A Federal Judge Dismisses an Obscenity Prosecution on Privacy Grounds:
A Decision That, If Followed, Could Transform the Law

By JULIE HILDEN
julhil@aol.com
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Monday, Jan. 31, 2005

On January 20, U.S. District Judge Gary Lancaster - of the U.S. District Court for the Western District of Pennsylvania, in Pittsburgh - issued what I believe may be a very important right to privacy decision.

Indeed, Judge Lancaster's ruling might - if other courts accept its logic - profoundly affect the future of obscenity law in the United States. If so, it will make speech in this country more free, and privacy more sacrosanct.

Judge Lancaster's opinion is remarkable in that it shows a federal trial judge's willingness to admit what the U.S. Supreme Court will not: The emperor - here, the law of obscenity - has no clothes.

Put bluntly, the law of obscenity, no matter how longstanding, has never satisfied constitutional requirements, and it never will. Finally, a judge has been brave enough to say as much. This opinion is notable for that reason - and for Judge Lancaster's novel approach. His opinion attacks the obscenity laws on privacy grounds - and thus may be more effective than pure free-speech attacks mounted in the past.

The Defendants, Their Website, and the Federal Criminal Statutes Involved

To begin, it's worth noting the context, and background of the case. The defendants in the case before Judge Lancaster were Extreme Associates, Inc., Robert Zicari, and Janet Romano. Zicari (a.k.a. Rob Black) and Romano (a.k.a. Lizzy Borden) sell pornographic films through the mail, and through the "members only" section of the Extreme Associates website.

The prosecution was brought under three federal obscenity statutes - one statute that prohibits mailing matter that is "obscene, lewd, lascivious, indecent, filthy or vile"; another statute that prohibits using the Internet to traffic in such material; and a third statute that prohibits conveying such material in interstate commerce.

The indictment purported to state ten law violations, including a conspiracy charge. Each carried with it a potential prison sentence of up to five years, and a fine.

Interestingly, each alleged violation also came out of a "sting" operation in which a postal inspector, acting undercover, became a member of the defendants' website, and ordered the defendants' films. Thus, rather than acting on any aggrieved person's complaint of having been offended, the government seems to have been acting simply on its own, targeting the films its own prosecutors happened to find especially offensive.

This kind of law enforcement is arbitrary and idiosyncratic at best, and at worst, selective prosecution, in which the government chooses especially-disliked persons and companies to target - doing so based on the content of their speech. Enforcement that turns on such individualized judgment makes a mockery of the very concept of law. And when the cherry-picking is done based on the content of speech (here, the content of the films at issue), it is especially noxious. Corollary to the concept that speech must be free, is the concept that speech cannot be punished based on its content.

The Traditional, Unsuccessful Attack on Obscenity Laws

Selective enforcement and content-discrimination, however, may be among the least of obscenity law's problems. Lawyers have long tried to attack obscenity law as a simple, straightforward First Amendment violation: These laws directly target speech, when the First Amendment plainly says that to do so, is forbidden. (The Court has long held that films and photos count as "speech" as fully as newspaper reports do.)

Yet the courts have always rebuffed these attacks - carving out obscenity as an area of law that, anomalously, is thought to be somehow outside the First Amendment's scope. Now, however, Judge Lancaster has accepted new arguments, grounded in the right of privacy, that other courts may find more persuasive than those that have typically been raised. Before looking at those new arguments, though, it's worth focusing briefly on the traditional, failed attacks.

Why didn't simple First Amendment attacks on obscenity laws ever persuade the Supreme Court? Perhaps the Court was simply uncomfortable with putting speech with sexual content in the same category as the political speech on which our democratic system is based - viewing these kinds of speech as such strange bedfellows, it felt it had to put them in separate areas of law.

The Supreme Court should have resisted its discomfort, and yielded to logic. For example, "I know it when I see it" is obviously an insufficiently clear standard for a law, especially a criminal law. Yet this was Justice Potter Stewart's not-very-reassuring reassurance as to how he figured out what was, and was not, obscenity. (The comment occurred in Stewart's concurring opinion in the 1964 case of Jacobellis v. Ohio - in which the Court reversed a state Supreme court's judgment that a particular film was obscene.)

Less famously, and even less reassuringly, the Justice also mused, in the same dissenting opinion, that he might never be able to "intelligibly" figure out what he meant by the kind of "hard-core pornography" he deemed to fall within obscenity law. When a Supreme Court Justice is confessing that he doesn't know what the law means, and probably never will, how is a layperson supposed to figure it out?

The truth is that - Supreme Court decisions to the contrary -- obscene speech, simply because it is speech, plainly is within the First Amendment's protections. A quick look at the wording of the First Amendment ought to establish that.

Yet this argument has been repeated so many times, with so little success, that lawyers have virtually given up on making it.

Fortunately, however, the lawyers for the defendants in the Extreme Associates case took a different tack: They categorized pornographic speech - indeed, even obscene speech - not just as speech, but also as part of readers' and viewers' sexual liberty and sexual privacy. And Judge Lancaster wisely accepted, and eloquently elucidated, these arguments.

Putting the First Amendment Issue Aside: Agreeing that the Obscenity Law Applies

Before analyzing Judge Lancaster's holding, it's useful to see what he did not hold: He did not hold that these materials were non-obscene. To the contrary, he assumed that they were.

