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Obscenity Charges Dismissed! - Alan, Esq.

Alan, Esq.
Date: 2005-01-23 01:22
Subject: Obscenity Charges Dismissed!
Security: Public
Extreme Associates is a company which makes pornography of an "extreme" nature. Their videos depict scenes of defecation, urination, simulated rape, and simulated murder/snuff. Not very tame or pretty stuff. I've never seen one of their videos, nor do I intend to. In 2003, the Government brought charges against Extreme Associates, and their owners/operators on 9 counts of violating Federal obscenity statutes and 1 count of conspiracy based on that conduct. On Thursday, January 20, 2005, Western District of Pennsylvania Federal Judge, Gary L. Lancaster dismissed all charges against Extreme and the individuals. The decision found the obscenity laws unconstitutional as it applied to this case, which means the laws are still technically valid on their face. However, if you read the decision, the Judge essentially destroys the government's ability to prosecute obscenity at all. You can read about the case here.

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.
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Reality Hammer
User: reality_hammer
Date: 2005-01-23 07:48 (UTC)
Subject: (no subject)
I don't see a problem. Essentially he's saying that as long as it is viewed in private the government should not intefere with it, and that means they can't stop it en route to your home.

But, show it in a theater? Depends on the local community standards.
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Die Königin
User: diekonigin
Date: 2005-01-23 15:16 (UTC)
Subject: (no subject)
The logic that Lawrence v. Texas applies because the govt shall not involve itself in the private, consensual sexual activities of adults and that it's not a state interest seems to be a big loophole. Porn, graphic depictions of said acts, etc that are made publically available (print, distributable video formats, or over the web) are now being lumped into that category? Wow....seems ludicrous enough to me to be challenged and overthrown.
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User: mister_grey
Date: 2005-01-24 11:04 (UTC)
Subject: (no subject)
I don't think this ruling will have a very large impact on Nitke v. Ashcroft. The method of delivery is totally different, thereby allowing for more people to accidentally stumble across it on the net.

As for the illusion of protection under the 14th amendment, this was merely Judge Lancaster's interpretation of the law. That does not make it into a law. I would tread careful in the wake of Nipplegate.
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