January 30, 2005

• :::  Snowman's First Amendment Watch  :::

  Major Victory -- Extreme Associates Case Dismissed!

  I'm pleased to report that last week, a major
  battle in the ongoing fight for true freedom of speech was
  won.  In October 2003, the Justice Department brought
  criminal charges against Rob Black (aka Rob Zicari), Lizzy Borden (aka
  Janet Romano) and other executives at Extreme Associates
  under federal obscenity laws.  The indictment occured about a year
  and a half after Black appeared on an episode of Frontline ("American Porn") covering
  the adult industry.  On the PBS documentary, Black practically
  challenged the government come after him, much to the chagrin of
  other producers.

  The case was widely thought to be a test case in (then) Attorney
  General John Ashcroft's new "War on Porn."  Ashcroft, a favorite
  of the religious right, has been busy over the last few years
  assembling new specially trained obscenity teams and promised a
  wave of prosecutions to "deter others from producing and
  distributing obscene material."  To help fund this war, Congress
  appropriated $42 million dollars for anti-porn efforts.  In
  addition, 10 FBI agents and 42 new attorneys were hired at the Department of Justice, including 25 new trial attorneys. 

  In a nutshell, federal prosecutors alleged that Extreme was guilty of selling obscene material
  on the Internet and then shipped it through the U.S. Mail across state
  lines to an Postal Inspector posing as a customer.  It sounds
  minor, but like most federal crimes, the penalties are overly harsh --
  five years in prison for each offense and ten years for each offense
  thereafter.  In this case, Black and Borden faced a
  maximum of fifty years in prison, a fine of $2.5 million dollars
  and a $5 million dollar fine for the company.  Taking no
  chances, the Feds brought charges in the District Court Western
  District of Pennsylvania, an area known for it's traditionalism and
  conservative beliefs.  In fact, it is home to many thousands
  of "plain people" including the Amish, the Mennonites, and the Brethren.

  The specific Extreme Associates titles named in the complaint were Extreme Teen #24, Cocktails #02, Ass Clowns #03, 1001 Ways to Eat My Jizz and Forced Entry. 
  Some of the "obscene" footage government prosecutors hanged
  their hat on depicted sex scenes with simulated rape and other
  acts of violence.  However, the bulk of sexual content in
  these titles was little different than countless others gonzo titles on
  the shelf, especially those with a misogamy or degradation slant,
  a common and popular theme in porn. 

    

  The Defendants moved the court to dismiss the case on the ground
  that the federal obscenity statutes infringe on the constitutional
  guarantees of liberty and privacy secured by the due process clause of the 14th Amendment. 
  When a statute is deemed unconstitutional, an indictment based on it
  must be dismissed.  Extreme's attorneys argued that there is a broad right to sexual privacy,
  which includes the right to possess and view such material in the
  privacy of one's own home.  The Defendants also argued this right
  is not diminished by the fact the material viewed is without literary
  or artistic merit or inspires lewd or lascivious thoughts in the mind
  of the viewer.  In the past, these type of considerations were
  important under the Miller obscenity test. 

  Extreme's attorneys argued that these rights stem from the holdings
  in two Supreme Court Cases, one of which was decided recently:  Lawrence v. Texas (2003) and Stanley v. Georgia (1969).  In Lawrence, the
  Court struck down Texas sodomy laws aimed at homosexuals.  In that
  case, Houston police arrested and charged two men for the crime of
  "deviate sexual intercourse" in the privacy of their own
  apartment.  The police were on the scene to investigate an
  reported weapons disturbance.  In striking down the Texas statute,
  the Court wrote,

  "The present case does not involve minors. It does not involve
  persons who might be injured or coerced or who are situated in
  relationships where consent might not easily be refused. It does not
  involve public conduct or prostitution. It does not involve whether the
  government must give formal recognition to any relationship that
  homosexual persons seek to enter. The case does involve two adults who,
  with full and mutual consent from each other, engaged in sexual
  practices common to a homosexual lifestyle. The petitioners are
  entitled to respect for their private lives. The State cannot demean
  their existence or control their destiny by making their private sexual
  conduct a crime. Their right to liberty under the Due Process Clause
  gives them the full right to engage in their conduct without
  intervention of the government. "It is a promise of the Constitution
  that there is a realm of personal liberty which the government may not
  enter." Casey, supra, at 847. The Texas statute
  furthers no legitimate state interest which can justify its intrusion
  into the personal and private life of the individual."

  Defendants in the Extreme matter further argued, because the
  obscenity laws completely ban the distribution of materials that an
  individual has the fundamental right to possess and view in private,
  the statutes should be subjected to the strict scrutiny test for
  constitutionality.  They argued the obscenity statutes fail strict
  scrutiny (and the easier to satisfy rational basis
  test)  because after Lawrence, the government can no longer justify legislation with enforcement of a "moral code". 

  District Court Judge Gary L. Lancaster agreed.  In a 45 page Memorandum,
  the Court ruled that "because the federal obscenity statutes place a
  burden on the exercise of the fundmental rights of liberty, privacy and
  speech recognized by the Supreme Court in Stanley v. Georgia," it was
  appropriate to apply the strict strutiny test.  The Court then
  held that the federal obscenity statutes do not survive the strict
  scrutiny test as applied to the facts of the Extreme case. 
  Lancaster cited Lawrence and stated "the government can no
  longer rely on the advancement of moral code, i.e. preventing
  consenting adults from entertaining lewd or lascivious thoughts, as a
  legitimate, let alone compelling state interest." 

  Second, the Court stated the obscenity laws were not narrowly drawn
  to advance the government's two asserted interests, protection of
  minors and protecting unwitting adults from inadvertent exposure to
  obscene materials. 

  As a result, the Court found that the federal obscenity statutes
  "burden an individual's fundamental right to possess, read,
  observe, and think about what he chooses in the privacy of his own
  home by completely banning the distribution of obscene materials. 
  Judge Lancaster ruled this violated "constitutional
  guarantees of personal liberty and privacy of consenting adults who
  wish to view defendants' films in private", and dismissed the
  indictment.

  Mary Beth Buchanan, the U.S. Attorney who prosecuted the case was
  reported to have issued a statement that she was "very disappointed"
  and that her office continues to believe "the federal obscenity
  statutes are valid and constitutional."  She stated her office is
  "reviewing their options."  It is noteworthy that Attorney General
  designate Alberto Gonzales recently told the Senate he intended
  "to make the investigation and prosecution of obscenity one of my
  highest criminal enforcement priorities."

  "War on Porn" Score Tally:  Freedom 1 / Religious Right 0 ...  next stop, the United States Court of Appeals for the Third Circuit!    

  -- Snowman 

  Sources / Further Reading:

  *  To see a short video clip from Rob Black regarding the decision, click this link.
  *  Salon interviewed Lizzy Borden ("the most reviled woman in pornography") in June of 2002 to find out why she produces "repugnant and evil" films.
  *  "Zicari Celebrates Victory With Video", by Eric Heyl, Pittsburgh Tribute-Review, 01.26.05
  *  "Rare Obscenity Prosecution Signals New Crackdown, by AP, 08.09.03
  *  "Court Deals Blow to U.S. Anti-Porn Campaign", by Jake Tapper, ABC News original report, 01.24.05
  *  Legal Seminar, "Obscenity -- It's Baack!", AVN AEE Expo, 01.07.05
  *  On the SRR discussion forum, I have a board for Legal Issues & News.

  • 3:36 am
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