On Dec. 22, H. Louis Sirkin, attorney for Extreme Associates as well as its owners Rob Black and Lizzy Borden, filed a motion with the Third U.S. Circuit Court of Appeals for an en banc hearing of the government's motion to reinstate the federal obscenity charges against the defendants.
An en banc hearing, if Sirkin's motion is granted, would mean that most or all of the 14 Third Circuit appeals judges would rehear the arguments presented last October to a three-judge panel of that circuit. That panel found against Extreme, vacating Judge Gary Lancaster's pre-trial order and reinstating all of the government's original charges against the defendants.
"Absent an en banc review, the panel's decision threatens to jeopardize the emerging right to privacy, particularly in matters affecting human sexuality, that has been recognized by the Supreme Court," Sirkin wrote in his motion.
"Second," the motion continues, "the panel improperly applied the Supreme Court's decision in Agostini v. Felton... to a line of antiquated and factually irrelevant cases, resulting in a ruling that altogether fails to consider the merits of Extreme's argument. More specifically, the panel applied decisions rejecting a First Amendment right to purchase or transport obscenity in inherently public channels of commerce to Extreme's Fifth Amendment substantive due process claim. In addition, the panel also failed to recognize the significance of the fact that the purchases here occurred over the Internet, a new medium of communication not envisioned or discussed in the Supreme Court's prior case law. The review of the full Court is therefore necessary to ensure that the significant constitutional questions presented in this appeal are properly addressed and answered without being summarily dismissed at the hand of inapplicable precedent."
Look for a more in-depth analysis of this motion this week on AVN.com.
