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mikesouth · 01-31-2005, 06:10 PM

Part 2

From this, Judge Lancaster concluded that this liberty also includes the liberty to view sexual material in the privacy of one's home. In support of this argument, the judge pointed to the Supreme Court's holding in Stanley v. Georgia.

In Stanley, the Court had held that a state cannot criminalize the mere possession of sexual material in one's home even if it is obscene. The reason? Because, the Court said, there is a "right to receive information and ideas regardless of their social worth."

Plainly, this right does not depend on the kind of serious literary or artistic value to which Miller referred. To the contrary, the right recognized in Stanley, by the Court's own language, can apply to valueless, worthless material - valueless and worthless, that is, as viewed under the standards of the community.

Thus, Judge Lancaster correctly concluded that this right - the right to privately read and view -- can protect even material (like Extreme Associates' films) that is not independently protected by the Miller test.

Applying Lawrence Once Again: Judge Lancaster Rejects Purely "Moral" State Interests

In addition, the Lawrence Court also reached another conclusion highly relevant to the Extreme Associates case. It concluded that the fact that a given law is a longstanding prohibition grounded in widely-held moral beliefs is not, in itself, a reason for a court to hold that law to be constitutional.

More than longtime consensus, is needed; depending on the applicable standard of review, either a "rational basis" or a "compelling interest" is required. Put bluntly: A thousand prosecutors can be wrong.

No wonder, then, that Judge Lancaster rejected the government's contention that, as he summarized it, "because the federal obscenity statutes have withstood constitutional attack for more than thirty-five years, this court lacks the authority to find that they are unconstitutional."

Judge Lancaster pointed out, to the contrary, that:

[A]fter Lawrence, the government can no longer rely on the advancement of a moral code, i.e. preventing consenting adults from entertaining lewd or lascivious thoughts as a legitimate, let alone compelling, state interest.

Precluded from citing any longstanding moral interest, the government in Extreme Associates put forward another putative state interest in an attempt to justify charging the defendants with violations of the criminal obscenity laws: An interest in protecting children, and unconsenting adults, from seeing such material.

But Judge Lancaster did not find this interest convincing. He pointed out that the website already protected children and unconsenting adults by erecting a number of gates: To buy a film, the purchaser had to use a credit card, purchase a membership, and receive and use a password.

And in any event, Judge Lancaster noted, even if the criminal law of obscenity marginally did serve these interests, it was far too blunt an instrument to do so constitutionally. The Supreme Court has made clear that adults should not lose rights to view material just because a "determined minor" can figure out a way to access that material, too.

This second ruling by Judge Lancaster was also very convincing. Especially since civil penalties are an option, and the site does use a credit-card requirement to screen out most minors, it seems grossly excessive for the defendants to face jail sentences of up to five years under the law. When it comes to the First Amendment, especially, the punishment must fit the offense far better than this.

In addition, the Supreme Court has long held that adults cannot, in effect, be sent back to the nursery when it comes to First Amendment rights: Just as a few industrious sixteen-year-olds are doubtless going to sneak pornographic magazines from behind the cash register, so too will they figure out a way to get a credit card and download pornographic films. We may want to take measures to stop them, but such measures should not include treating all adults accessing a give site like sixteen-year-olds, in the fear that a few sixteen-year-olds will masquerade as adults and gain access to the site.

A Possible End to Recent Abusive Use of the Obscenity Laws

Over the past several years, the Ashcroft Justice Department has launched an all-out assault on materials it has deemed obscene. Judge Lancaster's opinion underlines one reason why we should be concerned about this campaign: It's not just about speech, but also about individual privacy and individual liberty.

Obscenity law is an embarrassment to constitutional law: It is perpetuated even by judges who as much as admit that its application is extremely subjective - and thus that potential violators lack notice as to when they may be overstepping.

It's elementary: Vague criminal laws violate due process. And laws banning speech precisely because of the effect it may have on the listener or viewer violate the First Amendment. Yet courts have pretended to ignore these two truths when it comes to obscenity law.

Let's hope that Judge Lancaster's novel approach can shock other judges into realizing what they've already known: Obscenity law is unconstitutional for multiple reasons - it strikes blows to fairness, free speech, and sexual privacy, as well.

