It was standing-room-only in Courtroom 3A of the federal courthouse here – ironically, the same courtroom in which Judge Gary Lancaster had originally heard the arguments to dismiss the obscenity charges against Extreme Associates – and of the approximately 50 spectators, only six could be identified as supporting defendants Rob Black and Lizzy Borden.
On the bench were two Reagan appointees – Judge Stapleton and Judge Nygard – and one Bush appointee – Judge Smith – so it was clear from the outset that attorneys H. Louis Sirkin and Jennifer Kinsley, representing the Extreme accused, would have their work cut out for them.
“Given the fact that Judge Stapleton has previously ruled on privacy issues in an abortion case [Casey v. Planned Parenthood], and he recognized the right of privacy there, that bodes well given his prior ruling,” opined First Amendment attorney Allan Silver, who observed the proceedings on Wednesday. “But I think the biggest problem is going to be, if we get that one vote, where is the other vote going to come from? Judge Nygard didn’t say a word, and Judge Smith has some decisions that are very questionable from our standpoint.”
As the appellant, the government, represented by U.S. Attorney Mary Beth Buchanan, argued first, and her argument was straight down the “party line”: Obscenity has no First Amendment protection; the U.S. Supreme Court has so ruled many times, such as in the case of U.S. v. Rydell, where it prohibited distribution of obscene material even if both the buyer and the seller wanted to receive it, and in U.S. v. Orito, which criminalized even the private importation of obscene material for strictly private use.
“What standard of review was used in that case?” Judge Stapleton asked Buchanan of the Orito decision; an important point, since one of Sirkin’s arguments has been that the federal obscenity laws as applied to the Extreme case deserve strict scrutiny, requiring a higher level of proof to be upheld than the “rational basis” test which the government wants applied to the case.
But the Supreme Court never made clear which level of scrutiny it had applied in Orito, so the discussion moved onto what “relevant right” was at issue in the case. Buchanan argued that it was the privacy right established by the Supreme Court under the First Amendment in Stanley v. Georgia, which legalized the ownership of obscene material in a private home. But while that right exists in the home, Buchanan argued, it stays in the home; it doesn’t follow the material itself outside the home.
Judge Smith then asked, if that were the government’s position, could the appeals court then decide this case strictly on the precedents established in all of the prior Supreme Court obscenity cases? Buchanan argued that it could, claiming that Lawrence v. Texas, the seminal sexual privacy case which struck down laws criminalizing consensual sodomy between consenting adults, does nothing to change the high court’s analysis of the illegality of commercial transactions of obscene material. She argued that Judge Lancaster found a substantive due process right of liberty in the Lawrence case that, according to the government, doesn’t exist, and further argued that the Supreme Court had implicitly already considered the liberty implications of its ruling in Stanley previously and had rejected them.
When it came Sirkin’s turn to present his case, he cut right to the heart of the matter. What is missed, he said, is that this isn’t a First Amendment liberty interest challenge, but rather a challenge based on the liberty and privacy interests to be found in the substantive due process rights guaranteed under the Fifth Amendment.
“She [Buchanan] didn’t address the Fifth Amendment argument, the substantive due process argument, which is the whole guts of the case and the whole guts of Judge Lancaster’s decision,” Sirkin later noted. “She absolutely did not talk about it. She talked about traditional First Amendment law, and I don’t think she can. After Lawrence opened the door back up, they have to go back and revisit Stanley.”
The privacy right, Sirkin said, goes back to Griswold v. Connecticut, and Judge Lancaster, in his opinion, drew a direct line from Griswold to the case at issue.
“It’s Stanley to Griswold to Lawrence,” analyzed attorney Allan Gelbard, who also observed the proceedings. “The history is that initially when contraception was a big deal, the Supreme Court ruled [in Griswold] that people had a right to practice it, but there were still states that restricted sales because of their religious beliefs by saying, ‘Well, you can have it, but we’re not going to let anybody sell it to you.’ What Griswold is all about is that particular issue.”
“Now, in light of Lawrence, where people have fundamental rights to sexuality and a much broader sense of it than was anticipated before, if you have a fundamental right to watch dirty movies in the privacy of your own home, which is what Stanley says, then somebody has a right to get them there, and if the fundamental right of the liberty interest is expanded, which is what Lawrence does, then the old cases like Paris Adult Theatre aren’t good law anymore. They’re not overruled in the sense that the Court is going to say, ‘We hold Paris Adult Theatre to be overruled.’ What it does is, it undercuts the rationale for Paris, which is, the government has the ability to restrict these types of establishments because they want to protect the morality of the public, and people could walk into a movie theater not knowing what they’re going to see, and this type of a seedy theater would bring down the society and arguments like that, all based on morality. What Lawrence says is, morality isn’t a good enough reason anymore, and when you look at that, you ask, what is the government interest? It doesn’t have one anymore. Now you’re looking at a fundamental right.”
Indeed, Judge Stapleton brought up that exact point when he quoted a section from Paris containing several rationales for the government’s interest in controlling the dissemination of obscene material, and after the recitation asked Sirkin if all of those rationales amounted to a moral justification for the ruling.
