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Extreme Associates Petitions The U.S. Supreme Court
By: Mark Kernes (Courtesy of
Posted: 4/17/2006

CINCINNATI – After months of preparation, the Petition for Writ of Certiorari of Extreme Associates, Rob Black and Lizzy Borden has been completed and is on its way to the clerk of the United States Supreme Court – the defendants’ last stop before either being absolved of all charges by the land’s highest court, or before their being forced to stand trial in U.S. District Court on several counts of trafficking obscenity. The petition, authored by attorneys H. Louis Sirkin and Jennifer M. Kinsley, ask the Supremes to rule on three questions:

"1) Whether the federal obscenity statutes, as applied to the distribution of obscenity in private areas of the Internet, violate the individual right to privately access and view obscene materials?"

"2) Whether the Court’s previous determinations that the right to privately possess obscenity generates no corollary right to distribute obscenity are valid in light of the Court’s emerging understanding of privacy and the advent of the Internet?"


"3) Whether Lawrence v. Texas … eliminates Congress’ ability to criminalize the distribution of obscenity in private areas of the Internet based solely upon concerns for public morality?"

The questions may sound simple, but they’ve all been a long time in coming. They began with U.S. District Judge Gary Lancaster’s excellent decision dismissing all charges against the defendants through a combination of Supreme Court rulings from Lawrence v. Texas, the case that overturned the 20-year-old Bowers v. Hardwick‘s criminalization of consensual adult sodomy; the First Amendment’s freedom of speech clause; and the Fourteenth Amendment’s guarantee of substantive due process privacy rights embodied in, among other decisions, Roe v. Wade and Griswold v. Connecticut.

That decision was overturned last December by a three-judge appeals court panel, which the entire Third Circuit then declined to review in an en banc proceeding, so the U.S. Supreme Court was the next stop.

Of course, the Supreme Court is not required to accept all (or any) of the cases that petition it, and many cases are rejected on the basis that the points upon which they ask for adjudication are not yet "ripe"; that is, the issues have not been dealt with sufficiently in the lower courts.

One point that may work in Extreme’s favor is the fact that the appeals court did not deal with the substance of Lancaster’s dismissal, but rather reinstated the charges on the procedural ground that Judge Lancaster had been a bit too creative in his analysis of the applicable law and previous Supreme Court decisions.

"In its Memorandum, the District Court notes briefly, but never directly addresses, the Government’s contention that ‘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 unconstitutional’," wrote Judge D. Brooks Smith, chair of the appeals panel. "The Government’s brief on appeal raises the same issue by asserting, essentially, that the District Court erred by granting relief which effectively overturns applicable Supreme Court precedents on the ground that those precedents have been undermined or implicitly overruled by a subsequent Supreme Court decision. We agree with the Government that the District Court was in error, and we conclude that the District Court’s violation of the principle articulated below requires reversal."

However, the appeals court specifically did not rule on the merits of Judge Lancaster’s decision.

"We are satisfied that the Supreme Court has decided that the federal statutes regulating the distribution of obscenity do not violate any constitutional right to privacy," the appeals opinion concluded. "For district and appellate courts in our judicial system, such a determination dictates the result in analogous cases unless and until the Supreme Court expressly overrules the substance of its decision. Lawrence v. Texas represents no such definitive step by the Court. It was therefore impermissible for the District Court to strike down the statutes at issue based on speculation that Orito and other pivotal obscenity cases ‘appear[] to rest on reasons rejected in’ Lawrence. Even if there were analytical merit to such speculation, an issue on which we do not opine, the constraint on lower courts remains the same. The possibility that Lawrence has ‘somehow weakened the precedential value of’ the Reidel line of cases is irrelevant for purposes of ruling on the instant indictment." [Emphasis added]

In other words, Judge Lancaster’s careful analysis of the law remains in play, though the Sirkin/Kinsley petition approaches that topic carefully, starting with an explanation of why obscenity law has been significantly changed due to the advent of the Internet.

"The regulation of the Internet poses unique challenges for lawmakers," the petition states. "As this Court has observed, ‘differences in the characteristics of new media justify differences in the [constitutional] standards applied to them.’ Of particular concern is the fact that website content-providers cannot typically control the geographic location of the information’s recipients and cannot entirely ensure the age of those who view their webpages. These peculiarities generate the often intolerable possibility that laws intended to protect children or sensitive adults from being exposed to unwanted material online will have the unintended effect of chilling the speech that is available to consenting adult Internet users." [Citations omitted here and below]

That’s a point with which the Supreme Court has already agreed, in Ashcroft v. Free Speech Coalition, where it stated that "speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it."

But the question that begs to be asked is, how can the government go in suppressing Internet speech once it has been assured that neither children nor unwary adults are likely to see such material?

"In this regard," the petition states, "the Internet triggers potentially competing constitutional protections: the First Amendment, which protects and values free expression, and substantive due process, which shields private decision-making from government intervention," and then baits the Court with, "Extreme Associates’ case presents the unique convergence of both these interests and therefore offers the Court a rare opportunity to address the contours of constitutional protection afforded to online transactions."

The petition explains the bases of Judge Lancaster’s ruling, including the finding that the obscenity laws as applied to the Internet should be subject to strict scrutiny, and noting that the decision in Lawrence precludes using "morality" as a basis for such laws. It also notes the appeals court’s refusal to say that Judge Lancaster’s arguments lack validity.

The petition then goes on to state various reasons why the Supreme Court should accept Extreme’s petition. For one thing, the high court has not precisely addressed the extent to which Internet transactions (such as accessing an adult pay site) implicate the right of privacy, though it has touched on those issues in the Communications Decency Act, COPA and CPPA cases – and invalidated portions of all of those laws. Moreover, the Extreme prosecution could expose ‘Net consumers to a variety of privacy rights violations.

Perhaps most important, however, is the defendants’ argument that "As even the court of appeals conceded, however, none of these [previously-cited obscenity] cases specifically discussed the application of substantive due process protection to the exchange of obscenity," noting that "the majority opinions in each case focused on whether there exists a corollary right to distribute obscene materials, and not whether a ban on such activities violates the personal right of possession… Indeed, given that the cases relied upon by the Third Circuit are more than thirty years old, and in light of society’s changing and evolving views on privacy, the time has come for the Court to readdress the constitutional protections afforded to those who privately provide obscene materials."

The petition then goes on to examine flaws in such early obscenity decisions such as United States v. Reidel, United States v. Orito, and Paris Adult Theatre v. Slaton in light of later decisions as far-ranging as Buckley v. Valeo (regarding limitations on political campaign speech), United States v. Playboy Entertainment Group (regarding "signal bleed" from cable TV programs), and Lawrence, which affirmed individuals’ rights of privacy in the bedroom.

"[T]he Court’s decision in Lawrence at least raises the specter that morality is no longer a compelling – or perhaps even a legitimate – government interest when Congress seeks to regulate private matters," the petition states. "While the opinion in Lawrence does not disclose whether the Court viewed the right of sexual intimacy as a fundamental right entitled to strict scrutiny, or merely a basic right triggering rational basis review, the Court was clear that the morality justification raised by the state was insufficient to override the constitutional protection afforded to private sexual behavior. This conclusion fundamentally alters the morality rationale that was outcome-determinative in Paris Adult Theatre. There, the Court relied heavily upon the government’s interest in preserving ‘the quality of life and the total community environment’ and in maintaining a ