What You Need to Know About the Extreme Associates Case

< Entire article posted by permission of the Author and AVN magazine - This article is NOT just about pornography - the issues have broad implications. >

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What You Need to Know About the Extreme Associates Case
By: Mark Kernes
 
PITTSBURGH -

The end of obscenity? Don't bet the farm on it... yet.

That's only one of the cautionary pieces of advice from First Amendment attorneys from around the country who, while extremely (no pun intended) gratified by the decision of U.S. District Court Judge Gary Lancaster in the Ashcroft v. Extreme Associates case, brilliantly argued by Cincinnati attorney H. Louis Sirkin, aren't counting their chickens before they're hatched.

"This decision binds no other court and it is very, very possible that other judges in other jurisdictions will disagree as the issue comes before them," wrote J.D. Obenberger, a Chicago-based First Amendment attorney. "You can count on the proposition that a motion similar to that granted here will be filed and argued in every obscenity case in which the defendant is represented by capable First Amendment lawyers. Attorney Lou Sirkin of Cincinnati brought this motion, but this was not the first time he advanced the arguments it contained."

Most recently, Sirkin did make such an argument, which is largely based on the substantive due process rights affirmed in the U.S. Supreme Court's Lawrence v. Texas decision, in response to state obscenity charges lodged against Ohio bookstore owner Shawn Jenkins, but the argument was rejected by Judge Gorman of the Ohio First District Court of Appeals. However, Sirkin will use an expanded version of the argument, which now will have a better chance of being accepted, in Jenkins' appeal to the Ohio Supreme Court. 

Better still, attorney Paul Cambria will be citing the Lancaster opinion in his petition for reconsideration of certiorari in an "obscene device" case, 1190 Cobb LLC d/b/a Waterpipe World v. City of Marietta.

"We have a case out of Georgia, and it's basically a device case, and the law down there is hooked into obscenity," Cambria explained. "Last week, denied the petition. One of the arguments we raised was Lawrence v. Texas, and it was denied. So now we have a decision recognizing Lawrence v. Texas, so we're moving to reargue, and will point out to the Court that we now have several conflicting decisions, one of which is a positive one. The Supreme Court can have a total short-circuit of all the Circuits and address this issue right now if they accept cert on our case. That would get us away from the material and to a point where we're just talking a rubber good being per se obscene, and that would be a much better situation from the fact standpoint."

Several sections of Judge Lancaster's memorandum opinion are worth quoting, since they set the stage for many of the arguments that will be made in future obscenity rulings, as well as the attorneys' discussion of the issues here.

(Preliminarily, it's worth noting that the judge writes, "Defendants do not dispute, for purposes of this motion, that the films involved in this case are obscene within the meaning of Sections 1461, 1462 and 1465 and as that term is defined in Miller v. California." At least one commentator on this case has declared that the defendants have simply admitted that the material is obscene. That would be an incorrect reading of the opinion; the defendants have admitted it only hypothetically for purposes of the motion to dismiss, and the admission would have no weight in any other proceedings in the case.)

"Courts use one of two tests to assess the constitutionality of statutes that are faces with a substantive due process challenge: the strict scrutiny test of the rational basis test," wrote Judge Lancaster. "Therefore, we must first determine which test should be applied in this case."

"Where the law restricts the exercise of a fundamental right, we apply the strict scrutiny test... Under the strict scrutiny test, a statute withstands a substantive due process challenge only if the state identifies a compelling state interest that is advanced by a statute that is narrowly drawn to serve that interest in the least restrictive way possible... In other words, even if the government has a state interest that rises to the level of being compelling, if there is a less restrictive way to advance it, the statute fails this test." 

"Where it is not a fundamental right that is restricted, we apply the rational basis test... Under the rational basis test, a statute withstands a substantive due process challenge if the government identifies a legitimate state interest that the legislature could reasonably conclude was served by the statute... It is not enough under the rational basis test, however, for the government to simply announce some theoretical and noble purpose behind the statute. Rather, the statute must reasonably advance that purpose in order for the statute to survive even this deferential test."

