Last edited: February 20, 2005

U.S. Appeals Pittsburgh Judge’s Obscenity Ruling

Federal judge ruled laws infringe on consenting adults’ rights to possess material

Pittsburgh Post-Gazette, February 17, 2005
34 Blvd. of the Allies, Pittsburgh, PA 15222

By Michael McGough, Post-Gazette National Bureau

WASHINGTON—U.S. Attorney General Alberto R. Gonzales announced yesterday that the Justice Department will appeal an order by a federal district judge in Pittsburgh dismissing a 10-count obscenity indictment against a Los Angeles-based supplier of sexually explicit material through the mails and over the Internet.

“The Department of Justice places a premium on the First Amendment right to free speech, but certain activities do not fall within those protections, such as selling or distributing obscene materials,” Gonzales said.

The lawyer for the firm, Extreme Associates, and principals Robert Zicari and Janet Romano, said he had expected the government to appeal.

“I’m not surprised,” Cincinnati attorney H. Louis Sirkin said in an interview yesterday. “We expect to prevail” in the appellate court, he added.

On Jan. 20, U.S. District Judge Gary Lancaster dismissed the indictment, despite claims by U.S. Attorney Mary Beth Buchanan that the company sold obscene materials, including depictions of women being gang-raped, defecated on and having their throats slit. Lancaster ruled that federal laws against the distribution of obscene material infringe the constitutional rights of consenting adults to possess it.

“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,” the judge wrote.

In asking Lancaster to dismiss the indictment, Sirkin cited Lawrence v. Texas, the U.S. Supreme Court’s 2003 decision striking down a Texas law against same-sex sodomy. Yesterday, the lawyer said Lancaster “was applying what is the essence of Lawrence v. Texas.”

Under a series of Supreme Court decisions, obscenity—as opposed to pornography, which is protected by the First Amendment—is defined as “works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way and which, taken as a whole, do not have serious literary, artistic, political or scientific value.”

In asking for the indictment to be dismissed, Sirkin did not concede that the material distributed by his clients was obscene. But even if it met the legal test, he said, they couldn’t be prosecuted because of developments in constitutional law.

Yesterday, Sirkin acknowledged that the law of obscenity had not changed but added: “What has changed is how we approach the enforcement of laws against consenting adults.”

Although some reports described Gonzales’ decision to appeal Lancaster’s order to the Philadelphia-based 3rd U.S. Circuit Court of Appeals as the new attorney general’s first official act, Justice Department spokesman Bryan Sierra said that wasn’t the case. “The decision was in the works before he took over,” Sierra said.

At his confirmation hearings, Gonzales told the Senate Judiciary Committee that enforcement of laws against obscenity would be a priority for him. “I think obscenity is something else that very much concerns me,” he said. “I’ve got two young sons, and it really bothers me about how easy it is to have access to pornography.”

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