Federal Judge Dismisses an Obscenity Prosecution on Privacy Grounds
A Decision That, If Followed, Could Transform the Law
By Julie Hilden, email@example.com
January 31, 2005
On January 20, U.S. District Judge Gary Lancaster—of
the U.S. District Court for the Western District of Pennsylvania, in
Pittsburgh—issued what I believe may be a very important right to privacy
Indeed, Judge Lancaster’s ruling might—if other
courts accept its logic—profoundly affect the future of obscenity law in the
United States. If so, it will make speech in this country more free, and
privacy more sacrosanct.
Judge Lancaster’s opinion is remarkable in that it
shows a federal trial judge’s willingness to admit what the U.S. Supreme
Court will not: The emperor—here, the law of obscenity—has no clothes.
Put bluntly, the law of obscenity, no matter how
longstanding, has never satisfied constitutional requirements, and it never
will. Finally, a judge has been brave enough to say as much. This opinion is
notable for that reason—and for Judge Lancaster’s novel approach. His
opinion attacks the obscenity laws on privacy grounds—and thus may be more
effective than pure free-speech attacks mounted in the past.
The Defendants, Their Website, and the Federal
Criminal Statutes Involved
To begin, it’s worth noting the context, and background
of the case. The defendants in the case before Judge Lancaster were Extreme
Associates, Inc., Robert Zicari, and Janet Romano. Zicari (a.k.a. Rob Black)
and Romano (a.k.a. Lizzy Borden) sell pornographic films through the mail, and
through the “members only” section of the Extreme Associates website.
The prosecution was brought under three federal obscenity
statutes—one statute that prohibits mailing matter that is “obscene, lewd,
lascivious, indecent, filthy or vile”; another statute that prohibits using
the Internet to traffic in such material; and a third statute that prohibits
conveying such material in interstate commerce.
The indictment purported to state ten law violations,
including a conspiracy charge. Each carried with it a potential prison
sentence of up to five years, and a fine.
Interestingly, each alleged violation also came out of a
“sting” operation in which a postal inspector, acting undercover, became a
member of the defendants’ website, and ordered the defendants’ films.
Thus, rather than acting on any aggrieved person’s complaint of having been
offended, the government seems to have been acting simply on its own,
targeting the films its own prosecutors happened to find especially offensive.
This kind of law enforcement is arbitrary and
idiosyncratic at best, and at worst, selective prosecution, in which the
government chooses especially-disliked persons and companies to target—doing
so based on the content of their speech. Enforcement that turns on such
individualized judgment makes a mockery of the very concept of law. And when
the cherry-picking is done based on the content of speech (here, the content
of the films at issue), it is especially noxious. Corollary to the concept
that speech must be free, is the concept that speech cannot be punished based
on its content.
The Traditional, Unsuccessful Attack on Obscenity Laws
Selective enforcement and content-discrimination,
however, may be among the least of obscenity law’s problems. Lawyers have
long tried to attack obscenity law as a simple, straightforward First
Amendment violation: These laws directly target speech, when the First
Amendment plainly says that to do so, is forbidden. (The Court has long held
that films and photos count as “speech” as fully as newspaper reports do.)
Yet the courts have always rebuffed these
attacks—carving out obscenity as an area of law that, anomalously, is
thought to be somehow outside the First Amendment’s scope. Now, however,
Judge Lancaster has accepted new arguments, grounded in the right of privacy,
that other courts may find more persuasive than those that have typically been
raised. Before looking at those new arguments, though, it’s worth focusing
briefly on the traditional, failed attacks.
Why didn’t simple First Amendment attacks on obscenity
laws ever persuade the Supreme Court? Perhaps the Court was simply
uncomfortable with putting speech with sexual content in the same category as
the political speech on which our democratic system is based—viewing these
kinds of speech as such strange bedfellows, it felt it had to put them in
separate areas of law.