The question of which test to use is crucial, since the strict scrutiny test places a greater burden on the government to justify its law than does the rational basis test.

"Here's the situation," explained Chicago-based First Amendment attorney Reed Lee, a member of the board of the Free Speech Coalition. "On that June day in 1973, the Court actually decided four cases. Miller v. California is the most famous of them, because it was the lead case where the court did most of its discussion of what obscenity is and is not, and in which it announced the currently-governing three-prong test for obscenity. It did so by making some adjustments to an earlier three-prong test. So Miller v. California is the case that gets talked about all the time."

"Now, Miller involved unsolicited mailings. In other words, as the court saw the Miller case, somebody would open an envelope with no warning, and out would come a sexually-explicit advertising brochure, which, from the way the Court described it, had sexually explicit photographs in it – I think it was a photo montage – and from the record description, these really were hardcore. So Miller itself involves the case of somebody opening an envelope and seeing hardcore pornography. Miller comes very close to what we know of as pornographic e-mail spam: You click on something, unsuspecting, and bang, there's a sexually explicit image. In that context, it's one thing to say that there's some room for obscenity law."

"The same day, though, the Supreme Court decided a case, and it was the second in the series, and the other one that bore a lot of discussion about constitutional issues, called Paris Adult Theater I v. Slayton. That case upheld an obscenity conviction for the showing of a movie in an adult motion picture theater. In that case, people were warned; they walked past written warnings; they were warned at the ticket counter that the movie involved sexually explicit expression, and they nevertheless paid to see the movie. That's a different matter. In that situation, only adults are involved; no children depicted in the motion picture; no children in the audience; solely adults only, and in that context, somebody wanted to say it, somebody wanted to hear it, and one can argue that under those circumstances, the government has no business interfering with that expression."

"This recent opinion would essentially leave the result in Miller untouched, but it does seriously call into question the result, which I've always thought was unsound, in Paris Adult Theater I v. Slayton. And what we would be left with is a rule that among consenting adults, the government has no business interfering with sexually-oriented expression. Government's free to regulate what's exposed to children, and the government is free to say that this is not the sort of thing that you should impose on your unwilling neighbors, even adult neighbors. So obscenity law then becomes a question of what the community accepts as part of the open expression that everybody's exposed to, as opposed to what the community tolerates other people in the community, other individuals, seeing or hearing."

The strict scrutiny test would force the government to show a lack of community toleration; the rational basis test, which is the government's position as to the current state of the law, would (supposedly) gauge actual community acceptance – a more difficult burden for the defense.

The "This Would Be Funny If It Weren't Worth Five Years Of Your Life In Prison" Department:

"The government contends that 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," wrote Judge Lancaster. "On the merits, the government argues that there is no fundamental right involved in this case and that this court should not create a 'new' fundamental right to commercially distribute obscene material. According to the government, the Supreme Court did not subject Texas' sodomy law to the strict scrutiny test in Lawrence, and therefore, there is no basis to subject the federal obscenity statutes to that exacting level of constitutional scrutiny."

But the Lawrence case had virtually no First Amendment/free speech implications; it was all about private sexual conduct, and the Supreme Court found that the government had no business sticking its police-power nose into consenting adults' bedrooms because, the majority found, the government has no business legislating the moral attitudes of its citizens. The Court similarly denied the government that power, in Stanley v. Georgia, even for material ruled obscene by courts at all levels: Citizens can possess admittedly obscene material – child pornography excluded – in the privacy of their own homes.

