PITTSBURGH – Federal prosecutors trying to salvage one of the government’s biggest obscenity cases this decade asked an appeals court Wednesday to reinstate obscenity charges against a couple who sold pornographic videos depicting simulated rape and murder.
U.S. Attorney Mary Beth Buchanan acknowledged individuals have the right to possess obscene materials at home, but told a three-judge panel of the 3rd U.S. Circuit Court of Appeals that there is no right to receive or distribute obscenity.
A lower court judge erred in ruling that a right to distribute obscene materials flowed from the privacy right, Buchanan said.
Robert Zicari and Janet Romano, both of Northridge, Calif., and their company, Extreme Associates Inc., were charged in 2003 with distributing three videos through the mail and six images over the Internet to western Pennsylvania. They were also charged with conspiracy.
A grand jury found the company’s video and Internet images violated the U.S. Supreme Court’s test for obscenity. Pornographers must adhere to the community standards of where products are made and anywhere they might be seen, prosecutors said.
In January, U.S. District Court Judge Gary L. Lancaster threw out the 10-count indictment, ruling obscenity statutes unconstitutional in the case. Prosecutors overstepped their bounds in trying to block the material from children and from adults who didn’t want to see such material inadvertently, he ruled.
The Justice Department appealed. Buchanan said Wednesday it was well-settled by previous U.S. Supreme Court rulings over the past several decades that a right to possess obscenity did not mean there was a right to distribute it.Click here!
“There is nothing new in this case,” she said.
In reaching his decision, Buchanan said Lancaster erred in relying in part on the Supreme Court’s June 2003 ruling that struck down Texas’ ban on gay sex, Buchanan said. The court called the ban an unconstitutional violation of privacy.
H. Louis Sirkin, attorney for the couple and their company, said Lancaster was right in his reasoning.
“In order for me to exercise my right to liberty, I have to get it,” Sirkin said.
Sirkin said the Internet has changed the notions of privacy and commerce. The agents who ordered Extreme Associates’ products did so through a members-only section of the company’s Internet site in a private setting, he said.
Such features prevent minors and unwilling viewers from seeing obscene images, he said.
Buchanan has said the case is not about banning all sexually explicit materials, just reining in obscenity.
The Bush administration has stepped up obscenity prosecutions, indicting dozens of people since 2001, far more than the Clinton administration pursued.
When she announced the indictment in August 2003, Buchanan said the lack of enforcement of obscenity laws during the mid- to late-1990s “led to a proliferation of obscenity throughout the United States.”
Sirkin said his clients are still in business.
If reinstated, the charges carry a maximum penalty of 50 years in prison and a $2.5 million fine for Zicari and Romano, and probation and a $5 million fine for the company.
The appeals court panel did not indicate when it would rule.