Obscenity Battles Continue

"It's a new day out there, and they ought not be pursuing this type of material when it goes to consenting adults." So spoke my friend and colleague Louis Sirkin, Rob Zicari's defense attorney, in an interview on ABC's "Nightline" in the wake of his stunning victory in United States vs. Extreme Associates, No. 03-0203.

On Jan. 20, the day of President Bush's second inauguration, U.S. District Court Judge Gary L. Lancaster dismissed the obscenity and conspiracy case brought by the government against Extreme Associates Inc. and its owners Robert Zicari, aka Rob Black, and Janet Romano. The case had been promoted by the Department of Justice as the first of many obscenity prosecutions that would soon be filed. It also was the first federal obscenity prosecution of a video producer in more than a decade, and the first to include counts aimed at both videotape and Internet distribution of explicit content. The indictment alleged the mailing of three obscene videotapes and the distribution of six obscene video clips via the Internet. One of the video clips was only 16 seconds in length. Two others were less than a minute long. All six were under three minutes. The prosecution subjected Zicari and Romano to potential sentences of up to 50 years and fines of $2.5 million.

Accompanying his dismissal of the case, Lancaster issued a well-reasoned opinion that held "the obscenity statutes are unconstitutional as applied to these defendants." The opinion left Zacari "speechless." Moreover, I think it is fair to say that the court's opinion also surprised the prosecution, the defense and the rest of the First Amendment bar. There is no doubt that the ruling is a serious setback for the government in its premier obscenity case and a bitter going-away present for former Attorney General John Ashcroft who had vowed to vigorously prosecute obscenity. It is also a clear victory for the adult entertainment industry and the First Amendment in the culture war being waged by the religious right against both. The dismissal of the Extreme Associates case is good news for the industry. Better still are the legal grounds upon which the judge based his decision. The court's opinion clearly states that the government has no right to intrude upon the privacy interests of consenting adults to view materials that only contain other consenting adults engaged in lawful activities by prosecuting the distributors of such materials. This is an old argument that has been generally unsuccessfully advanced for decades by many First Amendment attorneys including Paul Cambria, my partner Robert Sarno and others.

What has changed is Lancaster's application of a recent Supreme Court ruling in the case of Lawrence vs. Texas, 539 U.S. 558 (2003) to the Extreme Associates case, as advocated by Louis Sirkin. In Lawrence, the Supreme Court struck down a Texas anti-sodomy statute on the ground that the law violated the privacy rights of individuals to engage in consenting sexual activities in their homes. If the reasoning adopted by Lancaster becomes the law of the land (which it currently is not), it could substantially contract the scope of obscenity prosecutions against distributors of lawful erotic content delivered directly to consumers' homes via mail order or the Internet.

That would be great news, indeed. But for the present, it is important to understand that Lancaster's ruling does not change the law. In fact, it has no controlling effect outside the Extreme Associates case. The decision cannot, in and of itself, prevent government obscenity prosecutions. Moreover, the ruling may be reversed by the 3rd U.S. Circuit Court of Appeals or, eventually, by the U.S. Supreme Court, if such appeals are made. It is even possible (although unlikely) that the government could charge Zicari and Romano with distribution of obscenity and conspiracy in another federal district, regarding the same materials. So the case is far from over.

But because every adult entertainment webmaster will be affected by the ultimate outcome of this case, understanding the court's reasoning, the limits of its ruling and the rationale underlying it, is, in my opinion, well worth every adult webmaster's time and effort. Unfortunately, erroneous interpretations of the ruling and its effect on the law are already proliferating on the boards. Therefore you should consult with a competent and experienced adult entertainment attorney to advise you regarding this and any other changes or potential changes in the law that might affect you or your business. To assist you and your counsel in that endeavor, the following is a brief overview of the court's reasoning and some of my analytical observations in light of the judge's opinion.

The Court's Reasoning
Lancaster held that the obscenity statutes "place a burden on the exercise of the fundamental rights of liberty, privacy and speech," which had been established by the Supreme Court long ago in the case of Stanley vs. Georgia, 394 U.S. 557 (1969). Laws that burden the exercise of a citizen's fundamental rights are accorded a special kind of examination by courts that is called "strict scrutiny." What this means, quoting Lancaster, is that for such a statute to survive the judicial ax, "the state must identify a compelling state interest that is advanced by a regulation that is narrowly drawn to serve that interest in the least restrictive way possible."

Lancaster determined that in the context of the Extreme Associates case, which involved Internet and mail order distribution of erotic materials directly to private homes, the "federal obscenity statutes burden an individual's fundamental right to possess, read, observe and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials." Accordingly, the court determined that the obscenity laws should be strictly scrutinized in the Extreme Associates case. Lancaster then ruled that the obscenity statutes failed the strict scrutiny test for several reasons.

First, he held that the government's argument that "prohibiting obscenity in the community" can no longer be viewed as a legitimate governmental interest, much less a compelling interest, after the Supreme Court's 2003 ruling in Lawrence. In that case, the Supreme Court held that "a person's decisions about what personal relationships, including homosexual relationships, he will have in his own home are not to be controlled or criminalized by the government because the government finds such relationships to be immoral." Lancaster applied the Supreme Court's ruling to the Extreme Associates case stating that "[Lawrence] can be reasonably interpreted as holding that public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct if that conduct is deemed offensive to the general public's sense of morality. Such is the import of Lawrence to our decision."

The judge further supported his interpretation of Lawrence by recalling Supreme Court Justice Antonin Scalia's dissent in Lawrence in which "Justice Scalia opined that the holding in Lawrence calls into question the constitutionality of the nation's obscenity laws ...."