The Supreme Court should have resisted its discomfort,
and yielded to logic. For example, “I know it when I see it” is obviously
an insufficiently clear standard for a law, especially a criminal law. Yet
this was Justice Potter Stewart’s not-very-reassuring reassurance as to how
he figured out what was, and was not, obscenity. (The comment occurred in
Stewart’s concurring opinion in the 1964 case of Jacobellis v. Ohio—in
which the Court reversed a state Supreme court’s judgment that a particular
film was obscene.)
Less famously, and even less reassuringly, the Justice
also mused, in the same dissenting opinion, that he might never be able to
“intelligibly” figure out what he meant by the kind of “hard-core
pornography” he deemed to fall within obscenity law. When a Supreme Court
Justice is confessing that he doesn’t know what the law means, and probably
never will, how is a layperson supposed to figure it out?
The truth is that—Supreme Court decisions to the
contrary—obscene speech, simply because it is speech, plainly is within the
First Amendment’s protections. A quick look at the wording of the First
Amendment ought to establish that.
Yet this argument has been repeated so many times, with
so little success, that lawyers have virtually given up on making it.
Fortunately, however, the lawyers for the defendants in
the Extreme Associates case took a different tack: They categorized
pornographic speech—indeed, even obscene speech—not just as speech, but
also as part of readers’ and viewers’ sexual liberty and sexual privacy.
And Judge Lancaster wisely accepted, and eloquently elucidated, these
Putting the First Amendment Issue Aside: Agreeing that
the Obscenity Law Applies
Before analyzing Judge Lancaster’s holding, it’s
useful to see what he did not hold: He did not hold that these materials were
non-obscene. To the contrary, he assumed that they were.
The assumption was quite reasonable: Most would agree
that the material Extreme Associates sells is repellent; it depicts women
being defecated on, and also depicts them—fictionally—being gang-raped,
and having their throats slit. But these are not “snuff films” or “rape
films”: The women’s participation is consensual. If it were not, the
crimes could, of course, be constitutionally prosecuted, and the films
themselves constitutionally confiscated.
Indeed, for the purposes of this dispute, even the
defendants agreed that this material is obscene under the currently-applicable
test for obscenity—set forth by the Supreme Court in Miller v. California.
For the Miller test to be satisfied, and speech to be constitutionally
proscribed as obscene, the Court held, the material at issue must depict or
describe sexual conduct in a patently offensive way (as defined by the
community); the conduct must be specifically described in the law; and the
work must, taken as a whole, lack serious literary or artistic value and must
appeal to a prurient interest in sex. The films at issue here seem to pass the
test—and thus, would be deemed, by most, to be obscene under its
For all these reasons, Miller was not an issue here. So
Judge Lancaster’s ruling concentrated on two other precedents: Lawrence v.
Texas and Stanley v. Georgia
Applying Lawrence: Judge Lancaster Defines Liberty to
Including Viewing Sexual Films
In Lawrence, the court struck down a law criminalizing
same-sex sodomy. In so doing, it held that the constitution’s definition of
liberty includes the right of adults to conduct consensual personal
relationships “in the confines of their homes and their own private
lives.” And it underlined that that is true even when those relationships’
“overt expression” is through “intimate conduct.” In short, liberty
includes the liberty to have sexual relations.
From this, Judge Lancaster concluded that this liberty
also includes the liberty to view sexual material in the privacy of one’s
home. In support of this argument, the judge pointed to the Supreme Court’s
holding in Stanley v. Georgia.
In Stanley, the Court had held that a state cannot
criminalize the mere possession of sexual material in one’s home even if it
is obscene. The reason? Because, the Court said, there is a “right to
receive information and ideas regardless of their social worth.”
Plainly, this right does not depend on the kind of
serious literary or artistic value to which Miller referred. To the contrary,
the right recognized in Stanley, by the Court’s own language, can apply to
valueless, worthless material—valueless and worthless, that is, as viewed
under the standards of the community.
