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mikesouth · 01-31-2005, 06:09 PM

A Federal Judge Dismisses an Obscenity Prosecution on Privacy Grounds:
A Decision That, If Followed, Could Transform the Law
By JULIE HILDEN

Monday, Jan. 31, 2005

On January 20, U.S. District Judge Gary Lancaster - of the U.S. District Court for the Western District of Pennsylvania, in Pittsburgh - issued what I believe may be a very important right to privacy decision.

Indeed, Judge Lancaster's ruling might - if other courts accept its logic - profoundly affect the future of obscenity law in the United States. If so, it will make speech in this country more free, and privacy more sacrosanct.
Click here to find out more!

Judge Lancaster's opinion is remarkable in that it shows a federal trial judge's willingness to admit what the U.S. Supreme Court will not: The emperor - here, the law of obscenity - has no clothes.

Put bluntly, the law of obscenity, no matter how longstanding, has never satisfied constitutional requirements, and it never will. Finally, a judge has been brave enough to say as much. This opinion is notable for that reason - and for Judge Lancaster's novel approach. His opinion attacks the obscenity laws on privacy grounds - and thus may be more effective than pure free-speech attacks mounted in the past.

The Defendants, Their Website, and the Federal Criminal Statutes Involved

To begin, it's worth noting the context, and background of the case. The defendants in the case before Judge Lancaster were Extreme Associates, Inc., Robert Zicari, and Janet Romano. Zicari (a.k.a. Rob Black) and Romano (a.k.a. Lizzy Borden) sell pornographic films through the mail, and through the "members only" section of the Extreme Associates website.

The prosecution was brought under three federal obscenity statutes - one statute that prohibits mailing matter that is "obscene, lewd, lascivious, indecent, filthy or vile"; another statute that prohibits using the Internet to traffic in such material; and a third statute that prohibits conveying such material in interstate commerce.

The indictment purported to state ten law violations, including a conspiracy charge. Each carried with it a potential prison sentence of up to five years, and a fine.

Interestingly, each alleged violation also came out of a "sting" operation in which a postal inspector, acting undercover, became a member of the defendants' website, and ordered the defendants' films. Thus, rather than acting on any aggrieved person's complaint of having been offended, the government seems to have been acting simply on its own, targeting the films its own prosecutors happened to find especially offensive.

This kind of law enforcement is arbitrary and idiosyncratic at best, and at worst, selective prosecution, in which the government chooses especially-disliked persons and companies to target - doing so based on the content of their speech. Enforcement that turns on such individualized judgment makes a mockery of the very concept of law. And when the cherry-picking is done based on the content of speech (here, the content of the films at issue), it is especially noxious. Corollary to the concept that speech must be free, is the concept that speech cannot be punished based on its content.

The Traditional, Unsuccessful Attack on Obscenity Laws

Selective enforcement and content-discrimination, however, may be among the least of obscenity law's problems. Lawyers have long tried to attack obscenity law as a simple, straightforward First Amendment violation: These laws directly target speech, when the First Amendment plainly says that to do so, is forbidden. (The Court has long held that films and photos count as "speech" as fully as newspaper reports do.)

Yet the courts have always rebuffed these attacks - carving out obscenity as an area of law that, anomalously, is thought to be somehow outside the First Amendment's scope. Now, however, Judge Lancaster has accepted new arguments, grounded in the right of privacy, that other courts may find more persuasive than those that have typically been raised. Before looking at those new arguments, though, it's worth focusing briefly on the traditional, failed attacks.

Why didn't simple First Amendment attacks on obscenity laws ever persuade the Supreme Court? Perhaps the Court was simply uncomfortable with putting speech with sexual content in the same category as the political speech on which our democratic system is based - viewing these kinds of speech as such strange bedfellows, it felt it had to put them in separate areas of law.

The Supreme Court should have resisted its discomfort, and yielded to logic. For example, "I know it when I see it" is obviously an insufficiently clear standard for a law, especially a criminal law. Yet this was Justice Potter Stewart's not-very-reassuring reassurance as to how he figured out what was, and was not, obscenity. (The comment occurred in Stewart's concurring opinion in the 1964 case of Jacobellis v. Ohio - in which the Court reversed a state Supreme court's judgment that a particular film was obscene.)

Less famously, and even less reassuringly, the Justice also mused, in the same dissenting opinion, that he might never be able to "intelligibly" figure out what he meant by the kind of "hard-core pornography" he deemed to fall within obscenity law. When a Supreme Court Justice is confessing that he doesn't know what the law means, and probably never will, how is a layperson supposed to figure it out?

The truth is that - Supreme Court decisions to the contrary -- obscene speech, simply because it is speech, plainly is within the First Amendment's protections. A quick look at the wording of the First Amendment ought to establish that.

