Unable to enforce a bag limit of one blockbuster court decision per month, this month is necessarily bi-topical. Lou Sirkin’s heroics have resulted in a defeat in an Ohio state court of appeals, State v. Jenkins, ___ N.E.2d ___, 2004 WL 3015091 (Ohio App. [1st Dist.], Dec. 30, 2004), but have scored a huge victory in the Extreme Associates case in a federal district court in Pittsburgh. United States v. Extreme Associates, Inc., ___ F.Supp.2d ___, 2005 WL 121749 (W.D. Pa., Jan. 20, 2005). Meanwhile, the United States Supreme Court has tossed out the Draconian federal sentencing guidelines. United States v. Booker, ___ U.S. ___, 2005 WL 50108 (Jan. 12, 2005). Everyone’s head is spinning.
On the obscenity front, Mark Kernes has done his usual excellent job both on avn.com and elsewhere in this issue of covering the Extreme Associates case, but you must have expected that this column would be putting in its two cents. The argument in play, stated very generally, is that the Lawrence v. Texas decision — which overruled the Supreme Court’s 1985 Bowers v. Hardwick decision, and thereby struck down a Texas law prohibiting homosexual sodomy — articulated a broadened right of privacy including the right to acquire obscene materials that Americans have a right to possess. Lawrence, it is argued, thereby trumps the Court’s 1973 decisions holding that the privacy right to possess obscene materials does not extend to a right to acquire them by forcing the court into what is called a “strict scrutiny” analysis, which always should have been the case anyway.
Now, putting aside any Supreme Court precedent, the whole concept that people do not have a right to acquire obscene material that they have a constitutional right to possess is insane. It made no sense in 1973 when the Court decided it the first time, and it makes no sense now. One theory about why the 1973 Supreme Court arrived at that doubtful conclusion then — as well as holding that the obscenity test was not too vague — emanates from here and elsewhere: The Court, in 1973, had just struck down the death penalty (Furman v. Georgia, 408 U.S. 238 (1972)) and all abortion laws (Roe v. Wade, 410 U.S. 113 (1973)) — not to mention spending 20 years upending other conservative social values by integrating schools, giving criminal defendants an array of rights (particularly Miranda), messing up many of the South’s gimmicks to prevent African Americans from voting, and more. Holding that government was powerless to prevent Deep Throat from showing at local theaters atop all of that stood to further erode the dwindling public support for the Court, and Chief Justice Burger persuaded the other three Nixon appointees and Justice White to quietly agree with his approach. (Burger wrote the majority in all five of the 1973 Miller quintet; each was a 5-4 decision with no written concurring opinion.) It has been credibly written that Justice Brennan’s dissent originally was the majority until the Chief Justice persuaded the rest of the Court to allow him to take another stab at it.
Now, not to rain on anybody’s parade, but there are reasons to be concerned about the eventual success of Extreme Associates litigants in the higher courts. Why the pessimism? Well, the author has personally succeeded in having one obscenity statute (California) held unconstitutional, only to lose on appeal, People v. Wiener, 29 Cal.App.4th 1300, 35 Cal.Rptr.2d 321 (4th Dist. 1994), and been significantly involved (working on briefs) in the same scenario with another (Florida). Stall v. State, 570 So.2d 257 (Fla. 1990). Assuming that the government appeals Extreme Associates — a fact that should be known with certainty by the time this hits the streets — it goes to the United States Court of Appeals for the Third Circuit. Fortunately, the Third Circuit has exhibited compassion for the First Amendment of late, notably in the COPA cases. So, maybe that court will see the light. That would be great. And it is critical that the industry muster all of the legal forces available to chime in there. The reason is the Supreme Court.
Yes, the Supreme Court. If the Court is going to look at this issue, then sooner is better, before W can stack the Court with more justices of the Justice Scalia ilk. His comments in dissenting opinions and oral arguments suggest that he does not think that erotic speech is protected by the First Amendment at all. Winning in the Third Circuit is therefore very important, because it would make Supreme Court review a near certainty. The appellate process to the Third Circuit will consume perhaps a year, maybe 18 months.
And here is one last thought on this topic: Suppose justice prevails and the Supreme Court dismantles all consenting-adults obscenity laws. What happens if W succeeds in stacking the Supreme Court as he plans? Will a new Court dismantle all of the good that the Court has done in the last three decades? Roe v. Wade? Lawrence v. Texas? Free Speech v. Ashcroft? A.C.L.U. v. Reno? Let’s face reality: The issue here is whether Bush II will succeed in translating his "moral values mandate" into what it is clear that he wants: Converting America into a right-wing Christian theocracy.
Additionally, given the probability that a loss in one district will not derail Bruce Taylor’s Justice Department agenda, the Supreme Court’s decision on sentencing guidelines is certainly relevant. Last summer’s column about federal sentencing (“Some Terrifying Facts About Obscenity Prosecutions,” AVN, July, 2004) has been significantly undone by a blockbuster Supreme Court decision upending the United States Sentencing Guidelines. In essence, what the Court did was to eliminate their binding effect on sentencing judges. Thus, while federal courts are required to determine the applicable guideline range for each sentencing hearing, the court is free to ignore the guidelines and impose a sentence anywhere within the statutory range.
