In a unanimous opinion released Thursday, a three-judge panel of the Third U.S. Circuit Court of Appeals overturned the ruling of District Court judge Gary Lancaster and reinstated all charges against Extreme Associates, Rob Black and Lizzy Borden.
Extreme's attorneys, H. Louis Sirkin and Jennifer Kinsley, were undeterred.
"I haven't yet read the opinion, but I got the gist of it from Reed Lee," Sirkin told AVN.com. "So everybody understands, they didn't blow away our argument, and most importantly, they didn't blow us away on standing. They said we had the right to bring the issue, and that puts us way ahead of the game. The important thing is having won it in the district court, because we can now go forward with our appeals ... without having exposed our client to the danger of what potentially could happen in a trial."
"There were certain facts that had to be assumed here in order to do an as-applied argument, which we made," Sirkin continued. "We didn't say the obscenity statute was unconstitutional; we were just saying, under the circumstances of this case, it's unconstitutional, and we were able to get some tentative agreement as to some facts so that Judge Lancaster could make this ruling pre-trial and to start it going up the appellate ladder."
Indeed, the appeals decision barely touched on the factual situation, and only tangentially on the district court's rationale.
"Because we conclude that the District Court improperly set aside applicable Supreme Court precedent which has repeatedly upheld federal statutes regulating the distribution of obscenity in the face of both First Amendment and substantive due process attacks, we will reverse the judgment of the District Court," wrote Judge D. Brooks Smith, who had presided over the appeals hearing which was held on Oct. 19.
In January of this year, obscenity charges against Black and Borden were thrown out in the first federal obscenity prosecution in over a decade. The two were charged in August 2003 with distributing obscene videos to Pittsburgh addresses through the mail and transmitting obscene images over the Internet.
At the heart of the appeals court's opinion was a contention, disputed by Sirkin and Kinsley, that a string of U.S. Supreme Court cases dealing with federal obscenity law had in fact dealt with the substantive due process privacy rights raised by Extreme in its original motions to dismiss, rather than simply whether the materials at issue in such cases as United States v. Reidel, United States v. Thirty-Seven (37) Photographs, United States v. 12 200-Ft. Reels of Super 8mm Film, United States v. Orito, and Paris Adult Theatre I v. Slaton were protected by the First Amendment's free speech clause.
"Noting that Extreme Associates sought to challenge the statutes not on its own behalf but on behalf of the individual privacy rights of its customers," wrote Judge Smith, "the District Court concluded that because '[n]either the Supreme Court nor the Court of Appeals for the Third Circuit has considered a substantive due process challenge to the federal obscenity statutes by a vendor arguing that the laws place an unconstitutional burden . . . on an individual's fundamental right to possess and view what he pleases in his own home,' Extreme Associates' challenge was not precluded by the Reidel/Orito line of cases. According to the District Court, the instant case is controlled instead by Griswold v. Connecticut, Roe v. Wade and their progeny." [Citations removed here and below]
In Griswold, the Supreme Court overturned a Connecticut law preventing physicians in that state from prescribing birth control devices for their patients, while Roe established a woman's right to obtain an abortion. But perhaps the main Griswold/Roe "progeny" to which the appeals decision refers is Lawrence v. Texas, which overturned sodomy laws nationwide by establishing that the government had no legitimate interest in invading its citizens' bedroom privacy.
"In sum," the appeals court found, "the District Court ruled that because Lawrence invalidated the primary rationale for the federal statutes regulating the distribution of obscenity and the Government's cited authority upholding them, and because the Government's remaining asserted interests, even if compelling, were not narrowly advanced by those statutes, the statutes were unconstitutional as applied to Extreme Associates on behalf of its customers. The District Court dismissed the indictment on that basis."
The crux of the appeals decision, however, essentially does not rest on any substantive arguments made by Sirkin and Kinsley, but rather on the claim that Judge Lancaster lacked the power to overrule the federal obscenity opinions in the cases noted above.
"In its Memorandum, the District Court notes briefly, but never directly addresses, the Government's contention that '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 Smith opined. "The Government's brief on appeal raises the same issue by asserting, essentially, that the District Court erred by granting relief which effectively overturns applicable Supreme Court precedents on the ground that those precedents have been undermined or implicitly overruled by a subsequent Supreme Court decision. We agree with the Government that the District Court was in error, and we conclude that the District Court's violation of the principle articulated below requires reversal."
That finding by the appeals court allowed it essentially to ignore the brilliant logic and diligent research reflected in Judge Lancaster's decision, and to focus instead on whether, as the Supreme Court ruled in Agostini v. Felton, Judge Lancaster had applied precedent that had "direct application" to the federal obscenity statutes.
"In Rodriguez de Quijas v. Shearson/American Express Inc., the Supreme Court explicitly admonished lower courts that '[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.' See also id. (pointing out specifically that the Court of Appeals, 'on its own authority,' should not have 'taken the step of renouncing' a previous Supreme Court decision interpreting the Securities Act, even as the Court itself goes on to overrule the decision in that very case). The Court reiterated its position in Agostini v. Felton, stating '[w]e do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent.'"
It's noteworthy that the appeals panel is not here saying that Judge Lancaster's decision is incorrect; merely that the Supreme Court has ruled that lower courts should not take it upon themselves to interpret earlier high court decisions in light of later ones, but rather to leave such reinterpretations to the Supreme Court itself – as that court did in Lawrence, in which it overturned the its own precedent, Bowers v. Hardwick.
The appeals court then went on to consider whether in fact "Reidel's progeny" (the obscenity cases) were "directly applicable" to the Extreme case, though Judge Lancaster had ruled that they were not.
"In the broadest and most obvious sense, the Supreme Court has explicitly and repeatedly, in decisions rendered post-Stanley, upheld the constitutionality of federal statutes regulating the distribution of obscenity," Judge Smith wrote.
