dissenting in part:
It is axiomatic that Article III of the Constitution commands that federal courts decide only actual “cases or controversies,” and not render opinions about “abstract questions.” But as the Supreme Court acknowledges, “[t]he difference between an abstract question and a ‘case or controversy’ is one of degree, ... and is not discernible by any precise test.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979). Because I believe the majority erroneously concludes that all of the plaintiffs’ challenges to forfeiture provisions of the Child Protection and Obscenity Enforcement Act (“Act”) fall on the “abstract question” side of the justiciability line, I respectfully dissent.1 For the reasons discussed below, I find that the plaintiffs’ challenges to the pretrial seizure provisions of the Act are justiciable. Furthermore, I believe that the district court correctly concluded that the sections of the Act that authorize pretrial seizure of expressive material based on an ex parte showing of probable cause are unconstitutional. See American Library Ass’n v. Thornburgh, 713 F.Supp. 469 (D.D.C.1989). Unlike the district court, however, I would reject the plaintiffs’ facial challenge to the section authorizing a pretrial restraining order to preserve assets subject to post-conviction forfeiture.
I. STATUTORY SCHEME
The plaintiffs, major producers and distributors of expressive material, some of which is sexually-oriented, challenge the constitutionality of the two criminal forfeiture sections of the Act that authorize the pretrial seizure and post-conviction forfeiture of the property of persons who produce or distribute obscenity or child pornography. See 18 U.S.C. § 1467 (criminal forfeiture for obscenity offenses); id. § 2253 (criminal forfeiture for child pornography offenses). In addition, plaintiffs challenge the constitutionality of a third section that authorizes pretrial seizure and civil forfeiture of the property of persons who produce or distribute child pornography. See 18 U.S.C. § 2254. All of these statutes authorize the pretrial seizure and *1200post-conviction forfeiture of three categories of property: (1) expressive materials that are obscene or contain child pornography {i.e., “contraband forfeiture”), see 18 U.S.C. §§ 1467(a)(1), 2253(a)(1), 2254(a)(1); (2) “any property, real or personal, used or intended to be used to commit or to promote the commission of such offense” {i.e., “use forfeiture”), see 18 U.S.C. §§ 1467(a)(3), 2253(a)(3), 2254(a)(2); and (3) “any property, real or personal, constituting or traceable to gross profits or other proceeds obtained from such offense” {i.e., “proceeds forfeiture”), see 18 U.S.C. §§ 1467(a)(2), 2253(a)(2), 2254(a)(3).
The two criminal statutes authorize the pretrial seizure of this property pursuant to a warrant issued upon a finding of probable cause to believe that, in the event of conviction, the property would be subject to forfeiture. 18 U.S.C. §§ 1467(d), 2253(d). Instead of seizure, the government may also obtain an ex parte temporary restraining order or injunction “to preserve the availability of” the property subject to post-conviction forfeiture. 18 U.S.C. §§ 1467(c), 2253(c). After conviction, the criminal statutes authorize the forfeiture of the three types of property described above if the “trier of fact determines, beyond a reasonable doubt, that such property is subject to forfeiture.” Id. §§ 1467(e)(1), 2253(e).
The civil statute similarly authorizes pretrial seizure and subsequent forfeiture of the three types of property described above, although the procedure is slightly different. The civil statute authorizes pretrial seizure “when the seizure is pursuant to a search under a search warrant or incident to an arrest." 18 U.S.C. § 2254(b). It also authorizes pretrial seizure and subsequent forfeiture pursuant to the customs laws and Admiralty Rules. Id. § 2254(b), (d). Thus, as the district court explained, the government may, pursuant to Admiralty Rule C(3), file “an ex parte complaint with the clerk of the [district] court, who may in turn issue the warrant without referring the matter to a judge or magistrate.” American Library Ass’n, 713 F.Supp. at 484. If the value of the merchandise seized does not exceed $500,000, the government may destroy it unless the owner initiates legal proceedings for its return. See 19 U.S.C. §§ 1607-09 (customs laws for seizure and forfeiture); American Library Ass’n, 713 F.Supp. at 485. If the value of the merchandise seized is greater than $500,000, the government has five years to initiate a judicial proceeding to determine if it is subject to permanent forfeiture. See 19 U.S.C. § 1621; American Library Ass’n, 713 F.Supp. at 485.
