Greenguy's Board - Judge Rules Fed. Obscenity Statutes Unconstitutional

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Reproduced in its entirety from an email newsletter:

Judge rules that federal obscenity statutes are unconstitutional "as applied to defendants."

On Thursday, January 20, 2005, US District Court Judge Gary L. Lancaster dismissed a major federal prosecution against Extreme Associates, Inc., and its owners, Robert Zicari and Janet Romano. The defendants were charged under federal law with 9 counts of obscenity and one count of conspiracy for distributing various video clips across the Internet and for shipping three videos to US postal inspectors in Pittsburgh, Pennsylvania.

The prosecution against Extreme Associates was the Justice Department's high-profile opening salvo against the online adult industry. Zicari and Romano (who are better known in the adult industry as Rob Black and Lizzy Borden) produce and distribute extremely hard-core videos. Despite the fact that Extreme Associates operates out of Chatsworth, California, the Justice Department elected to prosecute the defendants in western Pennsylvania, one of the country's more conservative regions. (Although Alleghany County, where Pittsburgh is located, went for John Kerry, many of the other counties in the district favored the President by more than 30 percentage points). Nor was there any question about the content of the videos themselves: For the purposes of their motion to dismiss, the defendants conceded that both the video clips on their Web site and the full-length videos shipped to Pittsburgh are in fact obscene.

Judge Lancaster, who was appointed as a US Magistrate by President George H.W. Bush in 1987 and appointed to the US District Court by President Clinton in 1993, did not base his ruling on the First Amendment, the traditional basis for analyzing obscenity issues. Instead, he ruled that "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." Applying the so-called "strict scrutiny" test to the federal obscenity laws, Judge Lancaster concluded that the government's justifications for the laws were not sufficient and violated defendants' right to substantive due process.

"The government offered two rationales for federal obscenity laws: protection of unwitting adults and minors from exposure to obscene materials," said Frederick Lane, author of "Obscene Profits," a book about the online adult industry. "With respect to adults, the Court specifically found that the government does not have a compelling interest in preventing 'individuals from entertaining lewd or lustful thoughts.'"

"And even if the government does have a compelling interest in protecting minors from exposure," Lane added, "the Court found that there are better ways to prevent possible exposure than a blanket ban on obscenity. For instance, there are filtering programs, the requirement of a credit card to access materials (a system used by the defendants on their Web site), and of course, parental supervision."

Much of Judge Lancaster's decision was based on the recent United States Supreme Court decision in Lawrence v. Texas, in which the Supreme Court declared that Texas's homosexual sodomy law was an unconstitutional violation of substantive due process. "After Lawrence," Judge Lancaster wrote, upholding the public sense of morality is not even a legitimate state interest that can justify infringing one's liberty interest to engage in consensual sexual conduct in private."

The District Court's decision effectively ends the prosecution against the defendants, although the government can appeal the ruling to the Third Circuit Court of Appeals. Mary Beth Buchanan, the U.S. Attorney for the Western District of Pennsylvania, issued a statement saying that the Justice Department is reviewing the decision and weighing its options.

"Although the Court's analysis is limited to the circumstances of this particular case," Lane said, "it is a well-reasoned opinion and one that raises serious questions about the ability of the federal government to enforce obscenity laws against adult Web sites on the Internet. Although I'm sure the government would like to appeal, they're also going to weigh whether the risk of a similar appellate or US Supreme Court decision outweighs simply dropping this prosecution."

Copies of the Court's decision and the U.S. Attorney's press release are available on SexBizLaw.com, Lane's news and information site about obscenity and pornography issues in the United States.

About Frederick Lane III

Frederick Lane III is an author, expert witness, and lecturer, focusing on the impact of technology on society. In 2000, Mr. Lane published "Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age" (Routledge 2000), the first look at the growth of the online adult industry. His second book, "The Naked Employee: How Technology Is Compromising Workplace Privacy" (Amacom 2003) is an examination of the surveillance tools used in the workplace and a call for an employee's Bill of Rights. Mr. Lane is currently working on his third book, entitled "The Decency Wars: The Campaign to Cleanse American Culture" (Prometheus 2005). In addition to his writing, he has provided expert testimony and computer forensic consulting in a number of civil and criminal cases. Additional information is available on his professional website, www.fredericklane.com.

For further information, or to arrange an interview, please contact Mr. Lane at 802-355-0158 or FSL3@yahoo.com

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Frederick Lane is an expert witness, lecturer, and author of "Obscene Profits" (Routledge 2000) and "The Naked Employee" (Amacom 2003). He is currently working on his third book, "The Decency Wars: The Campaign to Cleanse American Culture." For additional information, please visit www.FrederickLane.com.