01-31-2005, 06:10 PM
mikesouth Confirmed User Industry Role: Join Date: Jun 2003 Location: My High Horse Posts: 6,334	Part 2 From this, Judge Lancaster concluded that this liberty also includes the liberty to view sexual material in the privacy of one's home. In support of this argument, the judge pointed to the Supreme Court's holding in Stanley v. Georgia. In Stanley, the Court had held that a state cannot criminalize the mere possession of sexual material in one's home even if it is obscene. The reason? Because, the Court said, there is a "right to receive information and ideas regardless of their social worth." Plainly, this right does not depend on the kind of serious literary or artistic value to which Miller referred. To the contrary, the right recognized in Stanley, by the Court's own language, can apply to valueless, worthless material - valueless and worthless, that is, as viewed under the standards of the community. Thus, Judge Lancaster correctly concluded that this right - the right to privately read and view -- can protect even material (like Extreme Associates' films) that is not independently protected by the Miller test. Applying Lawrence Once Again: Judge Lancaster Rejects Purely "Moral" State Interests In addition, the Lawrence Court also reached another conclusion highly relevant to the Extreme Associates case. It concluded that the fact that a given law is a longstanding prohibition grounded in widely-held moral beliefs is not, in itself, a reason for a court to hold that law to be constitutional. More than longtime consensus, is needed; depending on the applicable standard of review, either a "rational basis" or a "compelling interest" is required. Put bluntly: A thousand prosecutors can be wrong. No wonder, then, that Judge Lancaster rejected the government's contention that, as he summarized it, "because the federal obscenity statutes have withstood constitutional attack for more than thirty-five years, this court lacks the authority to find that they are unconstitutional." Judge Lancaster pointed out, to the contrary, that: [A]fter Lawrence, the government can no longer rely on the advancement of a moral code, i.e. preventing consenting adults from entertaining lewd or lascivious thoughts as a legitimate, let alone compelling, state interest. Precluded from citing any longstanding moral interest, the government in Extreme Associates put forward another putative state interest in an attempt to justify charging the defendants with violations of the criminal obscenity laws: An interest in protecting children, and unconsenting adults, from seeing such material. But Judge Lancaster did not find this interest convincing. He pointed out that the website already protected children and unconsenting adults by erecting a number of gates: To buy a film, the purchaser had to use a credit card, purchase a membership, and receive and use a password. And in any event, Judge Lancaster noted, even if the criminal law of obscenity marginally did serve these interests, it was far too blunt an instrument to do so constitutionally. The Supreme Court has made clear that adults should not lose rights to view material just because a "determined minor" can figure out a way to access that material, too. This second ruling by Judge Lancaster was also very convincing. Especially since civil penalties are an option, and the site does use a credit-card requirement to screen out most minors, it seems grossly excessive for the defendants to face jail sentences of up to five years under the law. When it comes to the First Amendment, especially, the punishment must fit the offense far better than this. In addition, the Supreme Court has long held that adults cannot, in effect, be sent back to the nursery when it comes to First Amendment rights: Just as a few industrious sixteen-year-olds are doubtless going to sneak pornographic magazines from behind the cash register, so too will they figure out a way to get a credit card and download pornographic films. We may want to take measures to stop them, but such measures should not include treating all adults accessing a give site like sixteen-year-olds, in the fear that a few sixteen-year-olds will masquerade as adults and gain access to the site. A Possible End to Recent Abusive Use of the Obscenity Laws Over the past several years, the Ashcroft Justice Department has launched an all-out assault on materials it has deemed obscene. Judge Lancaster's opinion underlines one reason why we should be concerned about this campaign: It's not just about speech, but also about individual privacy and individual liberty. Obscenity law is an embarrassment to constitutional law: It is perpetuated even by judges who as much as admit that its application is extremely subjective - and thus that potential violators lack notice as to when they may be overstepping. It's elementary: Vague criminal laws violate due process. And laws banning speech precisely because of the effect it may have on the listener or viewer violate the First Amendment. Yet courts have pretended to ignore these two truths when it comes to obscenity law. Let's hope that Judge Lancaster's novel approach can shock other judges into realizing what they've already known: Obscenity law is unconstitutional for multiple reasons - it strikes blows to fairness, free speech, and sexual privacy, as well. __________________ 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.