Extreme's Attorney Explains Challenge to Obscenity Indictments

Here's something readers (and even writers) of AVN may not have known: When the U.S. Supreme Court, after having considered a circuit court's opinion, remands that case for further consideration or for trial, if the high court's opinion regarding that remand doesn't specifically deal with the issues raised in the circuit court's opinion, those issues remain the law in that circuit.

In more concrete terms, when the Third Circuit Court of Appeals considered Ashcroft v. ACLU – the Child Online Protection Act case – for the second time (COPA II), after it was remanded to them by the Supreme Court, the Third Circuit issued a ruling that Jennifer Kinsley, a member of the Extreme Associates defense team, thinks will be very helpful in getting the indictments against Extreme and its co-owners Rob Black and Lizzy Borden thrown out.

"The Third Circuit's second COPA decision was only taken up by the Supreme Court to the extent that it determined that filters constituted the least restrictive alternative," Kinsley told AVN.com in an exclusive interview regarding the defense's Motion to Dismiss the Extreme indictments, filed last week in District Court in Pittsburgh. "The remainder of the analysis in that decision was not addressed by the Supreme Court and therefore remains completely intact, and since we're in the Third Circuit, it applies to us."

The "remainder of the analysis" was an expansion of the Third Circuit's finding in COPA I that when it comes to the use of the term "contemporary community standards" in the Miller test for obscenity, the "community" of the World Wide Web is, well, the whole wide world.

"We held that the reference to 'community standards' in the definition of 'material that is harmful to minors' resulted in an overbroad statute," wrote the Third Circuit in COPA II. "Because the Internet cannot, through modern technology, be restricted geographically, we held that the 'community standards' language subjected Internet providers in even the most tolerant communities to the decency standards of the most puritanical."

The Third Circuit also noted that the Supreme Court, in its COPA I decision, "merely held 'that COPA's reliance on community standards to identify "material that is harmful to minors" does not by itself render the statute substantially overbroad for purposes of the First Amendment'."

But according to Kinsley, "The Third Circuit said, 'Well, that might not be enough alone, but it is a problem, and so are all these other things a problem'." And the problem exists as to all sexual material, not just that which might be considered "harmful to minors."

Foremost among those other problems was the fact that the statute was overbroad; that it sweeps in much more material for censorship than could be justified under the First Amendment, which protects sexual speech that the courts do not deem to be obscene – and Kinsley argues that the charged Extreme material would be considered protected under the Third Circuit's standard.

An even stronger argument, however, which the defense is also advancing in the current motion, is the meaning of the phrase "the work, taken as a whole," in the context of obscenity. Precedent states that the prosecution cannot separate out individual paragraphs, images or film/video clips from the works in which they appear, and attempt to get obscenity convictions on those snippets alone. Rather, those texts and images must be considered within the context of the entire book or movie from which they're taken. And for Kinsley, that context is, at minimum, the entire Extreme Associates website.

"These video clips that the government has charged, they're all less than a minute in length," Kinsley noted. "I think it's important to take things in context, and I think the fact that the more content that there is, and fact that the site itself is purely sexual, dilutes the prurient interest that may be appealed to by watching a single short video clip."

"These video clips are embedded in a members-only part of the website," she continued, "so in order for someone to even look at them, they would have had to, at a minimum, go to the Extreme Associates home page, log in, go to the 'Piss Zone,' which is where they all were, and then look at these individual clips, so there's no way that a viewer could even have viewed these clips in isolation."

But even using the entire Extreme website as "the work, taken as a whole" is a fall-back position for the defense. As far as they're concerned, since all parts of the Web are connected by URLs and hypertext links, "the work" is in reality the entire World Wide Web – and if the government can't find any "serious literary, artistic, political, or scientific value" (to quote one "prong" of the Miller test) anywhere on the Web, it's just not looking.

Another interesting argument contained in the Motion is that the video clips being charged as "obscene" on Extreme's website don't meet the definition of "obscene material" as set forth in Sections 1461, 1462 and 1465 of the federal criminal code because, in essence, they are merely electronic impulses until a computer translates them into words or images. Therefore, argues the defense, the clips are not "tangible," and are not eligible for prosecution under the statutes.

"The list of items that obscenity law covers on its face, they're all tangible things," Kinsley explained. "They're photographs, a magazine, a book, a reel of film – things that you can hold in your hand. I am not a tech geek, but the argument has been advanced that things that you would look at on the Internet are not actually themselves images because they are codes, they're numbers and letters and a series of data that all come together when the computer translates it into something. So what's sent out is not tangible as anything other than electronic code."

It's a subtle argument – but fortunately, District Court Judge Gary Lancaster has shown that he's able to comprehend subtle arguments, as evidenced by his excellent opinion in January of 2005 dismissing the indictments. Those charges, however, were reinstated later by a panel of Third Circuit judges.

Along with the "tangibility" argument is the defense's motion asking the court to rule that, if the "community" must be a geographical area, that that area should be the Central District of California, where Extreme's headquarters are located, rather than the Western District of Pennsylvania, where postal inspectors accessed the material and where the indictments were obtained. It is only at Extreme's headquarters, Kinsley argues, that anyone knows that the video clips in question physically exist; everything else is just computer code traveling as electrical impulses.

Establishing southern California as the "community" should be an automatic win for Extreme, since that would mean that the obscenity indictments were obtained in the wrong jurisdiction. Kinsley and partner H. Louis Sirkin faced a similar situation in the 5-Star Video case, where it appeared that the government planned to try 5-Star, a video distributor, and JM Productions, a video producer, for obscenity in Arizona based on the community standards of Virginia, where certain DVDs were shipped. Kinsley and Sirkin, who represent JM in that case, moved that the indictments be dismissed on the basis that an Arizona jury could not know what the community "obscenity" standards were for Virginia; however, the government clarified that it did not intend to use Virginia standards, but rather the local Arizona standards, when/if the case comes to trial. The government would be facing a similar dilemma if Judge Lancaster rules that the "community" in question is the Central District of California.

Sirkin had recently advised that he thought the Extreme trial would probably begin in the summer of 2007, but depending on Judge Lancaster's ruling on the current Motion to Dismiss, that date could easily be pushed back to late fall, or even to the beginning of 2008.