The reference is to Stanley v. Georgia, the 1969 Supreme Court decision which found that private possession of obscene material in one's own home is protected by the Constitution. Sirkin had argued, and Judge Lancaster had ruled, that the privacy right at issue in Stanley was meaningless without the ability to obtain the very materials the high court had protected in Stanley – a position reflected in dissenting opinions to many of the obscenity cases the appeals court considered to be "directly applicable" to the Extreme case.
"The District Court stated that Stanley and its progeny do not control the Extreme Associates' motion to dismiss because those cases were all decided merely on the basis that obscenity is not protected under the First Amendment," the appeals opinion states. "Extreme Associates argues that Reidel's progeny dealt only with a 'First Amendment concept of privacy.' As such, the argument runs, the pivotal obscenity cases ignored substantive due process analysis of the 'private possession' right recognized in Stanley and, therefore, did not govern the motion to dismiss. We disagree. It is true that none of the major cases use the phrase 'substantive due process' in their holdings, but it is clear – particularly in Orito and Paris Adult Theatre – that the Court analyzed the federal statutes regulating the distribution of obscenity under both the principles and precedents that, according to the District Court and Extreme Associates, should control this case. Moreover, where such analysis does appear, the Court has found challenges to the statutes under the general constitutional right to privacy unavailing."
In so stating, the appeals court was adopting the government's much-repeated position that all of Extreme's arguments had already been dealt with by the Supreme Court in prior decisions, but a reading of those decisions by no means makes it clear that the high court justices had substantive due process privacy rights in mind when the "Reidel progeny" opinions were rendered.
But the appeals court was determined to follow what it considered to be "direct" Supreme Court precedent in deciding the Extreme appeal, leading it to ignore the Lawrence implications in, for instance, the high court's justification for its decision in Orito.
"As part of its analysis, the Orito Court noted that the Constitution 'extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, child rearing, and education.'" And later, the appeals panel makes reference to the Paris Adult Theatre decision, stating, "Similarly, in Paris Adult Theatre, though the Court dealt with obscenity in a 'place of public accommodation' (a theater), much of the Court's analysis dealt squarely with the general constitutional right to privacy as it relates to the Stanley right. The Court first explained the scope of the right in question by indicating that its 'prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment' referred to a right that 'encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.' ... The Court noted the legally operative difference between the Stanley right and those deriving from Griswold and Roe: 'The protection afforded by Stanley . . . is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and child rearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right of intimacy involved.'"
But the "other special privacy rights" and the "protected intimate relationship" upon which the appeals panel looks so favorable are just the sort of morality-based interests that the high court rejected in Lawrence, as noted in Justice Antonin Scalia's dissent to that opinion.
The appeals ruling further states, "The Court also stated – again, fully conscious of and having made reference to the right articulated in Stanley – that in its decision to uphold bans on transporting obscene material within the stream of commerce, 'no constitutionally protected privacy is involved.'"
Extreme had argued, however, that in this and other similar instances, the Supreme Court had had a First Amendment-based privacy right in mind rather than a substantive due process right – and it seems likely that the high court will have an opportunity to rule on whether that argument is accurate.
Still, parts of the earlier obscenity decisions are problematic for Extreme. For instance, in Paris Adult Theatre, the high court concluded, "If obscene material . . . carried with it a 'penumbra' of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the 'privacy of the home,' which was hardly more than a reaffirmation that a man's home is his castle. . . . Moreover, we have declined to equate the privacy of the home relied on in Stanley with a 'zone' of 'privacy' that follows a distributor or a consumer of obscene materials wherever he goes."
That logic, however, merely seems to pass the buck; it still doesn't deal with how the protected obscene material in Stanley gets to Stanley's "castle" in the first place, and that would seem to be an important issue – but by the appeals decision's reference to Agostini, clearly not for this appeals panel.
"We are satisfied that the Supreme Court has decided that the federal statutes regulating the distribution of obscenity do not violate any constitutional right to privacy," the appeals opinion concludes. "For district and appellate courts in our judicial system, such a determination dictates the result in analogous cases unless and until the Supreme Court expressly overrules the substance of its decision. Lawrence v. Texas represents no such definitive step by the Court. It was therefore impermissible for the District Court to strike down the statutes at issue based on speculation that Orito and other pivotal obscenity cases 'appear to rest on reasons rejected in' Lawrence. Even if there were analytical merit to such speculation, an issue on which we do not opine, the constraint on lower courts remains the same. The possibility that Lawrence has 'somehow weakened the precedential value of' the Reidel line of cases is irrelevant for purposes of ruling on the instant indictment."
But it's language like, "Even if there were analytical merit to such speculation, an issue on which we do not opine" that gladdens the heart of attorneys like Sirkin and Kinsley.
"They didn't blow us away, and that, to me, is really the significant thing," Sirkin responded. "And from the standpoint of this case, and for other people, the issue is still very much alive. I'm disappointed, obviously, but I'm not despondent about it."
"The bottom line is, we knew this panel was not going to be the end of the appeal process, regardless of who won," Sirkin explained. "We could not have drawn a more conservative panel, and the most conservative of the three, the Bush appointee, Judge Smith, wrote the opinion."
"It's like a prize fight," Sirkin concluded. "We won the first five rounds. We lost the sixth round, but we've got the seventh and eighth to go, and it's a 15-round battle. All we have to do is win eight rounds, and I think we can do it."
That "seventh round" will be Sirkin's petition for a hearing en banc – that is, a rehearing of the appeal before most or all of the Third Circuit judges – while the "eighth round" will be the inevitable petition for certiorari to the U.S. Supreme Court, to be filed by whoever loses the en banc decision.
AVN.com will, of course, be covering all future rounds.