Yet this argument has been repeated so many times, with so little success, that lawyers have virtually given up on making it.

Fortunately, however, the lawyers for the defendants in the Extreme Associates case took a different tack: They categorized pornographic speech - indeed, even obscene speech - not just as speech, but also as part of readers' and viewers' sexual liberty and sexual privacy. And Judge Lancaster wisely accepted, and eloquently elucidated, these arguments.

Putting the First Amendment Issue Aside: Agreeing that the Obscenity Law Applies

Before analyzing Judge Lancaster's holding, it's useful to see what he did not hold: He did not hold that these materials were non-obscene. To the contrary, he assumed that they were.

The assumption was quite reasonable: Most would agree that the material Extreme Associates sells is repellent; it depicts women being defecated on, and also depicts them - fictionally - being gang-raped, and having their throats slit. But these are not "snuff films" or "rape films": The women's participation is consensual. If it were not, the crimes could, of course, be constitutionally prosecuted, and the films themselves constitutionally confiscated.

Indeed, for the purposes of this dispute, even the defendants agreed that this material is obscene under the currently-applicable test for obscenity -- set forth by the Supreme Court in Miller v. California. For the Miller test to be satisfied, and speech to be constitutionally proscribed as obscene, the Court held, the material at issue must depict or describe sexual conduct in a patently offensive way (as defined by the community); the conduct must be specifically described in the law; and the work must, taken as a whole, lack serious literary or artistic value and must appeal to a prurient interest in sex. The films at issue here seem to pass the test - and thus, would be deemed, by most, to be obscene under its definitions.

For all these reasons, Miller was not an issue here. So Judge Lancaster's ruling concentrated on two other precedents: Lawrence v. Texas and Stanley v. Georgia

Applying Lawrence: Judge Lancaster Defines Liberty to Including Viewing Sexual Films

In Lawrence, the court struck down a law criminalizing same-sex sodomy. In so doing, it held that the constitution's definition of liberty includes the right of adults to conduct consensual personal relationships "in the confines of their homes and their own private lives." And it underlined that that is true even when those relationships' "overt expression" is through "intimate conduct." In short, liberty includes the liberty to have sexual relations.

