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SEQUOIA BOOKS, INC. v. INGEMUNSON

June 1, 1989

SEQUOIA BOOKS, INC., an Illinois corporation, d/b/a Denmark II, Plaintiff,
v.
DALLAS INGEMUNSON, in his capacity as State's Attorney of KENDALL COUNTY, ILLINOIS, a body politic, and the PEOPLE OF THE STATE OF ILLINOIS, Defendants


Charles P. Kocoras, United States District Judge.


The opinion of the court was delivered by: KOCORAS

CHARLES P. KOCORAS, UNITED STATES DISTRICT JUDGE:

 This case comes before the Court on Defendants' Motion to Dismiss. For the following reasons, Defendants' Motion is granted.

 DISCUSSION

 The issue raised in this motion is whether the Forfeiture Provision of the Illinois Criminal Obscenity Statute is constitutional under the First and Fourth Amendments to the United States' Constitution. The Forfeiture Provision provides in pertinent part:

 
(3) Any person who has been convicted previously of the offense of obscenity and who shall be convicted of a second or subsequent offense of obscenity shall forfeit to the State of Illinois:
 
(i) Any property constituting or derived from any proceeds such person obtained directly or indirectly, as a result of such offense; and
 
(ii) Any of the person's property used in any manner, wholly or in part, to commit such offense.
 
(4) Forfeiture Hearing. At any time following a second or subsequent conviction for obscenity, the court shall, upon petition by the Attorney General or the State's Attorney, conduct a hearing to determine whether there is any property that is subject to forfeiture as provided hereunder. At the forfeiture hearing the People shall have the burden of establishing by preponderance of the evidence that such property is subject to forfeiture.
 
(5) Prior Restraint.
 
Nothing in this subsection shall be construed as authorizing the prior restraint of any showing performance or exhibition of allegedly obscene films, plays or other presentations or of any sale or distribution of allegedly obscene materials.

 I. First Amendment Challenge

 The plaintiff maintains that the Forfeiture Provision at issue is facially invalid because it operates as an impermissible prior restraint which under the First Amendment is subject to the middle-level of scrutiny enunicated in United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968). The plaintiff argues that the Forfeiture Provision acts as a prior restraint because it may adversely affect plaintiff's right to sell protected speech in the future by forcing plaintiff to forfeit such protected speech. The defendants, relying on Arcara v. Cloud Books, Inc., 478 U.S. 697, 92 L. Ed. 2d 568, 106 S. Ct. 3172 (1986), argue that the Forfeiture Provision is a subsequent punishment, not a prior restraint, and thus, any First Amendment analysis is inappropriate. We hold that defendants' position is most correctly in line with United States Supreme Court precedent and other recent case law.

 In United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), the Court found that where speech and nonspeech elements are combined in the same course of conduct, State regulation of such conduct is justified if "it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id. at 376-77. The Supreme Court then determined that this test was applicable to a ...


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