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3rd Circuit Reinstates Federal Obscenity Laws

Pittsburgh- A federal judge in Pittsburgh was wrong to strike down federal obscenity laws as unconstitutional, the 3rd U.S. Circuit Court of Appeals has ruled, because he improperly reasoned that a recent gay rights decision from the U.S. Supreme Court now shows that the laws violate fundamental rights to privacy.

Instead, the 3rd Circuit said, the lower court should have looked first to a long line of Supreme Court decisions that have upheld the obscenity statutes and left it up to the justices themselves to decide if their recent decisions in the area of individual privacy rights in the bedroom now undermine those rulings.

The ruling in United States v. Extreme Associates Inc. overturns a January 2005 decision by U.S. District Judge Gary L. Lancaster of the Western District of Pennsylvania that dismissed a 10-count criminal indictment that charged a California video distributor, Extreme Associates, and the husband-and-wife team that owns it, with violating federal obscenity laws.

Lancaster concluded that, in light of the Supreme Court’s 2003 decision in Lawrence v. Texas, which struck down that state’s sodomy law, the federal obscenity statutes can no longer survive a “strict scrutiny” test.

“After Lawrence,” Lancaster wrote, “the government can no longer rely on the advancement of a moral code, i.e. preventing consenting adults from entertaining lewd or lascivious thoughts, as a legitimate, let alone compelling, state interest.”

Lancaster concluded that the laws “are not narrowly drawn to advance the government’s two asserted interests — protecting minors from exposure to obscene materials; and protecting unwitting adults from inadvertent exposure to obscene materials.”

As a result, Lancaster concluded that the federal obscenity laws “violate the constitutional guarantees of personal liberty and privacy of consenting adults who wish to view defendants’ films in private.”

Now a unanimous three-judge panel has ruled that Lancaster’s reasoning was flawed and ordered that the indictment be reinstated.

“We are satisfied that the Supreme Court has decided that the federal statutes regulating the distribution of obscenity do not violate any constitutional right to privacy,” U.S. Circuit Judge D. Brooks Smith wrote.

“For district and appellate courts in our judicial system, such a determination dictates the result in analogous cases unless and until the Supreme Court expressly overrules the substance of its decision. Lawrence v. Texas represents no such definitive step by the [Supreme] Court,” Smith wrote in an opinion joined by Senior Circuit Judges Walter K. Stapleton and Richard L. Nygaard.

As a result, Smith said, it was impermissible for Lancaster to strike down the obscenity statutes based on “speculation” that several Supreme Court decisions relating to obscenity “appear to rest on reasons rejected in [Lawrence].”

According to the 10-count obscenity indictment against of Northridge, Calif.-based Extreme Associates and its owners, Robert Zicari and his wife, Janet Romano, the company distributed graphic videos depicting rape and murder.

Defense attorneys H. Louis Sirkin and Jennifer M. Kinsley of Sirkin Penales & Schwartz in Cincinnati moved for dismissal of the indictment, arguing that their clients had “derivative standing” to challenge the federal statutes on behalf of their customers.

Lancaster agreed that distributors of obscene materials have the right to challenge the laws on behalf of their customers.

Turning to the merits of the challenge, Lancaster found that the Supreme Court’s 1969 decision in Stanley v. Georgia recognized the First Amendment right of an individual to possess, read, observe and receive obscene materials in the privacy of that individual’s home and that such a right is “fundamental” under the Constitution.

Lancaster found that, because the Stanley court also spoke of a privacy right having to do with Stanley’s home, the case “represents a unique intersection between the substantive due process clause’s protection of personal liberty and privacy and the First Amendment’s protection of an individual’s right to receive, and consider, information and ideas.”

But prosecutors argued that, in a string of decisions handed down after Stanley, the justices had refused to strike down the federal statutes regulating the distribution of obscenity, or to recognize, as a corollary to the right recognized in Stanley, a First Amendment right to distribute obscene material.

But defense lawyers argued that those cases were decided solely on First Amendment grounds rather than on privacy grounds under the Substantive Due Process Clause.

Lancaster agreed and found that the Supreme Court’s rulings upholding the obscenity statutes were factually distinguishable because they dealt either with the importation of obscene material from abroad or involved methods of distribution that were more “public” than the Internet transmissions at issue in the indictment of Extreme Associates.

As a result, Lancaster concluded that Extreme Associates’ facial challenge to the obscenity law was not precluded by the line of cases that upheld them since “neither the Supreme Court nor the 3rd Circuit has considered a substantive due process challenge to the federal obscenity statutes by a vendor arguing that the laws place an unconstitutional burden … on an individual’s fundamental right to possess and view what he pleases in his own home.”

Instead, Lancaster found that the challenge was controlled by the Supreme Court’s leading cases in the area of privacy — the 1965 decision in Griswold v. Connecticut that upheld the right of married couples to obtain contraceptives and the 1973 decision in Roe v. Wade, which upheld a woman’s right to seek an abortion.

Lancaster then concluded that the obscenity laws could not survive a strict scrutiny challenge because the government could not show that the laws were narrowly drawn to advance any compelling government interest.

The Supreme Court’s most recent decision in the area of privacy rights, Lawrence, seriously undermined the validity of the obscenity laws, Lancaster found, because “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.”

And due to the nature of the Internet — and the protective technologies employed by Extreme Associates — Lancaster found that the government’s asserted interests of protecting children and unwitting adults from exposure to obscenity could be accomplished by less restrictive means than a total ban on distribution.

On appeal, prosecutors argued that the federal obscenity statutes “have withstood constitutional attack for more than 35 years,” and that Lancaster therefore “lacks the authority to find that they are unconstitutional.”

The 3rd Circuit agreed and found that Lancaster erred in ignoring numerous Supreme Court decisions that upheld the obscenity statutes in favor of relying on privacy-rights cases that, according to Lancaster, have now undermined those prior decisions.

“We conclude that directly applicable Supreme Court precedent, upholding the constitutionality of the federal statutes regulating the distribution of obscenity under First Amendment and substantive due process privacy rights, governs this case,” Smith wrote.

“The district court was bound by that authority, as are we, to uphold those statutes as applied to Extreme Associates on behalf of its customers. As such, the district court erred in striking down the statutes and dismissing the indictment,” Smith wrote.

Smith found that a pair of Supreme Court decisions have explicitly cautioned lower courts not to engage in the analysis Lancaster employed.

In its 1989 decision in Rodriguez de Quijas v. Shearson/American Express Inc., the justices admonished lower courts that “if a precedent of this court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the court of appeals should follow the case which directly controls, leaving to this court the prerogative of overruling its own decisions.”

In 1997, Smith noted, the justices reiterated and expanded on that rule in Agostini v. Felton, which said: “We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent.”

In light of those explicit instructions, Smith said, Lancaster never should have considered the argument that Lawrence had undermined the line of Supreme Court cases that upheld the obscenity statutes.

“The possibility that Lawrence has ‘somehow weakened the precedential value of’ the [obscenity] line of cases is irrelevant for purposes of ruling on the instant indictment,” Smith wrote.


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