01-31-2005, 06:09 PM
mikesouth Confirmed User Industry Role: Join Date: Jun 2003 Location: My High Horse Posts: 6,334	The best commentary on Extreme case everyone here should read this A Federal Judge Dismisses an Obscenity Prosecution on Privacy Grounds: A Decision That, If Followed, Could Transform the Law By JULIE HILDEN Monday, Jan. 31, 2005 On January 20, U.S. District Judge Gary Lancaster - of the U.S. District Court for the Western District of Pennsylvania, in Pittsburgh - issued what I believe may be a very important right to privacy decision. Indeed, Judge Lancaster's ruling might - if other courts accept its logic - profoundly affect the future of obscenity law in the United States. If so, it will make speech in this country more free, and privacy more sacrosanct. Click here to find out more! Judge Lancaster's opinion is remarkable in that it shows a federal trial judge's willingness to admit what the U.S. Supreme Court will not: The emperor - here, the law of obscenity - has no clothes. Put bluntly, the law of obscenity, no matter how longstanding, has never satisfied constitutional requirements, and it never will. Finally, a judge has been brave enough to say as much. This opinion is notable for that reason - and for Judge Lancaster's novel approach. His opinion attacks the obscenity laws on privacy grounds - and thus may be more effective than pure free-speech attacks mounted in the past. The Defendants, Their Website, and the Federal Criminal Statutes Involved To begin, it's worth noting the context, and background of the case. The defendants in the case before Judge Lancaster were Extreme Associates, Inc., Robert Zicari, and Janet Romano. Zicari (a.k.a. Rob Black) and Romano (a.k.a. Lizzy Borden) sell pornographic films through the mail, and through the "members only" section of the Extreme Associates website. The prosecution was brought under three federal obscenity statutes - one statute that prohibits mailing matter that is "obscene, lewd, lascivious, indecent, filthy or vile"; another statute that prohibits using the Internet to traffic in such material; and a third statute that prohibits conveying such material in interstate commerce. The indictment purported to state ten law violations, including a conspiracy charge. Each carried with it a potential prison sentence of up to five years, and a fine. Interestingly, each alleged violation also came out of a "sting" operation in which a postal inspector, acting undercover, became a member of the defendants' website, and ordered the defendants' films. Thus, rather than acting on any aggrieved person's complaint of having been offended, the government seems to have been acting simply on its own, targeting the films its own prosecutors happened to find especially offensive. This kind of law enforcement is arbitrary and idiosyncratic at best, and at worst, selective prosecution, in which the government chooses especially-disliked persons and companies to target - doing so based on the content of their speech. Enforcement that turns on such individualized judgment makes a mockery of the very concept of law. And when the cherry-picking is done based on the content of speech (here, the content of the films at issue), it is especially noxious. Corollary to the concept that speech must be free, is the concept that speech cannot be punished based on its content. The Traditional, Unsuccessful Attack on Obscenity Laws Selective enforcement and content-discrimination, however, may be among the least of obscenity law's problems. Lawyers have long tried to attack obscenity law as a simple, straightforward First Amendment violation: These laws directly target speech, when the First Amendment plainly says that to do so, is forbidden. (The Court has long held that films and photos count as "speech" as fully as newspaper reports do.) Yet the courts have always rebuffed these attacks - carving out obscenity as an area of law that, anomalously, is thought to be somehow outside the First Amendment's scope. Now, however, Judge Lancaster has accepted new arguments, grounded in the right of privacy, that other courts may find more persuasive than those that have typically been raised. Before looking at those new arguments, though, it's worth focusing briefly on the traditional, failed attacks. Why didn't simple First Amendment attacks on obscenity laws ever persuade the Supreme Court? Perhaps the Court was simply uncomfortable with putting speech with sexual content in the same category as the political speech on which our democratic system is based - viewing these kinds of speech as such strange bedfellows, it felt it had to put them in separate areas of law. The Supreme Court should have resisted its discomfort, and yielded to logic. For example, "I know it when I see it" is obviously an insufficiently clear standard for a law, especially a criminal law. Yet this was Justice Potter Stewart's not-very-reassuring reassurance as to how he figured out what was, and was not, obscenity. (The comment occurred in Stewart's concurring opinion in the 1964 case of Jacobellis v. Ohio - in which the Court reversed a state Supreme court's judgment that a particular film was obscene.) Less famously, and even less reassuringly, the Justice also mused, in the same dissenting opinion, that he might never be able to "intelligibly" figure out what he meant by the kind of "hard-core pornography" he deemed to fall within obscenity law. When a Supreme Court Justice is confessing that he doesn't know what the law means, and probably never will, how is a layperson supposed to figure it out? The truth is that - Supreme Court decisions to the contrary -- obscene speech, simply because it is speech, plainly is within the First Amendment's protections. A quick look at the wording of the First Amendment ought to establish that. Yet this argument has been repeated so many times, with so little success, that lawyers have virtually given up on making it. Fortunately, however, the lawyers for the defendants in the Extreme Associates case took a different tack: They categorized pornographic speech - indeed, even obscene speech - not just as speech, but also as part of readers' and viewers' sexual liberty and sexual privacy. And Judge Lancaster wisely accepted, and eloquently elucidated, these arguments. Putting the First Amendment Issue Aside: Agreeing that the Obscenity Law Applies Before analyzing Judge Lancaster's holding, it's useful to see what he did not hold: He did not hold that these materials were non-obscene. To the contrary, he assumed that they were. The assumption was quite reasonable: Most would agree that the material Extreme Associates sells is repellent; it depicts women being defecated on, and also depicts them - fictionally - being gang-raped, and having their throats slit. But these are not "snuff films" or "rape films": The women's participation is consensual. If it were not, the crimes could, of course, be constitutionally prosecuted, and the films themselves constitutionally confiscated. Indeed, for the purposes of this dispute, even the defendants agreed that this material is obscene under the currently-applicable test for obscenity -- set forth by the Supreme Court in Miller v. California. For the Miller test to be satisfied, and speech to be constitutionally proscribed as obscene, the Court held, the material at issue must depict or describe sexual conduct in a patently offensive way (as defined by the community); the conduct must be specifically described in the law; and the work must, taken as a whole, lack serious literary or artistic value and must appeal to a prurient interest in sex. The films at issue here seem to pass the test - and thus, would be deemed, by most, to be obscene under its definitions. For all these reasons, Miller was not an issue here. So Judge Lancaster's ruling concentrated on two other precedents: Lawrence v. Texas and Stanley v. Georgia Applying Lawrence: Judge Lancaster Defines Liberty to Including Viewing Sexual Films In Lawrence, the court struck down a law criminalizing same-sex sodomy. In so doing, it held that the constitution's definition of liberty includes the right of adults to conduct consensual personal relationships "in the confines of their homes and their own private lives." And it underlined that that is true even when those relationships' "overt expression" is through "intimate conduct." In short, liberty includes the liberty to have sexual relations. __________________ Mike South It's No wonder I took up drugs and alcohol, it's the only way I could dumb myself down enough to cope with the morons in this biz.