While the ruling is currently being considered a blow to the Justice Department’s two-year pursuit of Extreme, it could also set a dangerous precedent if it is appealed and reversed by the 3rd U.S. Circuit Court of Appeals.
U.S. District Judge Gary L. Lancaster in Pittsburgh found federal obscenity laws unconstitutional as applied to the case of Black, aka Robert Zicari, of Chatsworth, Calif.
The case against Black, owner of gonzo-themed ExtremeAssociates.com, was the first federal obscenity prosecution against a video manufacturer in a decade. If convicted, Black and Romano faced up to 50 years in prison and a fine of $2.5 million.
The government’s case zeroed-in on the video ''Forced Entry,'' which stars and is directed by Black's wife, Romano, under the name Lizzie Borden. The company bills the film as a ''stunningly disturbing look at a serial killer, Satanic rituals, and the depths of human depravity.''
In a release shortly after the ruling, U.S. Attorney Mary Beth Buchanan in Johnstown, Pa., said that her office is “reviewing the ruling and examining our options, which could include an appeal to the [3rd Circuit].”
A spokeswoman for Buchanan on Monday would not elaborate on the Justice Department’s next step, but First Amendment attorney J. D. Obenberger expounded on possible legal scenarios.
“The government will surely move for reconsideration. Reconsideration will probably be denied,” Obenberger said. “Then the government must decide whether to appeal the decision.
“By doing so, it risks that the 3rd Circuit, sitting in Philadelphia, will affirm, broading the precedential [binding] effect of this decision to a much larger part of the East.
“After resolution by the 3rd Circuit, either side might then seek review in the U.S. Supreme Court. When before the Supreme Court, the validity of all obscenity statutes as applied to COPA-compliant adult sites, will be in issue.”
With the Justice Department’s initial blow in United States vs. Extreme Associates Inc., No. 03-0203, Obenberger said that obscenity indictments will continue, despite Friday’s ruling.
“We cannot expect the obscenity laws to fall like apples from a tree in Autumn,” he said. “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.”
In related news, ABC's "Nightline" will conduct an interview with Black and discuss the case against Extreme Associates. Monday's program begins at 11:30 p.m.