Last edited: March 06, 2005

What Adults Watch Is None of the Government’s Business

Salt Lake Tribune, March 2, 2005

By Robyn Blumner

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 anti-obscenity laws, basing a good deal of his rationale on Lawrence v. 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 carrying 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 on 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 cases involving adults 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 could stand.

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 adults viewing dirty movies in private is none of the government’s business. He cited the famous 1969 Supreme Court case of Stanley v. 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 tsking disapproval.

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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