Extreme Associates Dismissal
As anyone who has followed this journal for any time can imagine, I'm delighted by the ruling of the District Court in United States v. Extreme Associates--the obscenity prosecution in which Extreme Associates, ably represented by Louis Sirkin, moved to dismiss the indictment on the theory that the obscenity laws could not be constitutionally applied to prevent individuals from obtaining materials for their own perusal at home. Judge Gary Lancaster, of the Western District of Pennsylvania, found this argument persuasive, and dismissed the criminal indictment against Robert Zicari, Janet Romano (a/k/a Lizzie Borden) and essentially found the obscenity doctrine unconstitutional.

OK, here's how:

1. In Stanley v. Georgia, 394 U.S. 597 (1969), the Supreme Court in an opinion by Justice Thurgood Marshall, found that the obscenity doctrine could not constitutionally reach into an individual's private library, and convict him or her for owning banned materials. (This opinion does not extend to child pornography, of course, because the material is itself the record of a crime, and a purchaser has aided and abetted said crime).

2. In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court struck down as unconstitutional state laws purporting to ban homosexual sodomy on the theory that (1) such statutes treated homosexuals as inferior to heterosexuals, whose sodomy was not barred; and (2) interfered with the private relations of free citizens in the name of a non-universal moral judgment.

Judge Lancaster used both decisions to ground his argument. He found Stanley's right to possess obscene materials was burdened by the federal statutes prohibiting distribution of such materials. (after all, if you can't get the books/tapes/videos, how do you have them in your library?) Further, he found that the right to possess such materials required a compelling state interest to be so burdened, and found that the moral basis of obscenity law cannot, under Lawrence, justify the burden. After all, Judge Lancaster reasoned, if the sexual conduct of individuals cannot be regulated on the basis of morals, how can their reading about such conduct be? The right to privacy embodied in the Fifth Amendment would protect both.

So Extreme Associates is not a First Amendment decision, despite the fact that speech is at issue. (Judge Lancaster's opinion can be found here:
http://www.adultinternetlaw.com/Cases/extreme.associates.f16a863.pdf
Thanks to Alanesq for alerting me to this early publication of the decision).

Truthfully, the decision is a great result, although Judge Lancaster dances around a 50-year long string of badly reasoned First Amendment decisions (all predicated on the idea that obscene materials are not speech because they lack serious value, a test much plainly protected speech could not meet, such as the works of Agatha Christie or Stephen King). His end-run around the Supreme Court's decisions is the sort of opinion that appellate courts tend to reverse.

And yet--he's plainly right. The Supreme Court has been wrong on the obscenity question since 1942, when it decided Chaplinsky v. New Hampshire, 315 U.S. 568. In that case, the Court found that several categories of speech lacked value, and thus were not "speech" as defined in the First Amendment; thus they could be banned outright. Every obscenity decision since that time has just assumed the power to regulate obscenity, focusing on the problem of defining it. This is a problem, because several of the other "Chaplinsky Categories" have been found to be entitled to First Amendment protection. (Far more detail in my First Amendment, First Principles (2004) at 72-121)

So why not obscenity?--er, well, because the judges don't like it. Worse, since 1973, obscene material is only protected if it has "serious literary, artistic, political, or scientific social value." Miller v. California, 413 U.S. 15 (1973). So material with some social value may be banned on the theory that it doesn't have enough to suit a majority of the Supreme Court, all under a constitutional text that says only that "Congress shall make no law...abridging the freedom of speech," not that it may make reasonable laws regulating unimportant speech.

Moreover, obscenity law chooses a side in the war of ideas--defending old fashioned propriety against libertinism, or pro-sex viewpoints. That advantaging one side of an ongoing social debate violates the very core of the First Amendment--the requirement that laws be viewpoint neutral. In other areas of so called "low value speech," such as "fighting words," the Court has held that restrictions must be viewpoint neutral. See RAV v. City of St. Paul, 505 U.S. 377, 382-383 (1992). But again, in obscenity, that rule does not apply, with the only reason set forth is that "traditionally" obscenity law is an exception to free speech. (The Court in obscenity cases is a little like Tevye asserting "Tradition!" when all other arguments fail.) But tradition is not enough; as Justice Holmes pungently put it "it is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV." (Holmes, "The Path of the Law" in Collected Legal Papers (1921) at p. 187).

All well and good; but will the Court of Appeals (to say nothing of the Supreme Court) approve Judge Lancaster's daring in undermining these decades of settled authority? Stay tuned....