"In 1957 the Supreme Court announced that 'obscenity is not within the area of constitutionally protected speech' under the First Amendment," wrote Judge Lancaster, citing Roth v. United States. "Twelve years later, however, the Supreme Court held that a state could not make the mere private possession of obscene material in one's home a crime... In doing so, the Court did not hold that obscene material had become protected speech. Rather, the Court recognized that freedom of speech goes beyond self-expression and includes the fundamental right to 'receive information and ideas regardless of their social worth' – a quote from the Stanley decision.

What the Extreme Associates case implicates is the question left unanswered but clearly implied by Stanley: How does that material get into the home in the first place? Most people don't make their own sexually explicit material; it usually comes to them by some form of commerce – and in the case of Extreme Associates, the methods used were mail order and via accessing a pay site on the Internet.

"It becomes a void right," Sirkin said, "and it's all about the statement the judge made in the decision, 'What good is it to say you can read the Communist Manifesto if you can't get it?' It's a right in a vacuum, which is why I like the concept of trying to blend a First Amendment right, a due process right and the right of privacy together in the liberty interest that I have as a free American. I think it's really significant in that way.  Stanley very often gets confused as to what Stanley really held, as to whether it's a Fourth Amendment right – you know, your home is your castle – or is there a right of freedom of thought? And they overlap, and I think this now bringing Griswold into it, this liberty interest of making your own choices."

For years, the Supreme Court has denied the right-to-sell implication, consistently ruling in cases like United States v. Orito and United States v. Thirty-Seven (37) Photographs, involving interstate transport of material deemed "obscene" by lower courts, that there was something about the selling of the material that attached greater "harm" to it than merely possessing it. To free speech attorneys, this seemed to directly contradict decisions like Stanley, as well as Griswold v. Connecticut, where the Court held that Connecticut could not prohibit doctors from prescribing contraceptives for their patients and implying, perhaps more importantly in this context, that patients could not be prohibited from buying them.

"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," wrote Justice William O. Douglas in Griswold, referring to a number of privacy rights cases previously decided. The instant case suggests that the right to buy sexual, even obscene, material for private use is one of those "emanations."

Judge Lancaster relied heavily on Lawrence v. Texas for his authority, and used it to clearly mark the limits of his decision:

"Because the case involved two consenting adults engaged in sexual activity in the privacy of their own home and not minors, persons who might be coerced or injured, public conduct, or prostitution, the Court found that no state interest – including promoting a moral code – could justify the law's intrusion into the personal and private life of the individuals involved."

But perhaps more importantly, Judge Lancaster continued with:

"In a dissenting opinion joined by Chief Justice Rehnquist and Justice Thomas, Justice Scalia opined that the holding in Lawrence calls into question the constitutionality of the nation's obscenity laws, among many other laws based on the state's desire to establish a 'moral code' of conduct... It is reasonable to assume that these three members of the Court came to this conclusion only after reflection and that the opinion was not merely a result of over-reactive hyperbole by those on the losing side of the argument."

In fact, Justice Scalia's words were, "It seems to me that the 'societal reliance' on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is 'immoral and unacceptable' constitutes a rational basis for regulation. See, e.g., Williams v. Pryor (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that 'he crafting and safeguarding of public morality ... indisputably is a legitimate government interest under rational basis scrutiny'); Milner v. Apfel (citing Bowers for the proposition that 'egislatures are permitted to legislate with regard to morality ... rather than confined to preventing demonstrable harms'); Holmes v. California Army National Guard (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State (relying on Bowers in holding that 'a person has no constitutional right to engage in sexual intercourse, at least outside of marriage'); Sherman v. Henry (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc... that Indiana's public indecency statute furthered 'a substantial government interest in protecting order and morality' .... State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding."

It's always dicey for a federal district judge to quote from the dissenters in a Supreme Court decision, but in this case, it is apparently the opinion of three of the high court's most conservative members that the Lawrence decision "calls into question ... laws based on moral choices." However, it remains to be seen, possibly in a Supreme Court review of this very case, whether those in the majority of the Lawrence decision actually accept that characterization.