Thus, Judge Lancaster correctly concluded that this
right—the right to privately read and view—can protect even material (like
Extreme Associates’ films) that is not independently protected by the Miller
Applying Lawrence Once Again: Judge Lancaster Rejects
Purely “Moral” State Interests
In addition, the Lawrence Court also reached another
conclusion highly relevant to the Extreme Associates case. It concluded that
the fact that a given law is a longstanding prohibition grounded in
widely-held moral beliefs is not, in itself, a reason for a court to hold that
law to be constitutional.
More than longtime consensus, is needed; depending on the
applicable standard of review, either a “rational basis” or a
“compelling interest” is required. Put bluntly: A thousand prosecutors can
No wonder, then, that Judge Lancaster rejected the
government’s contention that, as he summarized it, “because the federal
obscenity statutes have withstood constitutional attack for more than
thirty-five years, this court lacks the authority to find that they are
Judge Lancaster pointed out, to the contrary, that:
[A]fter Lawrence, the government can no longer rely on
the advancement of a moral code, i.e. preventing consenting adults from
entertaining lewd or lascivious thoughts as a legitimate, let alone
compelling, state interest.
Precluded from citing any longstanding moral interest,
the government in Extreme Associates put forward another putative state
interest in an attempt to justify charging the defendants with violations of
the criminal obscenity laws: An interest in protecting children, and
unconsenting adults, from seeing such material.
But Judge Lancaster did not find this interest
convincing. He pointed out that the website already protected children and
unconsenting adults by erecting a number of gates: To buy a film, the
purchaser had to use a credit card, purchase a membership, and receive and use
And in any event, Judge Lancaster noted, even if the
criminal law of obscenity marginally did serve these interests, it was far too
blunt an instrument to do so constitutionally. The Supreme Court has made
clear that adults should not lose rights to view material just because a
“determined minor” can figure out a way to access that material, too.
This second ruling by Judge Lancaster was also very
convincing. Especially since civil penalties are an option, and the site does
use a credit-card requirement to screen out most minors, it seems grossly
excessive for the defendants to face jail sentences of up to five years under
the law. When it comes to the First Amendment, especially, the punishment must
fit the offense far better than this.
In addition, the Supreme Court has long held that adults
cannot, in effect, be sent back to the nursery when it comes to First
Amendment rights: Just as a few industrious sixteen-year-olds are doubtless
going to sneak pornographic magazines from behind the cash register, so too
will they figure out a way to get a credit card and download pornographic
films. We may want to take measures to stop them, but such measures should not
include treating all adults accessing a give site like sixteen-year-olds, in
the fear that a few sixteen-year-olds will masquerade as adults and gain
access to the site.
A Possible End to Recent Abusive Use of the Obscenity
Over the past several years, the Ashcroft Justice
Department has launched an all-out assault on materials it has deemed obscene.
Judge Lancaster’s opinion underlines one reason why we should be concerned
about this campaign: It’s not just about speech, but also about individual
privacy and individual liberty.
Obscenity law is an embarrassment to constitutional law:
It is perpetuated even by judges who as much as admit that its application is
extremely subjective—and thus that potential violators lack notice as to
when they may be overstepping.
It’s elementary: Vague criminal laws violate due
process. And laws banning speech precisely because of the effect it may have
on the listener or viewer violate the First Amendment. Yet courts have
pretended to ignore these two truths when it comes to obscenity law.
Let’s hope that Judge Lancaster’s novel approach can
shock other judges into realizing what they’ve already known: Obscenity law
is unconstitutional for multiple reasons—it strikes blows to fairness, free
speech, and sexual privacy, as well.
Julie Hilden, a FindLaw columnist, practiced First
Amendment law at the D.C. law firm of Williams & Connolly from 1996-99;
among clients she aiding in representing was the National Enquirer. Currently
a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her
first novel, Three, will be published in the U.S. in summer 2003 by Plume; in
the U.K. by Bantam; and in French translation by Actes Sud.
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