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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