Fortunately, Judge Lancaster doesn't base his conclusions solely on Lawrence. In fact, his main use for the case is its (dissenting) observation that laws to promote morals fail the strict scrutiny test.

"In Stanley, the Supreme Court explicitly stated that the right to read, observe, or think about what one pleases in his own home, including obscene material, is 'fundamental to our scheme of individual liberty'," wrote Judge Lancaster. "That principle of law in not in dispute. Nor has it been disputed by the government that this right is burdened by the federal obscenity statutes, which criminalize the distribution of such material."

Eventually, Judge Lancaster gets to the crux of the government's argument.

"Although the government requested and was granted more time to brief the limited issue of the application of the strict scrutiny test to this case, it has failed to identify a compelling state interest justifying the total ban on distribution of obscene material, even in the form of an 'in the alternative' argument," Judge Lancaster stated. "Instead, the government states that the rational basis test should be applied, and that under that test, the duel legitimate state interests of: 1) protecting children from viewing obscene materials; and 2) protecting unwitting adults from inadvertent exposure to obscene materials, justify a complete ban on its distribution."

Basically, the government has nowhere to go from there. Keeping obscenity away from children and out of the view of adults who haven't consented to see it are, arguably, legitimate state interests. However, those interests can easily be accomplished by means well short of a complete ban on the material – and Judge Lancaster devotes several pages to saying so.

"Therefore, even if the asserted interest of protecting unwitting adults from inadvertent exposure to the offensive material were found to be a compelling one, a total ban is clearly not the least restrictive means of achieving that goal. In fact, defendants themselves have accomplished the goal of keeping the video tapes and video clips away from unwitting adults by the restrictive method they utilize to allow access to their material. Therefore, because of the manner in which the charged video tapes and video clips are accessed, the federal obscenity statutes, as applied to these defendants, cannot withstand analysis under the strict scrutiny test."

"We are not persuaded by the government's argument that a total ban is necessary because, even if the material is initially received for private use, it might later be distributed for viewing other than in private. First, the government can create laws that punish those who distribute obscene material to be viewed other than in private. Second, there are many activities that the law recognizes a person may constitutionally engage in in his home that could be made criminal if done in public."

Judge Lancaster cited public drunkenness, gun possession and nudity as examples.

The judge found, similarly, that children's possible access to the material was also not sufficient grounds for a total ban.

"As a general rule, the Supreme Court has not allowed the fact that a determined minor might access inappropriate materials to justify a complete ban on their distribution, thus reducing the adult population to only what is fit for children," the judge wrote. "Rather, along with such appropriate restrictions imposed by the government, such as age requirements, parents are expected to control their children's access to inappropriate items, such as alcohol, tobacco, firearms, and sexually explicit movies. As the Supreme Court recognized in Ashcroft v. American Civil Liberties Union, a total ban on the distribution of materials cannot be justified on the assumption that parental supervision of their minor children's activities is an ineffective means of protecting minors from viewing inappropriate material."

Ashcroft v. ACLU is more familiarly known as the Child Online Protection Act (COPA) case. 

"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," Judge Lancaster concluded. "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."

Again, note the key words, "as applied to these defendants and the facts of this case." There are still plenty of possible scenarios where federal obscenity laws would still apply, and adult business owners should remain wary of that fact. That said, however, the mail-order aspect of Ashcroft v. Extreme Associates, where a postal inspector or other governmental official affirmatively finds and orders a specific video feature from a mail-order provider and receives it in the privacy of his/her own home, is the classic government sting operation; one which has resulted in scores of convictions over the years, and one which, if this case is upheld, they will no longer be able to do. 

"Although the Court's analysis is limited to the circumstances of this particular case," noted Frederick Lane III, author of Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age and owner of SexBizLaw.com, "it is a well-reasoned opinion and one that raises serious questions about the ability of the federal government to enforce obscenity laws against adult Web sites on the Internet. Although I'm sure the government would like to appeal, they're also going to weigh whether the risk of a similar appellate or US Supreme Court decision outweighs simply dropping this prosecution."