In this case, the plaintiffs challenge the post-conviction use forfeiture provisions, alleging that they constitute an unlawful prior restraint and that they produce an unconstitutional chill on the first amendment right to publish protected materials. The plaintiffs also challenge the pretrial seizure provisions, claiming that the first amendment prohibits the government from seizing their property before there has been a judicial determination that they are producing or distributing unprotected obscenity or child pornography.
II. JUSTICIABILITY
To challenge the constitutionality of a statute in federal court, the plaintiffs must allege that the statute will cause them some “threatened or actual injury.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). But it is well-established that “[o]ne does not have to await the consummation of threatened injury to obtain preventive relief.” Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308 (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923)). Thus, plaintiffs who claim that a criminal statute deters the exercise of their constitutional rights need not expose themselves to arrest and prosecution to be entitled to challenge that statute. Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974). Instead, they may bring a pre-enforcement challenge to such a statute if there is a “credible threat,” not “imaginary or speculative,” that the statute will be enforced against them. See Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308; Younger v. Harris, *1201401 U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971).
Nevertheless, the majority correctly recognizes that, as a prudential matter, a court may decide that the constitutional questions raised by a statute would be clearer after the statute has been enforced against a particular person and that any harm occasioned by delaying adjudication until the statute has been enforced is outweighed by the interest in avoiding constitutional adjudication. But it is also well-established that prudential concerns of avoiding constitutional adjudication carry substantially less weight in the first amendment context. See Secretary of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984); Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630, 634 (7th Cir.), cert. denied, — U.S. -, 111 S.Ct. 387, 112 L.Ed.2d 398 (1990). Particularly if the statute may cause the plaintiffs to censor their own speech — “a harm that can be realized even without an actual prosecution” — a court may entertain a pre-enforcement challenge to the statute as long as the “plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them.” Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988); Sequoia Books, 901 F.2d at 634.2
Applying that test to the facts of this case, I agree that the plaintiffs’ challenge to the post-conviction use forfeiture provisions is not ripe for review at this time. The plaintiffs can be subject to post-conviction forfeiture only if they are first convicted of an obscenity or child pornography offense and the trier of fact determines, beyond a reasonable doubt, that their property is subject to forfeiture. In some instances particular plaintiffs might be able to demonstrate that, even before the commencement of an obscenity prosecution, they reasonably fear post-conviction forfeiture. See, e.g., Sequoia Books, 901 F.2d at 633-34 (entertaining pre-enforcement challenge to state post-conviction forfeiture statute brought by adult bookstore that had previously been convicted of violations of state obscenity law; even though application of the forfeiture provisions depended “upon at least one further obscenity conviction and the holding of a forfeiture hearing,” the bookstore had a “well-founded” fear that the provisions would be enforced against it). But it is difficult to see how these plaintiffs can reasonably fear such an eventuality since the record does not indicate that they (or any other producer or distributor of similar materials) have previously been prosecuted or convicted for violating the federal obscenity and child pornography laws and any forfeiture order would have to follow a full-scale trial on all factual and constitutional issues.3
*1202On the other hand, I think the plaintiffs’ challenges to the pretrial seizure provisions are ripe. As noted above, plaintiffs produce and distribute sexually-oriented materials. Although they believe that none of these sexually-oriented materials are obscene or contain child pornography, they realize that because the line between protected sexually-oriented materials and unprotected obscenity is “dim and uncertain,” see Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963), prosecutors may disagree with their judgment calls. By definition, plaintiffs can be subject to pretrial seizure before a court has determined that plaintiffs have produced or distributed child pornography or obscenity. More importantly, the government may obtain a warrant authorizing pretrial seizure of plaintiffs’ property based on nothing more than an ex parte showing of probable cause to believe the plaintiffs have produced or sold material in violation of the obscenity or child pornography laws. See 18 U.S.C. § 2254(b), (d); id. § 1467(d); id. § 2253(d). Because plaintiffs admit they produce and distribute materials that could possibly be thought to violate the obscenity or child pornography laws,4 and because the government can seize the plaintiffs’ property before there has been a determination, after an adversarial hearing, that the plaintiffs have violated these laws and that their property is subject to forfeiture, I think the plaintiffs’ fears of pretrial seizure are reasonable.