The assumption was quite reasonable: Most would agree that the material Extreme Associates sells is repellent; it depicts women being defecated on, and also depicts them - fictionally - being gang-raped, and having their throats slit. But these are not "snuff films" or "rape films": The women's participation is consensual. If it were not, the crimes could, of course, be constitutionally prosecuted, and the films themselves constitutionally confiscated.

Indeed, for the purposes of this dispute, even the defendants agreed that this material is obscene under the currently-applicable test for obscenity -- set forth by the Supreme Court in Miller v. California. For the Miller test to be satisfied, and speech to be constitutionally proscribed as obscene, the Court held, the material at issue must depict or describe sexual conduct in a patently offensive way (as defined by the community); the conduct must be specifically described in the law; and the work must, taken as a whole, lack serious literary or artistic value and must appeal to a prurient interest in sex. The films at issue here seem to pass the test - and thus, would be deemed, by most, to be obscene under its definitions.

For all these reasons, Miller was not an issue here. So Judge Lancaster's ruling concentrated on two other precedents: Lawrence v. Texas and Stanley v. Georgia

Applying Lawrence: Judge Lancaster Defines Liberty to Including Viewing Sexual Films

In Lawrence, the court struck down a law criminalizing same-sex sodomy. In so doing, it held that the constitution's definition of liberty includes the right of adults to conduct consensual personal relationships "in the confines of their homes and their own private lives." And it underlined that that is true even when those relationships' "overt expression" is through "intimate conduct." In short, liberty includes the liberty to have sexual relations.

From this, Judge Lancaster concluded that this liberty also includes the liberty to view sexual material in the privacy of one's home. In support of this argument, the judge pointed to the Supreme Court's holding in Stanley v. Georgia.

In Stanley, the Court had held that a state cannot criminalize the mere possession of sexual material in one's home even if it is obscene. The reason? Because, the Court said, there is a "right to receive information and ideas regardless of their social worth."

Plainly, this right does not depend on the kind of serious literary or artistic value to which Miller referred. To the contrary, the right recognized in Stanley, by the Court's own language, can apply to valueless, worthless material - valueless and worthless, that is, as viewed under the standards of the community.

Thus, Judge Lancaster correctly concluded that this right - the right to privately read and view -- can protect even material (like Extreme Associates' films) that is not independently protected by the Miller test.

Applying Lawrence Once Again: Judge Lancaster Rejects Purely "Moral" State Interests

In addition, the Lawrence Court also reached another conclusion highly relevant to the Extreme Associates case. It concluded that the fact that a given law is a longstanding prohibition grounded in widely-held moral beliefs is not, in itself, a reason for a court to hold that law to be constitutional.

More than longtime consensus, is needed; depending on the applicable standard of review, either a "rational basis" or a "compelling interest" is required. Put bluntly: A thousand prosecutors can be wrong.

No wonder, then, that Judge Lancaster rejected the government's contention that, as he summarized it, "because the federal obscenity statutes have withstood constitutional attack for more than thirty-five years, this court lacks the authority to find that they are unconstitutional."

Judge Lancaster pointed out, to the contrary, that:

[A]fter Lawrence, 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.

Precluded from citing any longstanding moral interest, the government in Extreme Associates put forward another putative state interest in an attempt to justify charging the defendants with violations of the criminal obscenity laws: An interest in protecting children, and unconsenting adults, from seeing such material.

But Judge Lancaster did not find this interest convincing. He pointed out that the website already protected children and unconsenting adults by erecting a number of gates: To buy a film, the purchaser had to use a credit card, purchase a membership, and receive and use a password.

And in any event, Judge Lancaster noted, even if the criminal law of obscenity marginally did serve these interests, it was far too blunt an instrument to do so constitutionally. The Supreme Court has made clear that adults should not lose rights to view material just because a "determined minor" can figure out a way to access that material, too.

This second ruling by Judge Lancaster was also very convincing. Especially since civil penalties are an option, and the site does use a credit-card requirement to screen out most minors, it seems grossly excessive for the defendants to face jail sentences of up to five years under the law. When it comes to the First Amendment, especially, the punishment must fit the offense far better than this.

In addition, the Supreme Court has long held that adults cannot, in effect, be sent back to the nursery when it comes to First Amendment rights: Just as a few industrious sixteen-year-olds are doubtless going to sneak pornographic magazines from behind the cash register, so too will they figure out a way to get a credit card and download pornographic films. We may want to take measures to stop them, but such measures should not include treating all adults accessing a give site like sixteen-year-olds, in the fear that a few sixteen-year-olds will masquerade as adults and gain access to the site.

A Possible End to Recent Abusive Use of the Obscenity Laws

Over the past several years, the Ashcroft Justice Department has launched an all-out assault on materials it has deemed obscene. Judge Lancaster's opinion underlines one reason why we should be concerned about this campaign: It's not just about speech, but also about individual privacy and individual liberty.

Obscenity law is an embarrassment to constitutional law: It is perpetuated even by judges who as much as admit that its application is extremely subjective - and thus that potential violators lack notice as to when they may be overstepping.

It's elementary: Vague criminal laws violate due process. And laws banning speech precisely because of the effect it may have on the listener or viewer violate the First Amendment. Yet courts have pretended to ignore these two truths when it comes to obscenity law.

Let's hope that Judge Lancaster's novel approach can shock other judges into realizing what they've already known: Obscenity law is unconstitutional for multiple reasons - it strikes blows to fairness, free speech, and sexual privacy, as well.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99; among clients she aiding in representing was the National Enquirer. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her first novel, Three, will be published in the U.S. in summer 2003 by Plume; in the U.K. by Bantam; and in French translation by Actes Sud.

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