New Court Order In Extreme Associates Obscenity Case

PITTSBURGH - It's been several months since H. Louis Sirkin and Jennifer Kinsley, attorneys for Extreme Associates and its owners Rob Black and Lizzy Borden, filed their second motion to dismiss all charges against the defendants, and on Monday, U.S. District Court Judge Gary Lancaster made his ruling: Trial will proceed on all counts.

However, as federal court orders go, it's not a particularly bad one.

After briefly reviewing the history of the case, including his previous dismissal of the indictments and the Third Circuit's reinstatement of them, Judge Lancaster takes the various arguments for dismissal offered by Sirkin and Kinsley and deals with them.

Judge Lancaster notes that the defense had moved for a pretrial ruling regarding how the Miller v. California test for obscenity will be applied to the facts of the Extreme case, therein arguing that the Miller standards of "taken as a whole" and "community standards" cannot be applied to the Internet clips at issue (or, alternatively, if the judge believes they should apply, the defense asks him to state how they will apply); that the federal obscenity statutes in general are overbroad; and that the digital video clips charged do not qualify as "tangible material" under the obscenity statutes.

"The parties' briefs were excellently done and the court appreciates the professional effort and time the parties committed to the matter," Judge Lancaster begins, but it's only a portent of bad news ahead.

"The criminal obscenity statutes at issue, as well as the Miller test, have repeatedly been deemed constitutional," the judge continues. "The court of appeals, in substance, held, in its opinion reversing our decision on the first motion to dismiss, that even if the statutes, and applicable standards, have been called into question due to subsequent events, if there is going to be a change in the law, it must come from the top down, not from the bottom up."

Judge Lancaster here refers to the Third Circuit's ruling in December, 2005, which gave little attention to Lancaster's excellent reasoning, based largely on the Supreme Court's landmark decision in Lawrence v. Texas, for dismissing the Extreme indictments, and instead made its decision based on the idea that even when subsequent rulings appear to change "settled" law – in this case, the validity of federal obscenity statutes – it's not within the power of a trial judge to assume that the Supreme Court will apply some later insight (Lawrence) to statutes which have not been challenged before it on that basis.

"There is no controlling authority holding that the federal obscenity statutes, or the Miller test, are unconstitutional as applied to materials available via the Internet," Judge Lancaster continues. "Therefore, for that reason, we deny the defendants' second motion to dismiss."

Bad news, indeed ... but some rays of hope remain at the conclusion of the judge's order.

"That does not mean, however, that the issues raised by the defendants, and the case law they have cited in support, are irrelevant," Judge Lancaster concludes. "Indeed, what is meant by 'community standards' and 'as a whole' in relation to materials transported via the Internet are centrally important to the trial of this matter. These factors will affect the court's rulings on relevant evidentiary issues and the admissibility of evidence, as well as the drafting of jury instructions, and perhaps even jury selection. Therefore, I will deem the issues raised by the defendants' motion for a pretrial ruling as motions in limine, which I will address, along with the other pending motions in limine, after oral argument at a set date."

According to the website, a "motion in limine" is "a request submitted to the court before trial in an attempt to exclude evidence from the proceedings. A motion in limine is usually made by a party when simply the mention of the evidence would prejudice the jury against that party, even if the judge later instructed the jury to disregard the evidence."

Therefore, if the judge decides, during the course of the trial, that the prosecution has failed to show what the "community standard" of the Internet is, or failed to define "taken as a whole" sufficiently precisely for a jury to apply the definition to material found on the Internet, the judge could either exclude evidence of those terms from the trial itself, or instruct the jury later that the prosecution had not met its burden to prove, beyond a reasonable doubt, that the Extreme material at issue fit the legal definition for obscenity.

At last report, the attorneys expected the Extreme case to go to trial sometime this winter, but with the defense motions to dismiss now having been decided, trial could begin as early as October or November.