In rejecting the challenge to pretrial seizure, the majority relies on several facts, which, in my opinion, do not make plaintiffs’ fear of pretrial seizure unreasonable or imaginary. First, the majority notes that the plaintiffs claim that they do not produce or distribute obscenity or child pornography. In addition, they cite the record as containing no evidence indicating that any of the plaintiffs have been prosecuted for violating the federal obscenity or child pornography statutes. Thus, the majority concludes, the plaintiffs cannot have an actual and well-founded fear of pretrial seizure because only those who produce or distribute unprotected material can reasonably fear application of the pretrial seizure provisions. I disagree.
The argument that the plaintiffs cannot have an actual fear of prosecution because they do not intend to violate the law is only sound if the line between that which is legal and that which is illegal is clear. In *1203the case of obscenity and child pornography, it is not. The state may constitutionally prohibit as “obscene” works that, taken as a whole, “the average person, applying contemporary community standards” would find to appeal to the “prurient interest,” and to “lack[] serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973) (internal quotations omitted). The federal child pornography statute prohibits the visual depiction of a minor engaging in “sexually explicit conduct,” which includes any “lascivious exhibition of the genitals or pubic area.” 18 U.S.C. §§ 2251, 2256(2)(E). Given the elasticity of terms like “prurient interest” and “lascivious,” it is not unreasonable for the plaintiffs to fear that a federal prosecutor may believe that some of the sexually-oriented materials they distribute are unprotected and subject to immediate seizure. Cf. PHE, Inc. v. Department of Justice, 743 F.Supp. 15, 17 (D.D.C.1990) (retail distributors of sexually-oriented magazines and videotapes were threatened with federal obscenity prosecution in multiple districts throughout the country notwithstanding the fact that they “utilize[d] internal review procedures to guarantee that the materials they distribute do not violate the law”); see also Babbitt, 442 U.S. at 301-02, 99 S.Ct. at 2310 (entertaining pre-enforcement facial challenge to statute making it a crime to use deceptive publicity to discourage consumption of agricultural products even though the union that brought the suit disavowed any intent to propagate untruths in its consumer boycott campaigns; because “erroneous statement is inevitable in free debate,” the union is “not without some reason in fearing prosecution for violation of the ban on specified forms of consumer publicity”).
The fact that some of plaintiffs’ members have been prosecuted and threatened with prosecution for violation of state obscenity laws is further indication that the plaintiffs’ fear of pretrial seizure is reasonable and well-founded. See Declaration of Maxwell J. Lillienstein, General Counsel to the American Booksellers Ass’n, Inc., (formal criminal obscenity charges have been filed against at least two members of the American Booksellers Ass’n in the last several years, and others have been threatened with prosecution for selling Playboy and Penthouse); see also Declaration of Thomas Galvin, Executive Director of the American Library Ass’n, (some member libraries carry sexually-oriented publications, like Playboy and books of Robert Mapplethorpe’s photography, that have been the subject of obscenity prosecutions). Because state and federal obscenity prosecutions are governed by the same constitutional standard, it is clearly reasonable for plaintiffs to fear that federal prosecutors will attempt to seize material that state prosecutors have deemed to be obscene.5
The majority and the government also contend that plaintiffs cannot have a reasonable and well-founded fear of pretrial seizure because the Attorney General has announced a policy of not seizing “presumptively protected First Amendment materials, bookstore assets or other assets prior to conviction” in obscenity and child pornography cases. Again, I am not persuaded. The “policy” obviously does not permanently bind the Attorney General or his successors. Additionally, it provides no defense in the event that a person is subject to pretrial seizure.6
*1204Finally, the plaintiffs’ fear of pretrial seizure is exacerbated by the fact such seizure may occur without any advance notice. In addition, the pretrial seizure of expressive materials, the property used to produce them, and the proceeds derived therefrom, could effect a pretrial shutdown of a business — temporarily or permanently — even if that business could eventually prove that it had not produced or distributed obscenity or child pornography. See Declaration of Mark C. Ellison, Vice President, Government Affairs, and General Counsel to the Satellite Broadcasting and Communications Ass’n of America. On balance, the hardship to the plaintiffs of postponing judicial review militates in favor of entertaining their claims at this time. Cf. Renne v. Geary, — U.S. -, 111 S.Ct. 2331, 2338, 115 L.Ed.2d 288 (1991).
