The Court summarized its findings, stating:
We find that 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. As such, we have applied the strict scrutiny test to those statutes. The federal obscenity statutes fail the strict scrutiny test because they are not narrowly drawn to advance the asserted governmental interests of protecting minors and unwitting adults from exposure to obscene materials, as applied to these defendants and the facts of this case. Because the federal obscenity statutes are unconstitutional as applied, defendants' indictment must be dismissed.In addition, the court also flatly rejected the right of the government to enforce laws to further the interest of "morality", since the U.S. Supreme Court overturned all laws which ban private consensual sodomy between adults in Lawrence v. Texas, 539 U.S. 558 (2003). Here the court said:
The Lawrence decision, however, is nevertheless important to this case. It 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 even if that conduct is deemed offensive to the general public's sense of morality. Such is the import of Lawrence to our decision.This decision is a huge victory for individual liberty and freedom of speech.
However, I see a huge logic gap in the Judge's decision which may make it ripe for reversal on appeal.
The decision to dismiss the charges was not based on the 1st Amendment. In fact, the court conceded that the 1st Amendment does not protect obscenity. See Roth v. United States, 354 U.S. 476 (1957). However, the Supreme Court has also ruled that the mere possession of obscenity in your home could not be prosecuted. See Stanley v. Georgia, 394 U.S. 557 (1969). Nonetheless, the government could (and did) freely prosecute anyone who distributes obscenity.
Here's what the judge did which appears somewhat curious. Judge Lancaster held that the 14th Amendment prohibits the government from prosecuting distributors of obscenity. Hence, it violates the Due Process clause of the Constitution to prosecute someone for distributing material which can be legally possessed.
This means that even though obscenity is not protected by the 1st Amendment, the 14th Amendment protects an individual's right to possess and distribute obscenity. In other words, the government can make a law banning a form of speech (i.e. obscenity). However, they can't make it illegal to own it or distribute it. Under that logic, the entire concept of obscenity has become abrogated and essentially null and void. It's like giving the government a power, but not letting them actually use it.
The government can choose to appeal this decision, and may have some grounds, as I've articulated. Note: I applaud any decisions which protect freedom of speech, as this one does. However, I don't want to see good results overturned. Although there are risks for the government if they appeal. Since this is a trial level decision, it has no precedential effect on other jurisdictions. This means, that other courts can choose to ignore this decision entirely. If the government chooses to appeal and they lose in the Circuit Court or Supreme Court, then that decision would be binding on other courts.
This decision may have a huge impact on the pending case of Nitke v. Ashcroft where the National Coalition for Sexual Freedom (NCSF) is fighting to overturn the Communications Decency Act, which is a law banning obscenity on the internet. The lead attorney on the suit is
jwirenius I encourage anyone who is interested in either sexual freedom or freedom of speech to check out the NCSF website and find out more.Update: You can read the whole decision here.
Hat tip to
center.