Extreme Associates began the next phase of its obscenity battle with the U.S. government today as attorneys for both sides argued the dismissal of the indictments against the adult company before a three-judge panel of the Third U.S. Circuit Court of Appeals.
In January of this year, obscenity charges against Rob Black and wife Lizzy Borden of Extreme Associates were thrown out by a federal judge in Pittsburgh in U.S. vs. Extreme Associates, the first federal obscenity prosecution in over a decade. Black and Borden were charged in August 2003 with distributing obscene videos to Pittsburgh addresses through the mail and transmitting obscene images over the Internet. The two were not present for today’s court proceedings.
At least 50 onlookers crowded into Courtroom 3A of the U.S. District Courthouse here to witness today’s arguments – and the statements themselves were so compelling that at the conclusion of U.S. attorney Mary Beth Buchanan’s argument, Judge Smith remarked, “Is it 20 minutes already?”
The entire court session lasted just 50 minutes, but left even observers fatigued. Most of the First Amendment attorneys present opined that Extreme Associates attorney H. Louis Sirkin had made a much better argument than his opponent on the issues involved. They also expressed hope that if the panel considered the arguments without bias, they would uphold Judge Gary Lancaster’s dismissal.
The Appeals Court panel consisted of two Reagan appointees, Judge Stapleton and Judge Nygard, with Judge Smith as the lone Bush appointee.
If Extreme prevails, the likely next step would be for the government to request a hearing en banc of the entire Third Circuit Appeals Court, or it may decide to petition the U.S. Supreme Court directly. Likewise, if Judge Lancaster’s decision is overruled, the defense has both of those options open to it as well.
Still, Extreme faces an uphill fight to get the court to understand that U.S. vs. Extreme Associates is really a privacy case rather than a First Amendment case.
Ms. Buchanan spent over 10 minutes Wednesday reciting for the court prior First Amendment decisions by the U.S. Supreme Court dealing with the concept that obscenity is not a First Amendment right.
She referenced U.S. vs. Orito, where the Supreme Court had ruled that an individual cannot transport obscene material even for his own use, and U.S. vs. Rydell, which prohibits the distribution of obscene material even if both the seller and the buyer want to receive it. After that recitation, Judge Stapleton inquired what standard of review Supreme Court had used in deciding Orito; that is, had the court employed strict scrutiny or a rational basis test. Ms. Buchanan replied that the Court had not discussed what level of scrutiny it had used in coming to its decision, at which point Judge Stapleton inquired what relevant right the court had considered.
Ms. Buchanan said that the seminal case regarding obscene material was Stanley vs. Georgia, where the Supreme Court had ruled that possession of obscene material in the privacy of one’s own home was protected, but she noted, in subsequent decisions the Court had failed to extend that right of possession to the public sphere as a First Amendment right. She noted that although Stanley protects that right within the home, the right remains in the home; it does not follow the material.
At that point, Judge Smith asked if, at this level, a decision could be made based solely on prior First Amendment decisions and Ms. Buchanan agreed, arguing that Lawrence vs. Texas [the decision legalizing consensual sodomy] does nothing to change the High Court’s analysis regarding obscene material.
Ms. Buchanan said that Judge Lancaster found a liberty right in the Lawrence decision which she claimed was not there. She also said that the Supreme Court had considered arguments regarding substantive due process claims of liberty and privacy, and had already rejected them.
The Extreme attorney Sirkin jumped right into his presentation by noting that, what is missed here is that this isn’t a First Amendment liberty interest challenge, but a challenge under the liberty interest of substantive due process. He went on to say that in Lawrence the Supreme Court had protected the privacy of individuals from unwarranted intrusions into their bedrooms; a privacy right that goes all the way back to Griswold vs. Connecticut. He noted that all of the First Amendment obscenity cases cited by Ms. Buchanan had referred in some way to public display of the material, whereas the case at hand involved material that was seen only by the sender and the receiver, both of whom knew exactly what they were getting.
Judge Stapleton then questioned whether the Paris Adult Theatre case which involved the showing of an obscene film in a movie theater had been overruled by Lawrence. The judge quoted a specific portion of the decision, which dealt with the effects the court believed that viewing the material would have on society, and whether those effects constituted the “morality” interest that had been rejected in Lawrence.
Sirkin had replied in the affirmative, and added that in his opinion in Lawrence, Justice Anthony Kennedy had talked about the fact that in regard to society’s reaction to sexual materials, times have changed.
“We’ve come a long way since 1973,” Sirkin said, referring to the year of the Paris decision.
“We’re not asking the court to throw out obscenity laws,” Sirkin noted. “This is an as-applied attack.”
Then Ms. Buchanan returned to the rostrum and once again argued that the panel could consider this case based on solely on past Supreme Court decisions. She claimed that there were many errors in Judge Lancaster’s decision, including the assertion that the Supreme Court had found no fundamental right to privacy or liberty in the Stanley decision. However, according to several of the attorneys present, that statement was factually incorrect.
Ms. Buchanan claimed that protecting morality was still a valid government concern and that the Lawrence decision did not prevent it from doing that.
Among the other First Amendment attorneys present were Sirkin’s associate Jennifer Kinsley, Allan Silver, Ed Rudovsky, Reed Lee and Allan Gelbard. A representative from the American Civil Liberties Union also watched the arguments.