III. MERITS
As the district court recognized, Supreme Court precedent affirms that several aspects of the pretrial forfeiture statutes at issue in this case are unconstitutional. First, the section of the civil forfeiture statute that authorizes seizure of expressive materials without a warrant as part of a search incident to arrest, 18 U.S.C. § 2254(b), clearly violates the holding of Roaden v. Kentucky, 413 U.S. 496, 506, 93 S.Ct. 2796, 2802, 37 L.Ed.2d 757 (1973). Second, Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989), dictates that the sections of the criminal and civil forfeiture provisions that authorize pretrial seizure of expressive material based on a showing of probable cause without an adversary judicial determination that the material is unprotected are unconstitutional. Because the Court’s analysis Fort Wayne Books is relevant to many of these plaintiffs’ constitutional challenges, a brief discussion of the case is warranted.
In Fort Wayne Books, a local Indiana prosecutor filed a civil action against three “adult bookstores,” alleging that they had engaged in a pattern of racketeering activity by repeatedly distributing obscene books and films in violation of the state’s Racketeer Influenced and Corrupt Organizations (“RICO”) law. 489 U.S. at 50-51, 109 S.Ct. at 920-21. In addition to seeking the civil forfeiture of all the property used or derived from the racketeering activity, the prosecutor, pursuant to the state’s Civil Remedies for Racketeering Activity (“CRRA”) law, sought immediate seizure of the property subject to forfeiture. Id. at 51-52, 109 S.Ct. at 921. After an ex parte hearing, the trial court found that there was probable cause to believe that the bookstores were violating the RICO law and, consequently, authorized the sheriff to “padlock” and immediately seize “the real estate, publications and other personal property comprising each of the three bookstores.” Id. at 52, 109 S.Ct. at 921. This was done, although no trial date for the civil forfeiture complaint was ever set. Id. After the Indiana courts upheld the CRRA statute and denied the bookstores’ petitions to vacate the seizure orders, the Supreme Court granted certiorari and reversed. Id. at 52-53, 62, 109 S.Ct. at 921-22, 926.
The Court began by recognizing that its earlier decisions “repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as ‘obscene.’ ” Id. at 62, 109 S.Ct. at 926. Thus, “[wjhile a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing.” Id. at 63, 109 S.Ct. at 927. But the lack of an adversary hearing was not the only constitutional infirmity with the seizure; there was the additional problem that there had been no “determination that the seized items were ‘obscene’ or that a RICO violation ha[d] occurred.” Id. at 66, 109 S.Ct. at 929 (emphasis in original). The lack of such a *1205determination was deemed fatal because mere “probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.” Id.
The two identical constitutional defects in the Indiana civil forfeiture statute are found in the criminal and civil forfeiture statutes at issue here: (1) they authorize seizure of expressive material based on only a finding of probable cause to believe the material is unprotected; and (2) they allow a court to issue a seizure order without holding an adversarial hearing. Therefore, for the reasons stated in Fort Wayne Books, these sections of the Act’s civil and criminal forfeiture provisions are unconstitutional.7
The Attorney General asserts that the pretrial seizure sections of the civil forfeiture provision can be salvaged by adding a requirement that judicial forfeiture proceedings be commenced within 14 days of seizure and completed within 60 days thereafter. I disagree. After adding such requirements for prompt judicial review, the Supreme Court in United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971), did uphold a statute authorizing customs agents to seize, before a judicial hearing, allegedly obscene material imported into the United States. But the unqualified language in Fort Wayne Books that expressive materials “may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing,” 489 U.S. at 63, 109 S.Ct. at 927 (emphasis supplied), may indicate that the “seize and then adjudicate” customs procedure upheld as reasonable in Thirty-Seven Photographs would not be found to be reasonable when applied to expressive materials of periodical distributors already in the country.
