PITTSBURGH — The result of Wednesday's telephone status conference in the Extreme Associates obscenity case — the first action taken in the case in more than a year — was, in the words of Extreme's attorney, "nothing exciting."
"He [U.S. District Judge Gary Lancaster] just wanted to schedule some stuff, including us, over the next couple of weeks, submitting some possible dates for oral argument on the remaining motions that are still outstanding, like the motion in limine which deals with what would be the geographic community and potentially to list out what we think may be evidentiary issues at trial," explained H. Louis Sirkin, attorney for defendants Extreme and its owners, Rob Black and Lizzy Borden. "He doesn't want us to give memoranda on them or anything but to list out what issues there may be in trial, 1, 2, 3, 4, 5, and to propose a couple of alternate trial dates. There was no push. He said, 'Submit some argument dates for the motion; is two weeks enough? And if that's not enough, feel free to call and we'll gladly extend the period.' So I don't think he's really pushing. [U.S. Attorney] Mary Beth [Buchanan] was pretty quiet too; didn't say much, and they didn't really push."
That the government isn't in a hurry to bring this case to trial, even five years and one month after indictment, is hardly surprising, but it is unusual.
"I can't think of any other obscenity case that's gone on as long as this one," noted attorney and legal scholar Reed Lee.
Indeed, the closest that any other obscenity prosecution has come to rivaling Extreme's longevity is arguably the Justice Department's multiple-jurisdiction prosecution strategy of Adam & Eve, but even that company's final indictment in Utah in 1990 took just three years to be dismissed.
What may be worrying the prosecution is that the case still belongs to Judge Lancaster, who threw the government for a loop when he dismissed the indictments against Extreme in an exceptionally well-researched and well-written opinion dated January 20, 2005. Sirkin and associate Jennifer Kinsley had argued that the U.S. Supreme Court's opinion in Lawrence v. Texas, the so-called Texas sodomy case, had recognized a "substantive due process right of privacy" based on language in the Fifth and Fourteenth Amendments to the Constitution. Sirkin had made an excellent case that since no non-consenting adults (except arguably U.S. postal inspectors and FBI agents) or children had seen the material in question, the government had no legitimate basis for having the material taken out of the stream of commerce through an obscenity charge.
Unfortunately, the Third Circuit Court of Appeals overruled Judge Lancaster's dismissal of the charges, but their decision was on procedural grounds rather that dealing with the substance of Lancaster's opinion, leaving many of the issues raised in Sirkin's original motion ripe for the Extreme trial. Moreover, the defense filed a second motion to dismiss, raising similar issues as well as some new ones, all of which were overruled by Lancaster himself based on the Third Circuit's admonitions. However, Lancaster noted that while the issues in the second motion were premature at the pretrial stage, many of them could be raised either during the trial itself, or could form the basis for motions in limine to prevent the government from using certain arguments during the trial.
Among the topics that may be dealt with at trial are:
- All of the Lawrence issues dealing with the dissemination of the charged material and its ability to be accessed by children and unwilling adults, which will also form part of the basis for an appeal if the Extreme defendants are convicted;
- The question of what constitutes the "community" for allegedly obscene material that is only available via the World Wide Web — an issue most recently dealt with in the Third Circuit appeal of the striking down of the Child Online Protection Act (COPA), where Senior Judge Morton I. Greenberg opined that the law was impermissibly vague, in part because it failed to define the community affected by the Act;
- In the event that the judge rules that the "community" whose standards govern the alleged obscenity of the material must be a physical one, the question of what geographic "community standards" would apply in this case: Those of Pittsburgh, Pa., or the Western District of Pennsylvania, where the videos were sent and the Internet video clips viewed, or the standards of Los Angeles, or the Central District of California, where the videos originated and the server containing the video clips was located;
- The historical time period relevant for the jury to consider as part of its understanding of the "community standard," whatever area that turns out to be, since the standards of today may be different than the standards in existence when the material was first charged in 2003;
- The question of the meaning of the "work, taken as a whole" when applied to video clips posted to a Website — another issue touched on in the COPA decision;
- Whether the Internet video clips meet the definition of "obscene material" as set forth in 18 U.S.C. §§1461, 1462 and 1465 in that the clips are merely electronic impulses until a computer translates them into words or images — and therefore not "tangible" as required by the cited portions of the obscenity law.
"The list of items that obscenity law covers on its face, they're all tangible things," Kinsley explained shortly after she and Sirkin filed their second motion to dismiss. "They're photographs, a magazine, a book, a reel of film — things that you can hold in your hand. I am not a tech geek, but the argument has been advanced that things that you would look at on the Internet are not actually themselves images because they are codes, they're numbers and letters and a series of data that all come together when the computer translates it into something. So what's sent out is not tangible as anything other than electronic code."
Another issue yet to be dealt with in pretrial motions is Sirkin's suspicion that the government may attempt, as it did successfully in the Max Hardcore trial in Tampa and unsuccessfully at the Five Star trial in Phoenix, to "publish" to the jury only portions of the charged material, claiming that the remainder of the material is so similar that it need not be shown. That would leave the defense with the choices of either showing the remainder of the material during its own case — for which Max Hardcore prosecutor Edward McAndrew rightly observed that the defense would be "blamed" — or arguing at the conclusion of the prosecution's case that, by failing to show the "work as a whole," the government had failed to meet the standards required by the obscenity test in Miller v. California.
Judge Lancaster himself will be faced with the interesting dilemma of how to conduct an obscenity trial, since it's been at least two decades that a federal court in Western Pennsylvania has tried an obscenity case, and it is likely that no one on the Western District bench has any experience in that area of the law.
Sirkin said that during the telephone conference, the government indicated that it expected its case to take four days to present, and Sirkin anticipated that the defense might take another two or three days for its case, so Judge Lancaster will have to find two quiet weeks in his busy calendar to accommodate the trial — not easy for a busy federal district.
What that all means is that the Extreme trial could easily still be months away — and since the administration in Washington is expected to change from Republican to Democrat in the interim, including the appointment of a new Attorney General and various U.S. Attorneys, the future of the Extreme obscenity prosecution is anything but assured.
