H. Louis Sirkin, the attorney for Rob Black and Lizzy Borden in the interstate/internet obscenity prosecution filed several months ago by Assistant U.S. Attorney Mary Beth Buchanan, was a little peeved by the headline in the Pittsburgh Review-Tribune in today’s issue: “Rape, Snuff Films Protected, Defense Argues.”
But, Sirkin said, “The media was very, very receptive to us. They talked to me for a long time afterwards, and they’re getting the picture and the argument about this liberty interest.”
The key phrase in Sirkin’s argument on Monday about “liberty interest” before U.S. District Court Judge Gary Lancaster was “substantive due process,” a legal theory dating back decades but which was most recently brought back into the public eye in the U.S. Supreme Court’s decision in Lawrence v. Texas, which invalidated a Texas statute prohibiting consensual sex between two adults of the same gender.
Justice Antonin Scalia, in his dissent in that case, claimed, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' [v. Hardwick, the original anti-gay-sex case] validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.”
Judge Lancaster “asked me in chambers whether this argument had been made before, on the substantive due process,” Sirkin explained, “and I said I’d raised it in Louisiana, and that case sort of ended with an agreed sentencing so we didn’t appeal it. And I said I have the issue pending in Cincinnati and it’s an appellate issue which will be argued in December. The government then started to argue that nobody’s accepted it, and the judge came back and said, ‘He’s only expressing what Justice Scalia said in his dissent. You know, he’s saying just what Justice Scalia said, that that’s what Lawrence means.’”
Sirkin said that that statement appeared to take a bit of the wind out of the government attorneys’ sails. After all, if the Supreme Court’s most anti-sex judge agrees with Sirkin’s argument, even though Scalia did make it clear that he didn’t like it, where’s a prosecutor to go for validation?
The U.S. v. Extreme Associates case may turn out to revolve around the fundamental issue of what sexual enjoyments adults may have in their own home. In his argument to the court, U.S. Attorney Steve Kaufman, who presented the majority of the government’s case at the hearing, referred to the 1969 Supreme Court decision in Stanley v. Georgia, in which the court ruled that although a Georgia man should not be prosecuted for having obscene material in his home, the government retained broad power to regulate the sale and distribution of such material.
Sirkin, however, called into question the logic of that argument.
“It doesn’t make any difference whether the material is obscene or not,” Sirkin noted. “As long as it’s being disseminated into the hands of people who are going to use it privately, it’s like the sale of contraceptives. Somebody’s got to sell them for somebody to use them at home. So it’s a privacy issue, not a First Amendment issue, and he [the judge] picked up on that, and we talked about what did Stanley v. Georgia really mean? And I said Stanley v. Georgia talked about the freedom of thought and getting those ideas and viewing those ideas in your own home.
“I said, ‘But if you historically follow the doctrine, contraceptives aren’t made in someone’s home; they’re ultimately purchased and taken there.’”
Kaufman also brought up the 1973 Supreme Court case, U.S. v. Twelve 200-Ft. Reels, in which the high court rejected a defendant’s argument that the right to possess obscene material in the home – the 12 rolls of film he’d brought into the U.S. from Mexico – creates a right to acquire it or import it.
“So I said, ‘We’ve moved a long way since 1973 and ’74 and starting with the decision in Lawrence, it now seems clear that I have the right to find different ways to sexually arouse myself and to pick those ways out as long as I’m doing it privately,’ Sirkin answered. “I said, ‘Just think that 30 years ago, we would have never seen an ad for Viagra, and to think today we see it with Senator Dole advertising it, and we now recognize that sex is not only for procreation but for some sense of enjoyment, and therefore, I have that corollary right not only to possess the material at home, but to be able to purchase it and for someone to sell it to me for what in essence may be some stimulation.’”
Sirkin was overjoyed at how receptive Judge Lancaster seemed to be to that argument.
“The government got up and tried to keep arguing about Stanley v. Georgia and the privacy of one’s own home and all that, and freedom of speech, and that ‘the Supreme Court has clearly ruled’ – and the judge said, ‘Wait a minute; Mr. Sirkin’s not talking about the First Amendment; he’s talking about substantive due process. He’s talking about a liberty interest. Now answer that. What is the compelling governmental interest to be protected in keeping people from having this?’
“And they started with the hedging and hawing; you know, the typical, ‘Well, it could get into the hands of kids,’ and the judge said, ‘We’re not talking about in the hands of kids; we’re talking about people that are consenting adults who ordered it.’”
“One of the examples the judge used,” Sirkin continued, “was, ‘You’re saying, under Stanley, they can possess and think it, but let me give you this example: It’s okay for me to read the Communist Manifesto in my home, but how do I read it if I can’t get it? That’s like saying there’s a bunch of reporters in the courtroom right now, and they can write about this whole thing, everything they hear in here today, and go back and do this article, but you know what? If they can’t buy ink, they can’t do it, can they? It’s a point about having some right to do something
that’s meaningless.’”
Although Monday’s hearing was supposed to consist solely of arguments on the various motions filed by the parties, Judge Lancaster allowed the government to present two witnesses: An Internet expert who testified that Extreme Associates could have used existing “geo-locator” technology to prevent Web surfers from accessing allegedly obscene video clips available on Extreme’s Website, and a U.S. postal inspector who claimed that the company knew not to mail sexually explicit materials to the Pittsburgh area.
“They put on the postal inspector to say that when they executed the search warrants at Extreme, they found a chart on the wall that said, ‘Don’t ship to these areas; only by UPS,’ Sirkin recounted. “The guy was trying to make the insinuation that those were no-mail areas, and I objected, and the guy said, ‘Well, I assume the reason they did that was that they didn’t realize that it’s also a crime to use a common carrier; they thought you just don’t mail to these areas.’
“I objected to that, saying, ‘That’s what he’s assuming. The document says you send to these areas by UPS, so that doesn’t mean you don’t send to those areas.’ And the judge said to the Assistant U.S. Attorney, ‘What are you trying to prove? Do you want to put the document on? Put it on. Don’t let people tell me what it doesn’t say. It says send it by UPS; it doesn’t say not to send it there. So the document, I’ll let in for whatever purpose.’”
In all, the day’s arguments only took an hour, but “it was great; it really was,” Sirkin summarized. “We haven’t set any trial date; the judge is really going to study this, and he’s also fascinated by what the implications of COPA is, even though it’s back on remand, because he still feels that the questions about community and ‘taken as a whole’ are still out there, and they are still out there.”
“The court was really receptive and had really read the memo on the motion to dismiss on the Lawrence concept, on the substantive due process, and he had some really probing questions... I think I used the term, ‘We’ve come a long way, baby, from then, and it’s time to re-look at it in light of where we are today,’ and I think that’s what really happened in Lawrence, when they re-looked at Bowers.
“It’s a different time, and the Supreme Court certainly recognized it in the opinion of Justice Kennedy, and I think it’s unarguable; it’s the logical next step, and I think we’re right in tune. And at least he [Judge Lancaster] listened and he didn’t blow us off. It was a nice experience.”
On the request of Buchanan, both sides have 45 days within which to file briefs in support of their in-court arguments and to answer questions propounded to both sides by Judge Lancaster. A decision on the motions will come sometime after that, but Sirkin said he could not predict when.
However, if there are any charges still pending after the judge’s ruling, a trial could not start before mid-2005.