I need not resolve that constitutional question, however, because I do not believe the civil forfeiture statute can be construed as containing the requirement that the Attorney General commence forfeiture proceedings within 14 days and that the proceedings be completed within 60 days. First, if the value of the merchandise seized does not exceed $500,000, the statute (by incorporating the customs seizure provisions, 19 U.S.C. §§ 1607-1609) authorizes the government to dispose of the seized material unless the owner, not the government, initiates administrative proceedings for its return. See 18 U.S.C. § 2354(d). This is at odds with established precedent requiring the government to carry the burden of commencing proceedings and proving that the expressive material is unprotected. See, e.g., Blount v. Rizzi, 400 U.S. 410, 417-18, 91 S.Ct. 423, 428-29, 27 L.Ed.2d 498 (1971). Second, even if the court, in contravention of this provision, were to place the burden of initiating administrative and judicial forfeiture proceedings on the government, the civil forfeiture statute (by incorporating 19 U.S.C. § 1621 of the customs laws) would still authorize the government to commence a judicial forfeiture action within five years after the discovery of the alleged offense. As the Supreme Court recognized in United States v. $8,850, 461 U.S. 555, 563 n. 13, 103 S.Ct. 2005, 2011 n. 13, 76 L.Ed.2d 143 (1983), the five-year statute of limitations in 19 U.S.C. § 1621 makes it “impossible” to read a 14-day statute of limitations into the customs statutory scheme as the Court did in Thirty-Seven Photographs. And without such a *1206requirement that the government promptly commence judicial forfeiture proceedings to determine the legality of the seizure, the seizure is obviously unconstitutional. See Thirty-Seven Photographs, 402 U.S. at 367, 91 S.Ct. at 1403; Freedman v. Maryland, 380 U.S. 51, 58-89, 85 S.Ct. 734, 738-39, 13 L.Ed.2d 649 (1965).
Finally, I would reverse the district court’s order declaring facially unconstitutional the provisions in the criminal forfeiture sections of the Act that permit the court to issue protective orders or to require the defendant to execute a performance bond to preserve the availability of property subject to post-conviction forfeiture. See 18 U.S.C. §§ 1467(c), 2253(c). As the Attorney General points out, these provisions authorize the district court to issue orders that protect against the pretrial dissipation of forfeitable assets by obscenity and child pornography defendants but do not prohibit the distribution of expressive materials or force the defendants to go out of business. Such orders do not impede the distribution of presumptively protected material and, therefore, they are not impermissible prior restraints. See, e.g., Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 137-38 (9th Cir.1980), aff'd mem., 454 U.S. 1022, 102 S.Ct. 557, 70 L.Ed.2d 468 (1981); United States v. Alexander, 736 F.Supp. 968, 974-75 (D.Minn.1990). Because many protective orders could be issued under these sections without violating the first amendment, I would reject the plaintiffs’ facial challenge and leave any constitutional problems raised by particular protective orders to be addressed when and if they arise.
. I agree with the majority that the passage of the Child Protection Restoration and Penalties Enhancement Act of 1990 renders moot the plaintiffs’ challenges to the Act’s recordkeeping provisions. I therefore join the section of the majority opinion holding these challenges moot and vacating the district court opinion addressing them.
. It is true, of course, that the Supreme Court in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989), declined to address a pre-enforcement challenge to a post-conviction civil forfeiture statute. The petitioner in Fort Wayne Books sought dismissal of an indictment alleging that he had violated the state’s Racketeer Influenced and Corrupt Organizations Act (“RICO") by engaging in a pattern of obscenity violations. Although the Court considered his claim that the RICO statute was unconstitutionally vague and that its criminal penalties were so draconian as to create an unconstitutional chilling effect on protected speech, the Court declined to address his claim that the civil forfeiture provisions of the state’s Civil Remedies for Racketeering Activity Act (“CRRA”) that were available to redress RICO violations were “so severe as to render the RICO statute itself unconstitutional” because the state had not sought to invoke the provisions. Id. at 60, 109 S.Ct. at 926. Nevertheless, because the Court did not criticize or overrule its precedents authorizing pre-enforcement challenges to statutes that infringe upon first amendment rights, I agree with the Seventh Circuit ruling that Fort Wayne Books is appropriately limited to its own facts — a request for dismissal of a state RICO prosecution on the ground that the civil penalties of a separate state act that the state might not enforce against petitioner if he were convicted were so severe as to render the RICO statute itself unconstitutional. See Sequoia Books, 901 F.2d at 634 n. 7. Comity concerns and the traditional hesitancy of federal courts to interfere with state prosecutions obviously counseled in favor of the Court proceeding cautiously in Fort Wayne Books. None of these concerns are implicated in this case.
