The Third U.S. Circuit Court of Appeals has set dates by which briefs arguing for and against the dismissal of charges in United States v. Extreme Associates are to be filed – which means the case is on a fast track, even though neither side apparently requested it.
"The government's brief is due in April and ours is due is early May," said H. Louis Sirkin, the attorney for Extreme Associates and its two principals, Rob Black and Lizzy Borden. "The quick schedule doesn't surprise me, and I don't know that it means that the case is going to be moved on an expeditious basis. There's no record to be filed. The only transcript there would have been would be the oral argument, and that was typed up by both sides to do the final briefs, and that's all in the record, so there's really not a lot in the case that would usually cause scheduling delays."
"From my standpoint, we might as well get this issue moving," he added, "because I think it would be helpful to get this thing settled."
As things now stand, Judge Gary Lancaster of the Western District of Pennsylvania has combined ideas from several U.S. Supreme Court decisions, including the landmark Lawrence v. Texas decision striking down anti-sodomy laws nationwide, to conclude that Extreme Associates should not be held criminally liable for shipping sexually-explicit videotapes and DVDs, and allowing Internet access to explicit clips, to consenting adults – in this case, a U.S. postal inspector – in the Pittsburgh area.
However, there have been at least two other sex-related cases since the Extreme decision in the Fifth Circuit, where district courts in that circuit have concluded that the substantive due process liberties found in Lawrence are insufficient to strike down the federal obscenity laws. That situation, if the appeals courts in the two circuits uphold their own lower-court decisions, will give rise to what is called "diversity" in the circuits – a situation usually resolved by the U.S. Supreme Court taking one or more of those cases and rendering its own decision on the issues involved.
"I'm hoping that they [the Fifth Circuit] maybe will shed some light and open up because of Lawrence," Sirkin conjectured, "because they're the circuit that got reversed on Lawrence v. Texas, so maybe the circuit itself, with a different judge, might consider the issue."
