An Extreme Decision

J. D. Obenberger
All ten criminal obscenity-related charges against Extreme Associates were dismissed on January 20, 2005, by United States District Judge Gary L. Lancaster on constitutional grounds. In his decision, Judge Lancaster determined that:

1) there are fundamental rights to Liberty and Privacy held by persons who may desire to obtain obscene materials, and that these fundamental rights are burdened by criminal laws that broadly punish the publishers and distributors of obscene materials, fundamental rights recognized by the Supreme Court in Stanley v. Georgia, and

2) because the Liberty and Privacy rights associated with receiving obscene erotic materials for private use are fundamental, the legitimacy of the obscenity statutes in consideration of the burden they impose on the acquisition of obscene materials will be assessed through the application of the "strict scrutiny" test, under which the statute can stand only if there is a compelling government interest that the obscenity statute protects and there is no less burdensome alternative that can advance the compelling interest, and

3) since the Texas sodomy criminal statute was invalidated in Lawrence v. Texas last year, the government's enforcement of a moral code is no longer an independent, legitimate basis for criminal statutes, and

4) the two "government interests" advanced by the US Justice Department to support the obscenity statutes and treated by the court as though put forward as "compelling" - the protection of adults from exposure to obscene materials they do not want to see and the protection of children from exposure to such materials - can be advanced and protected in laws that are far less burdensome on the fundamental rights of Liberty and Privacy - and that, under the facts of this case, only paying subscribers to the site had access to the charged material online and only those who ordered the DVD's from the site would receive them and be exposed to the material, all through means assuring legal age.

Accordingly, reasonable protection against the exposure of unwitting adults and impressionable minors to the material can practically be achieved by laws that are far less obnoxious to Liberty that the obscenity statutes - laws which burden the availability of obscene materials by punishing anyone who distributes the materials to anyone - and was accomplished under the facts of this case, and

5) the distributors and publishers of obscene material had the right to advance the issue of their customer's rights in Liberty and Privacy to receive the materials.

This decision was based on an "as applied" challenge and not a "facial" attack. The court found that the federal obscenity statute was unconstitutional as applied to these defendants under these facts, and not that it could not be applied to other defendants under different facts. However, the facts are similar enough to the standard business practices of COPA-compliant, well-run adult Internet sites and mail order distributors of adult materials that the holding offers much encouragement to them.

This decision binds no other court and it is very, very possible that other judges in other jurisdictions will disagree as the issue comes before them. You can count on the proposition that a motion similar to that granted here will be filed and argued in every obscenity case in which the defendant is represented by capable First Amendment lawyers. Attorney Lou Sirkin of Cincinnati brought this motion, but this was not the first time he advanced the arguments it contained. Motions based on the same principles were brought by him in Louisiana and in other places since Lawrence v Texas was decided, but until now, those motions were denied. This case marks the first time that its principals have been accepted by any trial judge and that is its historical importance.

What does it mean? What happens next? The government will surely move for reconsideration. Reconsideration will probably be denied. Then the government must decide whether to appeal the decision. By doing so, it risks that the Third Circuit, sitting in Philadelphia, will affirm, broadening the precedential (binding) effect of this decision to a much larger part of the East. After resolution by the Third Circuit, either side might then seek review in the US Supreme Court. When before the Supreme Court, the validity of all obscenity statutes as applied to COPA-Compliant adult sites, will be in issue.

Afraid that its obscenity statutes are doomed, the government may try to cut its losses as it did when it declined to appeal the Tenth Circuit decision in Sundance Associates, Inc. v. Reno (1998) invalidating the "secondary producer" provisions of its regulations implementing 18 USC Section 2257. Should it do so, legal determination of the unconstitutionality of the obscenity statutes will be a longer and more torturous road. We cannot expect the obscenity laws to fall like apples from a tree in Autumn. Each victory will be hard-fought and earned.

There are likely to be defeats ahead, as well, but we believe that it is inevitable that the obscenity statutes will fall because they, and the Roth and Miller decisions which justify their existence, fall well outside the American legal tradition in understanding individual Liberty and freedom of expression. This proposition is developed more fully in "Problems of Prurience and Principle" which will be published shortly by XBiz.

The smart webmaster and distributor will ensure that he or she obtains the maximum potential benefit of the principles articulated in Judge Lancanster's opinion by assuring COPA compliance, keeping materials obscene or harmful to minors away from any entry and free tour page, and in refraining from spam containing the same kind of materials.

The decision (45 pages, 1,156kb, Acrobat .pdf format) can be read and downloaded here.

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