In a development that surprised few, the U.S. Supreme Court today denied review of the U.S. Third Circuit Court of Appeals' decision reinstating charges against Extreme Associates, Rob Black and Lizzy Borden for interstate trafficking in obscene matter.
The rejection had not been expected quite so soon, however, since Extreme's petition had been filed just one month ago, and the response from the U.S. Department of Justice would not be due for at least two more weeks. However, according to Jennifer M. Kinsley, co-counsel for the Extreme defendants, the government waived its right to file a response, leaving the high court free to make its decision.
Even with the Supreme Court's ruling, it is unlikely that United States v. Extreme Associates will be going to trial anytime in the near future.
"There are some unresolved pretrial issues," Kinsley noted, "including the issue that's percolating in the COPA case about community standards, and we did brief that at the judge's request prior to his decision on the Lawrence issue, but he did not resolve that issue. So that's something that still needs to be taken care of before any sort of trial proceeding would occur, because we need to understand what standard are we talking about."
The COPA case – technically, Ashcroft v. American Civil Liberties Union – has been before the U.S. Supreme Court twice, and twice the high court has ruled that the Third Circuit Court of Appeals' objections to, first, the Child Online Protection Act's application of the Miller test's "community standards" prong to the World Wide Web, and second, the Act's overbreadth, were not in themselves sufficient to invalidate the measure. Therefore, the case has been set for trial in U.S. District Court in Philadelphia, which trial is predicted to begin sometime next spring.
A ruling on COPA would be crucial to deciding the Extreme case, since most of the obscenity charges in Extreme involve video clips posted on Extreme's website, and the question of any material's "obscenity" is dependent in large part upon whether such material offends the "standards" of the "community" within which the material was first charged.
The government will undoubtedly argue that because postal employees obtained access to the password-protected material in their Pittsburgh, Pa. offices, that that would be the "community" at issue. However, U.S. District Court Judge Gary Lancaster's January, 2004 decision which voided the charges against the defendants did not mention the community standards issue at all, focusing instead on the case's defects under, among other things, the Supreme Court's ruling in Lawrence v. Texas.
"It's been well over a year since we last even talked to Judge Lancaster," Kinsley stated, "so the standard thing to do would be to put this on for some sort of a status conference where the attorneys could come in and sort of informally update the judge as to where things stand, and at that point, we would remind him that this is an issue. We would need to do some supplemental briefing on the issue, because at the time we turned our briefs in, the Supreme Court hadn't come out with its second decision; it was just a Third Circuit opinion at that point. So there's updates and case law that need to happen, and additional briefing that needs to be done."
Judge Lancaster had entered a stay in the proceedings regarding the Extreme defendants until the Supreme Court had ruled on the petition for writ of certiorari (see Extreme Associates Petitions The U.S. Supreme Court), and while that stay may be lifted in the near future, it is currently still in force. One factor which could keep the stay in place is the COPA trial.
"I don't know if the judge is going to want to wait on that to see what to do in our case, or how he's going to want to handle it," Kinsley said, "but certainly, this does not mean that we're going to have a trial tomorrow as to whether or not the material is obscene."
Also central to the Extreme case are the commercial implications of the Supreme Court's 1969 ruling in Stanley v. Georgia, which decreed that citizens were constitutionally free to own obscene materials in the privacy of their own homes. Although several later decisions held that people could not buy or sell such materials, those decisions were based on the idea that government had some vested interest in promoting public morality – an interest which the Court's most conservative justice, Antonin Scalia, claimed was destroyed by the Lawrence decision. However, Extreme's cert petition only peripherally dealt with the commercial aspects of obscenity, focusing instead on the morality and Internet privacy issues.
Finally, there are still some outstanding discovery issues in the case, with each side yet to provide the other with certain previously-requested documents.
"So those kinds of things also need to take place," Kinsley summarized, "so I would imagine, if this case goes as I think it will go, we're not looking at having a trial until maybe early next year, and depending on what happens with COPA, possibly not until after that."
There is a dark cloud, however, looming over the entire proceeding. As anyone familiar with First Amendment law knows, taking an obscenity case to the U.S. Supreme Court can easily cost more than a quarter of a million dollars. Extreme Associates and its owners have just been there and been forced, essentially, to begin the process all over again – and sources say that the defendants are running out of money. In fact, it was only through the generosity of a Free Speech Coalition member (who wishes to remain nameless) that the necessary printing of Extreme's Supreme Court petition was able to be accomplished – and what's ahead will be even more costly.
When asked about the money issue, Kinsley refused to reveal any of her clients' confidences on that subject. However, she did note that, "we're going to need to consult with some outside experts and bring in some outside people, and that's obviously going to take money as well."
Jan LaRue, chief counsel for the ultraconservative Concerned Women for America, posted today on CWfA's website the prediction that, "Like most who are charged with violating obscenity laws, the owners will probably accept a negotiated plea bargain rather than face conviction by a jury and sentencing by a judge." Black and Borden have announced their intentions not to take that course – but if they cannot afford to fight their case, they may have no choice.
Despite the feelings of many in the adult industry about the Extreme material charged as obscene, and about Black personally, the issues raised by the defendants' attorneys are vitally important to all adult content producers, so if Extreme's rumored money shortfall is in fact true, something will need to be done – and soon.