Sirkin said that it did, and noted that Justice Anthony Kennedy, in his majority opinion in Lawrence, noted that “Times have changed; we’ve evolved from Paris Adult Theatre.”
“Paris is one of the starting points of the analysis,” noted attorney Ed Rudofsky, a New York-based First Amendment attorney who was present for the argument, “but the question is, as Judge Stapleton asked, what is the effect of Lawrence on the Paris analysis? You don’t have to start from the position that all obscenity is contraband and that the transportation of all obscenity can be regulated by the government as it sees fit. As Reed [Lee, another attorney present for the argument] was pointing out, the question becomes, for what reason are you regulating it? And there may be certain circumstances where the fact that it’s obscenity is irrelevant. Where you start your analysis can dictate where you end up.”
“This is not a facial challenge to the obscenity doctrine,” Gelbard emphasized. “This is an ‘as-applied’ challenge, which means as to the essential facts of this case, you’re got consenting adults making content; they’re offering it through a secure system where children can’t get there and nobody is going to be inadvertently exposed to it. It’s purchased by consenting adults in the privacy of their own home using a credit card that validates their age, and under those sets of facts, you’ve got a greater protection. I think it’s a fantastic argument. It makes perfect sense.”
“We’re not asking the court to throw out obscenity laws,” Sirkin told the three-judge panel. “This is an ‘as-applied’ attack.”
Sirkin’s argument appeared to have no effect on Buchanan. When it came her turn for rebuttal, she reiterated her stance that the appeals court could base its decision in Extreme solely on past Supreme Court obscenity decisions, and she also attempted to point out what she described as “errors” in Judge Lancaster’s decision, perhaps primary among them that in its Stanley decision, the high court had found no fundamental right to privacy or liberty – a claim disputed by all of the First Amendment attorneys who had observed the proceedings.
Buchanan also argued that the government’s interest in protecting morality, as it laid out in the Paris decision, was still valid even post-Lawrence.
“Morality continues to be a valid government interest,” she told the judges. “Interest as valid today as when the Supreme Court considered those issues back then.”
“Paris was decided the same day as Miller [v. California, which established the three-prong test for obscenity], and serves as the framework of our modern-day obscenity jurisprudence,” Silver later noted, “so obviously Paris is an important case, and there’s some language in Paris that is troubling as quoted by the judge because it would appear that Paris was decided on the basis of rational scrutiny and the only way you’re going to avoid that is by showing that this is not only factually different, as Louie did, but also that we’ve come a long way, baby, as far as the law is concerned, on the area of privacy and a fundamental right is concerned, and that this is a strict scrutiny rather than a rational basis case.”
“I think it was clear the court understood the arguments,” Gelbard assessed. “In fact, it struck me that one of the more conservative justices was trying to point out to the U.S. Attorney that perhaps the government has actually missed the point all along. This isn’t really an obscenity case per se; it’s a privacy case, in light of Lawrence, not of Miller, and the judge threw couple of softballs at the U.S. Attorney, which she either didn’t see or swung right over. Louie did an excellent job of hammering that home and saying, as far as I’m concerned, the basis of this case, the obscenity issue is completely irrelevant. It’s, do people have a right to do this? Is there a fundamental right under the liberty interest and under substantive due process, and I think Louie drew that issue very clearly for the court.”
Gelbard was also puzzled by Buchanan’s failure to deal with the substantive due process argument.
“I find it hard to believe that the United States government doesn’t have some lawyer somewhere who read this brief that had the light bulb go on over their head and said, ‘Oh, yeah, I get it’,” he said. “Extreme’s brief and the FALA [First Amendment Lawyers Association] brief lay out the argument very clearly. The FALA brief that Reed Lee wrote is legal art, and it really does, in a very succinct way, explain why this is protected speech/conduct. The government can’t seem to get over the fact that Paris Adult Theatre says you can prohibit the dissemination of obscenity. They’re sticking with that argument because either they can’t see that it doesn’t apply, or they have no argument to argue that it doesn’t apply. Either you don’t see it or you have to ignore it.”
“I’m sure the Court gets it,” Gelbard continued. “Whether the court will rule for us or not for certain political reasons is another question. We did have a very tough panel; they’re three pretty conservative judges. I think they understand the argument. Whether they agree – I’m sure it’s clear to the panel that this case is going to go further no matter which way they rule. The court was packed, the media was there – judges look at these high-profile cases with a little more scrutiny, a higher level of scrutiny because they don’t want to be overruled; they don’t want to make the wrong call. Judges have some pride in what they do, and there’s very little question that this case, regardless of which way it goes, is going to be subject to en banc review in the Third Circuit. Depending on which way that goes, if the government loses, I think the odds of it going up [to the Supreme Court] are very great. If the government wins, I think there’s still a good chance that this goes up. I think there are four votes to grant cert in this case. You only need four to get it up there, so it’s very likely that we might get enough judges on the Supreme Court to take this case.”
Reed Lee agreed.
“If this were before the Supreme Court now, with the current justices,” Lee said, “I think Lou’s argument would carry the day.”
In January of this year, obscenity charges against Black and Borden were thrown out. 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 Wednesday’s court proceedings.
