With the Extreme Associates obscenity trial still months away, the company's defense team has filed another motion to dismiss the indictments against Extreme and its co-owners Rob Black and Lizzy Borden – this time challenging whether the all-too-familiar "Miller test" for obscenity can be applied to the World Wide Web.
The new motion, filed by H. Louis Sirkin and Jennifer M. Kinsley, also names a new member of the defense team, Pittsburgh attorney Warner Mariani, as co-author.
The attorneys have asked Judge Gary Lancaster, whose brilliant analysis in granting an earlier Motion to Dismiss was later reversed by the Third Circuit Court of Appeals, to consider new arguments for dismissal; among them:
• That the federal obscenity statutes are unconstitutional;
• That the Miller test's requirement that the charged material be "taken as a whole" is impossible to accomplish in the context of the World Wide Web;
• That the "community standards" prong of the Miller test used in determining whether a particular work is obscene cannot be applied to an online "community";
• That obscenity code Sections 1461 ("Mailing obscene or crime-inciting matter"), 1462 ("Importation or transportation of obscene matters") and 1465 ("Transportation of obscene matters for sale or distribution") are impermissibly overbroad; and,
• That the digital video clips charged in Counts 5 through 10 of the indictment do not fall within the range of tangible material eligible for prosecution under two sections of the obscenity law.
Should the Court decide that the above points are insufficient for a dismissal of the entire indictment, the motion also asks that the Court clarify certain points of law before the case moves forward:
• That the "material to be taken as a whole" regarding the charged video clips refers to the entire Extreme Associates website;
• That the applicable "community" within which the charges are to be considered, for the purposes of the Miller test, is the entire World Wide Web; and,
• In the alternative, if the Court rules that the "community" has to be a geographic area, that that community should be the Central District of California, where Extreme's headquarters are located, rather than the Western District of Pennsylvania, where the clips were originally viewed by postal inspectors.
More on this breaking news story tomorrow.
Pictured: Rob Black.