith, Esq. and David Forro, Esq., for Ferris Alexander, and Michael McGlennen, Esq. for Dolores Alexander. Counsel for Jeffrey Alexander withdrew his motion to withdraw. A short period was allowed for new counsel to review the briefs submitted on behalf of their clients by prior counsel, and oral argument was set for September 25, 1989. Counsel assumed representation after an admonishment that the pretrial proceedings had been earlier extended on two occasions, and that generous periods had been allowed for consideration, preparation and filing of pretrial motions, and for trial preparation, and that further extensions were deemed unwarranted by the court. All agreed to assume representation under those circumstances. Counsel for each of the defendants appeared on September 25, 1989 for oral argument, as did each defendant except Jeffrey Alexander. The court required of him a sworn written waiver of appearance, which must be filed. Defendant Tigue appeared pro se. Counsel for the government appeared. All parties made oral argument. In addition, defense counsel sought leave to file further memoranda of law and to make new challenges to the 87 search warrants, on the basis that earlier counsel had failed to do so. In addition, there is pending the motion of the Minnesota Civil Liberties Union for leave to appear as amicus curiae regarding the indictment of and severance issues pertaining to defendant Tigue. The court has before it the indictment, the 87 search warrants, the grand jury transcripts in camera, the transcript of proceedings before Senior United States District Judge Edward Devitt regarding Robert Milavetz in camera, the affidavit of defendant Tigue in camera, the testimony of record, and the briefs of the parties. The majority of the motions are susceptible of decision on the law, and on the face of the indictment. To the extent that findings of fact are necessary to the resolution of a motion, those findings are discussed in the relevant subpart of this Report and Recommendation. I. FIRST AMENDMENT CHALLENGES A. RICO Defendants seek dismissal of Counts VI, VII and VIII of the indictment, as well as the forfeiture provision of the indictment on several First Amendment grounds. They allege that, as applied to predicate conduct consisting solely of obscenity offenses, RICO is unconstitutionally over-broad because it both chills presumptively protected First Amendment activity, and operates as a prior restraint on such activity. Defendants also expressly challenge the pretrial restraining order and postconviction forfeiture provisions of RICO as a prior restraint in derogation of the First Amendment. As in Fort Wayne Books, Inc., many of defendants’ constitutional attacks on the indictment, including its RICO counts, more accurately implicate the validity of the federal obscenity laws, than they do RICO. To the extent that is the case, this court firmly recognizes, as discussed in the next subpart of this Report and Recommendation, that obscenity does not fall within the zone of constitutionally protected speech. In fact, it is legitimately subject to the criminal enforcement powers of the government. The focused question here, then, is whether the employment of obscenity predicates in the content of a RICO prosecution unconstitutionally touches the exercise of separate and legitimate First Amendment activity. There is, in light of Fort Wayne Books, no longer a real question whether RICO may legitimately include the unprotected area of obscenity. When the pretrial restraining order and post-conviction forfeiture provisions of RICO are examined with care, it becomes clear that this is a serious issue, of significant constitutional magnitude. Because such a pretrial restraining order is in place here, and because the forfeiture provisions are invoked in the indictment, it is appropriate to consider the problem both as it exists facially, on the statute, and in its application, to this case. Of course, well established principles of constitutional construction dictate that if a statute may be construed to be enforceable in a manner consistent with the Constitution, that it should not be struck down on its face. United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Irving v. Clark, 758 F.2d 1260, 1263 (8th Cir.1985), aff'd, 481 U.S. 704, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987); and Turchick v. United States, 561 F.2d 719, 723 (8th Cir.1977). The court is mindful that in reviewing a statute’s facial validity, pre-existing constitutional requirements should be impliedly read into the words of the statute, when it is reasonably possible to do so. Cf. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Time Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). Even with these precepts in the forefront, it is the conclusion of this court that the RICO pretrial restraining order and post-conviction forfeiture provisions, when employed with predicate offenses of obscenity, are both facially unconstitutional, as well as unconstitutional in their application in this case. They are overbroad, and also constitute prior restraints of legitimate First Amendment activity. This analysis must begin with a reaffirmation of the unflagging protection afforded by our Constitution to the robust exchange of ideas in our polity, and its avowed contribution to our national strength and diversity. New York Times v. Sullivan, 376 U.S. 254, 269-270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964); Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215-216, 13 L.Ed.2d 125 (1964). The underpinnings of these First Amendment values are so potent as to result in a legal presumption that the exchange of ideas is constitutionally protected. This presumptive zone of First Amendment activity is well-established in our jurisprudence, and recently confirmed. Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957); Thornhill v. Alabama, 310 U.S. 88, 101-02, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940); Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J. joined by Holmes, J. concurring); Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J. dissenting); and Fort Wayne Books, Inc., 109 S.Ct. at 929. . 1. Overbreadth Although a statute may legitimately exist to regulate and punish unprotected expressive activity, e.g. New York Times, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; (libel), Gertz v. Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); and Drotzmanns, Inc. v. McGraw-Hill, Inc., 500 F.2d 830 (8th Cir.1974); (“fighting words”), Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), and Harisiades v. Shaughnessy, 342 U.S. 580, 591-92, 72 S.Ct. 512, 520, 96 L.Ed. 586 (1952) (advocating violent overthrow of the government); Hammond v. Adkisson, 536 F.2d 237, 239 (8th Cir.1976); (obscenity), Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); and United States v. Freeman, 808 F.2d 1290 (8th Cir.), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987), it may not, at the same time, reach out to touch or encompass these presumptively protected First Amendment activities. If it does, it is unconstitutionally overbroad. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); and Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389, 1391-92 (8th Cir.1985). Defendants argue that the restraining order provisions and post-conviction forfeiture provisions of RICO do just that, when employed in an obscenity context. The Supreme Court did not address the constitutionality of the RICO forfeiture provisions in this context in Fort Wayne Books, Inc. because none of the cases then before it involved such a forfeiture. Id. 109 S.Ct. at 928 n. 11. Although it struck down, as a prior restraint, a pretrial seizure of three bookstores and their contents, the Court did not address the use of a restraining order, such as the one entered in this matter. In Alexander v. Thornburgh, the court did not reach the constitutionality of the forfeiture provisions under the prior restraint doctrine. 713 F.Supp. at 1294. It did uphold the facial validity of those provisions, however, against an overbreadth challenge. Id. at 1289. The forfeiture provisions in issue here are set forth at 18 U.S.C. § 1963(a), (b), (c). Upon conviction, the sentencing court is mandated to order the statutory forfeiture, which is not limited to those assets tainted by the racketeering activity. Instead, the forfeiture applies to the defendant’s entire interest in — any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of, in violation of Section 1962; and (18 U.S.C. § 1963(a)(2)) — any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity ... in violation of Section 1962. (18 U.S.C. § 1963(a)(3)). The parties here, and the courts reviewing these forfeiture provisions, have commonly understood them to include business and property of the convicted person, even if a portion of that business or property entails or is attributable to legitimate business operations. Eg. United States v. Busker, 817 F.2d 1409 (9th Cir.1987); and Alexander v. Thornburgh, 713 F.Supp. at 12