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Extreme Associates obscenity case dismissed; federal obscenity laws declared unconstitutional
In a decision that is bound to have enormous impact on the Adult entertainment industry, obscenity charges against producer Rob Black and his wife Lizzy Borden of Extreme Associates were thrown out of court today by a federal judge in Pittsburgh. “I’m still speechless,” Black told AVN.com. “All ten counts against us were dismissed.” He said that U.S. District Court Judge Gary Lancaster made the dismissal on the grounds that obscenity laws are unconstitutional. “We find that the federal obscenity statutes place a burden on the exercise of the fundamental rights of liberty, privacy and speech,” wrote Judge Lancaster in his opinion. [...] Black’s laywer, H. Louis Sirkin, told AVN.com, “It’s very gratifying to have been a part of what I think is a historic landmark decision. Even though it’s on the first level, hopefully this will have a catalyst effect across the country on any federal obscenity cases that are currently pending.” Sirkin said it shows the importance of the Bill of Rights, not just the right to free speech but the right to substantive due process. “We have a liberty interest to find sexual entertainment and to find media material that might be stimulating, and we have a right to view that, for whatever purposes we want to use it for,” he said. Noting that the judge based his decision on the Supreme Court’s Lawrence vs. Texas ruling last year, which struck down a Texas sodomy statute, Sirkin said, “This court has adopted the language of what Justice Scalia had said in his dissenting opinion in Lawrence.” Scalia wrote in part that the decision “called into question” laws against obscenity and various other offenses. In a statement from the Justice Department, U. S. Attorney Mary Beth Buchanan said, “We are very disappointed by the court’s decision to dismiss the indictment in U.S. v. Extreme Associates, et al. As we set forth in the pleadings we filed in the case, we continue to believe that the federal obscenity statutes are valid and constitutional, including as applied in this case. “We are reviewing the ruling and examining our options, which could include an appeal to the United States Court of Appeals for the Third Circuit.” AVN has posted Lancaster's order of dismissal and the Justice Department's official response (in PDF). I'm not a fan of Black and Borden's brand of porn, especially the simulated violent rape scenarios, but this is great news for First Amendment lovers. Earlier Daze items about Extreme Associates, Rob Black and Lizzie Borden and the obscenity prosecution. UPDATE: Mainstream news items about the dismissal here and here and here. The government argued its prosecution of Extreme Associates was valid because the government has the right to restrict the distribution of obscene materials as a way to protect minors and people who don't want access to it. Lancaster said the criminal case against Extreme Associates isn't the right way to proceed. "A total ban is clearly not the least restrictive means of achieving that goal," Lancaster ruled. He said filters and other technological devices can restrict access to Web sites that display or sell pornographic material. He said prosecutors should find ways other than filing a criminal case against the California couple to advance the government's stated interests of protecting minors and unwitting adults from exposure to obscene material, the judge ruled. UPDATE: Orin Kerr at The Volokh Conspiracy doesn't think much of Lancaster's decision. "Whatever you think about obscenity law, this opinion is pretty clearly inconsistent with existing doctrine. Expect the Third Circuit to overturn it." UPDATE: Lots more good coverage and links at Boing Boing and Fleshbot.
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AVN reports on a huge legal victory for free speech rights: