ASB Magazine

by Jeffrey Douglas

Get the low-down on the raging and controversial federal prosecution of Extreme Associates. Does it mark the beginning of the end? Is it an isolated incident? What are its implications for Adult Retailers?

There has been much discussion and attention about the Federal prosecution of Extreme Associates in the Western District of Pennsylvania. The company and principals are being prosecuted for distributing obscenity through their website, via downloads (video on demand) and mail order.

There was no brick and mortar retailing involved. Nevertheless, this case has evolved into a fundamental battle over the power of the government to prosecute obscenity cases when only consenting adults participate. It has the potential to be the most important criminal prosecution affecting your business in your lifetime.

Legal Background

First of all, obscenity is unique among all criminal laws, because there is no definition in advance of a jury verdict, of what is criminal and what is not. There is no list of acts which is per se illegal to put into a movie or magazine. That gives enormous discretion to prosecutors to decide who and what to prosecute.

In 1969, the US Supreme Court ruled that personal possession of obscene materials could not be prosecuted. The underlying theory behind exempting personal possession was that it intruded too much into the privacy of individuals. Government should not be allowed to make you a criminal for what you view or fantasize with. The Court later said that states could still prosecute transportation and possession for sale of obscene material.

This seemed to put an end to using the idea of fundamental freedom as a means to stop obscenity prosecutions. But then, in 2003, the Supreme Court revisited one of its most controversial opinions of the latter part of the 20th Century, Bowers v. Hardwick, which had upheld against a constitutional challenge a Georgia law making homosexual activity criminal. In the 2003 case, Lawrence v. Texas, the Supreme Court reversed itself stating that Bowers was not correct when it was decided (in 1986), and it is not correct today.

The basis of the Lawrence v. Texas opinion was that a doctrine known as substantive due process precluded government from intruding into people’s private sexual lives. The Court explicitly said that government lacks the power to criminalize private behavior based upon upholding public standards of morality. In dissent, Justice Antonin Scalia stated that the Lawrence opinion would mean the end, among other things, of obscenity prosecutions.

In short order, Scalia’s prediction was put to the test. Application of Lawrence to Extreme Associates after Extreme Associates was indicted, their lawyer H. Louis Sirkin argued that there is a broad fundamental right to sexual privacy, which encompasses a right to possess and view sexually explicit material in the privacy of one's own home even if the material is legally obscene. The government’s justifications for the prosecution rested on protecting children and protecting public morality.

After Lawrence, the government had no legitimate interest in protecting public morality in private matters. Furthermore, since the Extreme Associates website had taken all reasonable steps to prevent minors or unwilling adults from getting access to the materials, no children or unwilling adults had access. Consequently, the trial court agreed with Sirkin and ruled that the government had no legitimate interest in preventing consenting adults from accessing Extreme Associates’ materials.

The Present and The Future

If the trial court ruling were to become the law of the land, retail outlets need never fear an obscenity prosecution - ever!

That assumes of course that the retailers prevent minors and unwilling adults from buying or renting x-rated materials (not a difficult task). So is it possible that the trial court ruling could become the law across America ? Yes! And here is how we get there.

The United States Department of Justice (if you’ll pardon the expression) appealed the trial court’s ruling to the Third Circuit Court of Appeals. The three judge panel randomly assigned to the case was a particularly conservative one, unlikely to agree to strike down the nation’s obscenity laws.

Despite the best efforts of Sirkin, supported by a friend of the court brief by the Association of Club Executives (ACE), the First Amendment Lawyers Association and the Free Speech Coalition (your trade association), the three judge panel overruled the trial court.

This does not end the battle.

Extreme Associates will ask the entire Third Circuit to review the three judge panel’s decision. If they agree to such an en banc hearing, Extreme Associates should have a good chance, because overall the Third Circuit has shown sensitivity to First Amendment issues. If no en banc hearing is granted, Extreme Associates will likely ask the United States Supreme Court to intervene.

Statistically the likelihood of having the Supreme Court agree to grant a hearing is small, but there are reasons for optimism. When the Third Circuit Court of Appeals reversed the trial court ruling dismissing charges against Extreme Associates, the three judge panel refused to address the constitutional issue raised by Sirkin and the trial court. The Court of Appeals panel instead said that neither the trial court nor any Court of Appeals had the power to strike down the obscenity laws based upon the Lawrence ruling. They said that only the Supreme Court could do so.

The fact that they were hostile to the outcome, but could not refute it directly gives one reason for hope.

The procedural argument made by the appellate court is this: The Supreme Court has ruled that only the Supreme Court can overrule itself. Therefore if the Supreme Court has squarely addressed an issue, and later issued an opinion which seems inconsistent with that earlier ruling, only the Supreme Court can say whether or not the old case is overruled or not.

So have earlier Supreme Court cases indeed addressed the privacy/due process issues raised by Louis Sirkin on behalf of Extreme Associates? The simple answer is not really. In the late 1960's and early 1970's the Supreme Court ruled that transportation of obscenity and possession of obscenity for sale could be prosecuted. But then the Court’s definition of privacy was very different than it is now. And in many ways, the due process component of the argument raised by Sirkin following the Lawrence v. Texas case has never been raised before the Supreme Court.

So we have good reason to hope that either the Third Circuit will grant an en banc hearing, and/or the Supreme Court will grant review. If no higher court reverses the third Circuit panel, the case will go back to the trial court for additional very important pre-trial rulings. Because this is the first Federal prosecution of an adult website, and only the second anywhere in the U.S. , there will be many critical rulings before there is ever a trial.

But if, as we hope, there is a final ruling that the Constitution bars obscenity prosecutions for transactions between consenting adults, a dark and dishonest chapter of First Amendment history will come to an end. But equally importantly, retailers will no longer be subjected to the legal extortion racket which law enforcement regularly employs against stores providing adult customers with adult products. No longer will you worry that some cop or prosecutor who needs to get attention will arbitrarily charge you with obscenity counts.

That will be relegated to the ugly history of America’s loyalty oaths, sedition laws and other denials of your fundamental human right to think, view and fantasize as you like, without government punishment.