Sirkin readily agrees.

"I should think that it'll make them start to think again about the prosecutions," Sirkin told AVN.com. "I think the steamroller effect that they were trying to create out in the public, that the public relations was claiming, it's sort of like that the momentum has shifted; I think this is a momentum-shifting event, and it hopefully will slow them down and cause them rethink the positions they've been taking, and start to see, as I've always said, I think America has a lot more serious problems than worrying about what consenting adults want to watch for their entertainment or pleasure in the privacy of their own homes, and I hope this will be a wake-up call."

One logical question is how this ruling might apply to the case of an adult store with no arcade (viewing) booths, which simply rents or sells an adult video to a customer, who then takes the item and views it in the privacy of his/her home. Such was the case of Christie's, an adult video and novelty store located in the Granada Park Shopping Center in the Denver suburb of Aurora, Colorado, which challenged a local zoning ordinance declaring Christie's a "sexually oriented business" and requiring it to move to another, differently-zoned location. The case was won by veteran First Amendment attorney Arthur Schwartz at the district court level, but was overturned on appeal to the Tenth Circuit.

"This case leaves the zoning and related litigation untouched," opined Reed Lee. "The Supreme Court has allowed for regulation of sexually oriented businesses by zoning and certain other measures because it has accepted governmental bodies' conclusions that these places have untoward secondary effects, and the question in that case was, does a store that only rents videos for take-out, where the consumption is off the premises, does that store focus any secondary effects on the location of the store?

“Virtually all of the previous adult use zoning cases that involved bookstores or video stores involved stores with an arcade with on-premises viewing, so there the issue was, there's no reason to believe that the secondary effects aren't theoretically accompanying this."

However, for police attempting to make obscenity busts at local arcadeless video stores, the answer may be different.

"I think this case absolutely does affect bookstores," Sirkin said, "and anyone who tries to keep Judge Lancaster's ruling on a very narrow basis and not apply it to a retailer that sells to people that come into a store and buy it and they're going to ultimately take it home or view it somewhere private, I think is ignoring the reality of the opinion, the decision."

On a more personal note, however, Sirkin is upset by some Web masters who've deemed Extreme owners Rob Black and Lizzy Borden to be "not friends of the industry."

"They say he's no friend; that's an excuse," Sirkin charges. "That's their jealousy that they didn't have the guts to speak up and they didn't have the guts to stand by him. It's not a matter of liking him as an individual or not. In a sense, it's not a popularity contest. The First Amendment isn't based upon what A, B and C like versus D, E and F. 

“I get really ticked about it sometimes; all those guys that think they live in an ivory tower; they should remember the anonymous originator of the World War II quote, 'First they came for the labor unionists, and I didn't speak up because I didn't belong to a labor union,' and remember that it ends, 'And one day they came for me, and there was nobody left to speak up for me.' That's the thing. You've got to begin at the beginning. 

“As I've always said, censorship is a cancer to freedom, and sometimes we get a cancer that's really bad, but that doesn't mean we don't try to fight it. I'm happy for Rob in the sense that he let me do my thing, he supported it, he didn't second-guess what we were doing with it; he let us go with it. I let him talk his way and whatever, and I'm just really thrilled for them."

Will it make the justice dept. back off for a while to see where this case goes? Or will they try to get a case going in as many jurisdictions as possible to get conflicting rulings?

I do think that they will try to make the appeal process go as slowly as possible, with an eye to keep it out of the supreme court until the makeup of the court changes.

I think they plan to change the court SOON. And by whatever means are necessary. They know that they have a very limited time in which to act as the '06 elections could put their majority at risk.

Lets be clear about this; The only sex acceptable to these goons is married vanilla sex for procreation. Anybody whose sex life isn't like that is a target.