Finding Heart of Case
Next, the judge virtually twisted the knife in the heart of the government's case by finding that the government does not have any legitimate interests, much less compelling interests, at stake in applying the obscenity laws to the facts of Extreme Associates. He conclusively rejected both of the governmental interests advanced by the prosecution: 1) the protection of unwitting adults from exposure to obscene materials; and 2) the protection of children from exposure to obscene materials. The judge's rejection was based in part on the ground that the obscenity laws as applied to the defendants' methods of content distribution would not be the narrowest means of furthering those interests. In fact, the judge opined that the defendants' distribution methods already prevented the exposure of the content to unwitting adults or minors.

Specifically, the judge observed that the defendants only provided access to the subject video clips after payment by a credit card (i.e., behind what the industry calls a credit card "firewall"). Further, the judge observed that the videotapes at issue also could not be obtained without credit card payment. Consequently, it would be unlikely that any unwitting adults would be exposed to the charged material since such exposure requires a payment.

Similarly, the court dispensed with the government's argument that application of the obscenity laws in this case was an appropriate means of protecting minors from obscene content. First, Lancaster cited several cases supporting the "general rule that Supreme Court has not allowed the fact that a determined minor might access inappropriate materials to justify a complete ban on their distribution, thus reducing the adult population to only what is fit for children."

Next, he cited the safe harbor defenses available under the federal "dial-a-porn" law, 50 Fed. Reg. 42,699-01 (Oct. 22, 1985), and observed that "prepayment with credit cards is another effective way to restrict access to inappropriate materials by minors." Thus, the judge concluded that "on the facts of this case, defendants themselves have restricted access to the charged materials by minors by requiring that credit card information be entered before viewing the video clips, or ordering the video tapes."

The court's reasoned dismissal of the government's case against Extreme Associates is simply great news. But there is a great danger that the opinion will be misinterpreted as a wholesale invalidation of the obscenity laws. It is not. Remember, the court's ruling only applies to the Extreme Associates defendants. Moreover, the court's pronouncement that the obscenity laws are unconstitutional only applies to the application of the obscenity laws to the facts underlying the present case. For example, facts that include a credit card firewall preceding Internet access to content which allowed the judge to conclude that interest of protecting minors and unwitting adults can be accomplished by means that are less drastic than application of the obscenity laws.

This leaves whole categories of conduct common in the online adult entertainment industry unaddressed by the reasoning of the court in Extreme Associates. These activities would still pose a danger of obscenity prosecution, even if the court's ruling were to become the law of the land.

For example, websites that provide free hardcore video clips in front of a credit card firewall will be outside the Extreme Associates fact pattern, and a court might find that such circumstances allow the application of the obscenity laws to protect minors and unwitting adults.

Similarly, distribution of hard core content via mobile phones may not be deemed to be a distribution into the privacy of a consumer's home because of the frequent public usage of cell phones. A court might find that there is a compelling governmental interest in protecting children from exposure to explicit hardcore erotic materials that might be seen on mobile telephone screens in public.

Additionally, it is unlikely that Lancaster's reasoning would apply to obscenity prosecutions against persons who have mailed materials containing sexually oriented advertising to private homes that are listed in the U.S. Postal Service's "prohibited mailing list" pursuant to 39 USC 3010.

Finally, of course, the case says nothing about prosecutions under 18 U.S.C. Sec. 2257. In fact, as I indicated in my November column, the more difficult or risky obscenity prosecutions are for the government, the more the government is likely to use prosecutions under 18 USC 2257 as its main weapon against the industry. I believe that the dismissal of the Extreme Associates case, and the sound reasoning of Lancaster's opinion, makes that strategy ever more likely.

What's Next?
The government is entitled to appeal the court's ruling to the 3rd Circuit. But this is not without risk to the government. If the government appeals and wins, the defendants will almost certainly seek an appeal before the U.S. Supreme Court, the court that issued the Lawrence opinion. But if the government appeals and the 3rd Circuit affirms the opinion of Lancaster, the ruling would become law throughout the 3rd Circuit, which encompasses three states. The government could then seek an appeal before the Supreme Court. But if the government loses there, Extreme Associates would become the law of the land.

Even though we do not know at the present time whether the government will appeal Lancaster's ruling, we can expect that the religious right will now fight like hell. I expect them to liken the good judge's opinion to an attack on family values. For example, one of the adult entertainment industry's arch enemies, Patrick Truman, former chief of the Department of Justice's Child Exploitation and Obscenity Section and current senior attorney at the Family Research Council, has characterized the decision not as a victory for freedom but as an inappropriate action by an "activist judge." Truman predicts that the dismissal will be reversed. Moreover, recently on "Nightline," he chillingly opined that the Bush administration "needs to go after obscenity as a whole" and prosecute a variety of materials including more mainstream materials and not just focus on "extreme" content like the material at issue in Extreme Associates.

Of greater concern is the fact that Attorney General Alberto Gonzales told the Senate Judiciary Committee that he intends "to make the investigation and prosecution of obscenity one of my highest criminal enforcement priorities."

The bottom line is that the obscenity dragon is not yet dead. Until that beast of a law that seeks to incarcerate and impoverish publishers of lawful erotic materials is finally slain, the battles must continue. And there will be many battles to come. But for now, at least, we should all give thanks to the brilliant work of Sir Sirkin. In his skilled hands, the Constitution has once again proven to be a terrible swift sword exquisitely designed to smite the enemies of freedom.

Gregory A. Piccionelli, Esq,. is a senior member of Piccionelli & Sarno, one of the world's most experienced Internet and adult entertainment law firms. He can be reached at (310) 553-3375 or


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