A Victory for Privacy
Petersburg Times, February 27, 2005
By Robyn E. Blumner, Times Perspective Columnist
Antonin Scalia warned this would happen. The U.S. Supreme
Court justice said that by striking down a Texas law prohibiting homosexual
sodomy, the high court would unleash moral Armageddon, leading to the setting
aside of laws barring fornication, adultery and obscenity, among others.
Well, he was right on one count.
In a stunningly clear-eyed decision in January, a federal
district court judge in Pittsburgh set aside three federal antiobscenity laws,
basing a good deal of his rationale on Lawrence vs.
Texas, the Texas homosexual sodomy case decided in 2003, just as
Scalia had feared.
The congratulations for this wise and liberty-expanding
ruling go to Judge Gary Lancaster, who now has done as much to expand the
sphere of privacy and personal autonomy protected by the Constitution as any
judge since Justice William O. Douglas declared in 1965 that Connecticut
couldn’t imprison married couples for using contraceptives.
This case involves the work of a husband-and-wife team of
California pornographers. Their company, Extreme Associates, is known for its
hard-core fare. A postal inspector, working undercover, ordered some movies
and accessed some video clips through the couple’s members-only Web site,
resulting in a 10-count indictment. Each offense carries up to five years in
prison and a fine.
The Justice Department really has nothing better to do
than put people in jail for providing explicit movies to adults who want to
see them? Last time I checked, there were real crimes being committed against
real victims, but the department in the Bush administration has made reviving
its obscenity prosecutions a priority. Since 2001, there have been 38
obscenity-related convictions, following a 10-year lull during which virtually
no adult pornograhy cases were brought.
Normally, those charged with distributing obscene
material use a free speech defense, claiming the material does not meet the
legal definition of obscenity. But Extreme Associates advertises its videos as
pushing the limits of the law, boasting on its Web site, “See why the U.S.
government is after us!”
The Texas sodomy decision offered another option.
The court in Lawrence breathed new life into the
idea that the Constitution protects intimate sexual practices engaged in by
consenting adults in private, even when such practices are disfavored or
viewed as immoral.
“Liberty presumes an autonomy of self that includes
freedom of thought, belief, expression and certain intimate conduct,” wrote
Justice Anthony Kennedy for the majority. His opinion proclaimed a broad
protection against states’ making homosexual relationships criminal.
By logical extension, this same principle of sexual
liberty should apply to adults who wish to view hard-core pornography.
Louis Sirkin, the couple’s Cincinnati-based attorney
and a civil liberties expert, said he had been trying to get the courts to
recognize a more expansive right to liberty and privacy since the 1970s but
dropped the effort when the court initially ruled in 1986 that sodomy laws
Now, he says, the time is ripe to make the assertion
again, not only because of the Lawrence decision, but “because now we have
begun to recognize that sex is not just for procreation it’s also for fun.
“The advertisements for all the enhancement
prescriptive drugs that are out in the marketplace (are promoting) the
pleasure aspects of human sexuality.”
Judge Lancaster was convinced by the argument that it is
none of the government’s business whether adults view dirty movies in
private. He cited the famous 1969 Supreme Court case of Stanley vs. Georgia,
which states flatly that the government cannot make it a crime to possess
obscene material in the privacy of one’s own home. Lancaster said the case
recognized a fundamental right “to read, observe, or think about what one
pleases in his own home.” (Absurdly, while the Supreme Court has said that
having obscene material in one’s home is constitutionally protected, having
it mailed to you or sold to you is not.)
Lancaster also found that the Texas sodomy ruling
essentially told the state it could no longer justify criminal laws based
purely on the advancement of a moral code.
Once that argument was taken away, the Justice Department
had little ammunition to defend the application of the obscenity laws to
Extreme Associates. Today, when sexually explicit material can be sent
directly through a computer to an adult purchaser (no seedy shops to bring
down a neighborhood), the state has no real interest in interfering, beyond
Lancaster’s ruling was a masterstroke of sound
judgment. But I’d be very surprised if it survives appeal.
Earlier this month, the U.S. House of Representatives
approved fines of up to $500,000 for any profanity uttered on television. We
live in a nanny state, and those who think their personal repugnance should
translate into criminal law are in charge. Scalia’s worries are overheated
and not likely to come to pass—much to the detriment of liberty.
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