Last edited: February 20, 2005

Justice Dept. Fights Ruling on Obscenity

New York Times, February 17, 2005

By Eric Lichtblau

WASHINGTON—In a case representing a major test of the Bush administration’s campaign against pornography, the Justice Department said Wednesday that it would appeal a recent decision by a federal judge that declared federal obscenity laws unconstitutional.

The Justice Department said that if the judge’s interpretation of federal law was upheld, it would undermine not only anti-obscenity prohibitions, but also laws against prostitution, bigamy, bestiality and others “based on shared views of public morality.”

In a ruling last month in Pittsburgh, Judge Gary L. Lancaster of Federal District Court threw out a 10-count criminal indictment that charged a California video distributor, Extreme Associates, and the husband-and-wife team that owns it with violating federal obscenity laws. The company boasts of the particularly graphic content of its movies, with scenes of simulated gang rapes and other attacks on women, and its Web site declares, “See why the U.S. government is after us!”

While all sides agreed that the movies could be considered legally obscene, Judge Lancaster found that federal laws banning obscenity were unconstitutional as applied broadly to pornography distributors like Extreme Associates. The anti-obscenity laws “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 a 45-page opinion.

The closely watched decision was a boon to the multibillion-dollar pornography industry, which has been fighting efforts by the Bush administration to crack down on what the government considers obscene material, particularly on the Internet.

Attorney General Alberto R. Gonzales and his predecessor, John Ashcroft, declared the prosecution of pornography and child exploitation cases to be a high priority, and the Justice Department committed more lawyers and money to the issue in securing 38 convictions since 2001 in obscenity cases, officials said.

Mr. Gonzales, in announcing on Wednesday that the Justice Department would appeal Judge Lancaster’s ruling to the United States Court of Appeals for the Third Circuit, in Philadelphia, said the department “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.”

Louis Sirkin, a Cincinnati lawyer representing the pornography distributor, said he believed the judge’s opinion would be upheld.

“You can’t legislate morality,” Mr. Sirkin said. “You have to let people make their own personal decisions, and that’s the important principle at stake in this case.”

At issue are five hard-core pornographic movies that were sold and distributed by Extreme Associates, including several that were bought through the company’s Web site by an undercover postal inspector in Pittsburgh. Federal and local law enforcement agents executed a search warrant and seized material from the company’s Southern California office in 2003. The company as well as its owners, Robert Zicari and his wife, Janet Romano, who also goes by the name Lizzie Borden, were charged with violating federal obscenity laws.

Justice Department officials acknowledge that federal courts have given people the protection to view obscene material in their own homes, but they say that protection does not extend to selling and distributing obscene material.

Judge Lancaster disagreed. In his opinion throwing out the criminal charges, he relied on a 2003 Supreme Court decision, Lawrence v. Texas, that struck down a Texas homosexual sodomy law. In that case, the Supreme Court held that “liberty protects the person from unwarranted government intrusions into a dwelling or other private places.”

Judge Lancaster interpreted that ruling to mean that “public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct even if that conduct is deemed offensive to the general public’s sense of morality.”

The judge said he was not convinced by the government’s insistence on keeping pornography away from children or unwitting adults, because Extreme Associates required its customers to give their names and credit card information, join a club and pay a fee before downloading or buying videos.

A senior Justice Department official, who spoke on the condition of anonymity because the case is still pending, acknowledged that if Judge Lancaster’s opinion was upheld on appeal, it would “temporarily curtail” the Justice Department’s ability to prosecute a range of obscenity cases, at least in the Third Circuit.

But the official said the Justice Department was confident that settled case law clearly established the government’s power to regulate obscenity. In reviewing Judge Lancaster’s ruling, the official said, “We believe the court is wrong.”

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