Historically, most federal obscenity crimes allowed a sentence of up to five years per count. Fines were also available, in ever increasing amounts. And, of course, the 1980s brought forfeitures, first by Jesse Helms’ eleventh-hour amendment adding obscenity offenses as RICO predicates, and later 18 U.S.C. §1467. RICO, which allows forfeiture of an entire “enterprise”, always has been used sparingly, as required by Department of Justice regulations. Section 1467 allows forfeiture only of the instrumentalities used in and profits derived from the offense, and further instructs the judge to take “into consideration the nature, scope, and proportionality of the use of the property in the offense.” Prosecutors are free to use §1467, and, of late, have done so as a rule except in cases when RICO is authorized by the supervising DOJ people in Washington.
The United States Sentencing Guidelines came into being in the 1980s, although only after considerable litigation. The most recent flap over the guidelines arose from defense attorneys’ claims that their clients were being sentenced for conduct untested by the jury process. For example, a defendant, clearly guilty of the single count of mail fraud charged in the indictment and so found by the jury, would face a short sentence. But during the sentencing process, if the judge found by a preponderance of the evidence submitted in the probation officer’s report that the amount involved was hundreds of thousands of dollars, the sentence under the guidelines would be ratcheted up to years rather than months. The fundamental contention, with which the Supreme Court in Booker essentially agreed, was that the above mail-fraud defendant would serve months based upon what the jury found beyond a reasonable doubt and then years based upon what only the judge found, based upon a lesser standard. And from one who spent a good many years in the criminal-defense world, you should be assured that the issue in most criminal cases is not whether the accused is guilty but of how much criminal activity the accused is guilty.
Accordingly, the Court in Booker found that it violated the defendant’s constitutional rights to materially kick up a sentence based upon conduct that the jury never evaluated. That was a widely predicted result (albeit a 5-4 split) given two previous opinions of the Court in other sentencing contexts. The real issue is, “Now what?” The sentencing guidelines are extremely complex — a good match for the Internal Revenue Code. Injecting a jury requirement that Congress never contemplated would have created trial chaos. Juries, after rendering a basic guilty verdict, would have been required to answer an endless array of questions: Was the defendant a “leader,” as defined in the guidelines? Was the defendant a “minimal participant”? Was the defendant guilty of “obstruction”? The list would have been quite extensive. In obscenity cases, the issues would include the amount of pecuniary gain; whether sadomasochistic activity involved; whether the defendant was a “leader,” “minor” or “minimal” participant; whether the defendant used a computer; and so on. Rather than create that sort of complex system, and rather than jettison the guidelines altogether as was urged, the Court simply reduced the guidelines to an advisory status. Thus, although a sentencing court is required to consider the guidelines, it is not required to follow them.
Without re-hashing what was in the previous article, suffice to say that under the guidelines a typical video distributor who is convicted of obscenity is probably looking at a guideline range in the neighborhood of 2-3 years in the can, plus fines and forfeitures and all of the rest. And with the enactment of the Feeney Amendment to the PROTECT Act (see AVN, July, 2003), perhaps most significantly, the sentencing court was prohibited from ordering what is called a “downward departure” — a mechanism that ordinarily would allow the judge to impose a sentence below the applicable guideline range based upon factors that the United States Sentencing Commission did not consider in enacting the Guidelines. So, before Booker was decided, the rock-bottom sentence that a judge could impose in a federal obscenity case would have been the low end of the guidelines — a few years. Period!
So what happens in light of Booker? Good question! What happens in terms of how courts will deal with Booker is almost inconsequential, because most pundits are saying that Congress will react — soon.
During the short time until Congress acts, the sentencing court must take the guidelines into consideration, but is free to disregard them — in either direction. Thus, before being too jubilant about this, remember the North Carolina obscenity case where the defendant was slammed with 25 years, which was upheld on appeal against a cruel-and-unusual-punishment challenge. United States v. Guglielmi, 819 F.2d 451 (4th Cir. 1987).
Of greatest concern is what Congress might do in response to this. It certainly is going to do something. Statutory mandatory minimums are the odds-on favorite. That is, under Booker, judges now must be given latitude to sentence a defendant anywhere within the statutory range, which for most obscenity offenses is presently 0-5 years per count. Congress could simply impose a statutory minimum, as it has done for many drug and child pornography offenses. That, of course, would be a lousy idea, but nonetheless would solve the Booker problem, at least for the prosecutors. So, expect a bill introducing new mandatory minimums for child pornography offenses, but buried deeply within it (perhaps in a floor amendment), mandatory minimum sentences for obscenity cases.
The contours of the inevitable court challenge to mandatory minimum sentences for obscenity assuredly will be the topic of this column if and when Congress enacts them. For now, suffice to say that challenges to mandatory minimums in child pornography cases have been uniformly rejected, although the arguments certainly are not as strong as those against mandatory minimums in obscenity cases, which in the rare and dated challenges to them have received a lukewarm reception at best. Polykoff v. Collins, 816 F.2d 1326 (9th Cir. 1987); State v. Amicone, 689 P.2d 1341 (Utah 1984).
(Clyde DeWitt is a partner in the Los Angeles-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN's offices, at his office at 12121 Wilshire Blvd., Suite 900, Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