. I do, however, have problems with the panel’s rationale for reaching the same result, i.e., that the plaintiffs have not shown sufficient immi-nency of harm from post-conviction forfeitures.
*1202The most significant problem is that the panel appears to be deciding the merits of the facial challenge to the post-conviction penalties in the guise of a ripeness analysis. See Majority ("Maj.”) at 1188-1190. In New York State Club Ass’n, Inc. v. New York City, 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1 (1988), the Court first held that appellant had standing, then went on to address the merits of its facial challenge, saying that the challenge would succeed only if (1) there were no constitutional application of the statute or (2) if the statute were so over-broad that although constitutionally applied to plaintiffs, it would still unconstitutionally inhibit the protected speech of others. The panel, mistakenly I believe, reads this test as one for entertaining pre-enforcement facial challenges, not for deciding them.
I am also concerned about the majority’s assertion that the use forfeiture cannot cause plaintiffs to engage in self-censorship any more than the ten year criminal penalty for child pornography already does. Maj. at 1191. An economist might well argue that because deterrence is a function of the probability of being caught and the magnitude of the punishment, increasing the latter will increase the deterrent effect of the statute. In addition, I question whether any plaintiff could ever prove that she produces less arguably (but not clearly) protected speech as the legislature increases the punishment.
Third, I do not read Babbitt as the panel does. The Court found there that because misstatement is "inevitable,” the union reasonably feared prosecution for making false statements in a consumer publicity campaign even though the union intended to make only true statements. The union’s pre-enforcement challenge to the consumer publicity provision was justicia-ble, the Court found, because the union would have to curtail its publicity campaigns to avoid prosecution. 442 U.S. at 301, 99 S.Ct. at 2310. I do not read the Court’s decision as saying that false speech had to be tolerated to protect speech that "mattered,” or that the false statements were arguably protected by the first amendment. Maj. at 1193.
. For instance, an attachment to the Declaration of Mark C. Ellison, Vice President, Government Affairs, and General Counsel to the Satellite Broadcasting and Communications Ass’n of America, lists among films carried on the network, Blue Lagoon, which contains nudity shots of Brooke Shields, then a minor.
. It is also significant, I think, that although the government claims that the fact that plaintiffs have been subjected to state obscenity prosecutions does not indicate that they are likely to be the targets of federal obscenity prosecutions, the government has not stated that it thinks the state prosecutions were unfounded or that the plaintiffs will not be federally prosecuted for producing or distributing similar materials.
. Moreover, the FBI has seized both expressive and nonexpressive materials when investigating alleged violations of the federal child pornography laws. In a well-publicized case, for example, the FBI obtained a search warrant and raided the San Francisco home and studio of Jock Sturges, a photographer “known in the art world for pictures that feature both clothed and nude portraits of children, young girls and families.” Photographer’s Life Put on Hold After Police Raid, S.F. CHRON., May 25, 1990, at E3. In that raid, the FBI apparently seized "thousands of negatives and photographs ... as well as computer equipment, a photographic enlarger, high school diaries and darkroom light fix*1204tures.” Id. Such incidents further indicate that plaintiffs’ fears of pretrial seizure are warranted.
. The district court in this case also concluded that because "the seizure of non-expressive assets — such as printing presses, bank accounts, etc. — of a business engaged in distributing expressive material may determine whether the business is able to continue functioning or not, ... pretrial seizure of non-expressive material ex parte from a business engaged in distributing expressive material also is unconstitutional.” 713 F.Supp. at 484-85 n. 19 (emphasis supplied). Although the first amendment protects the distribution of expressive material, Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959), I am not convinced that pretrial seizure of nonexpressive assets of a business involved in the distribution of expressive material must necessarily violate the first amendment irrespective of the effect on the business. I would, therefore, decline to consider the constitutionality of the provisions authorizing the pretrial seizure of nonexpressive material until such a pretrial seizure occurs.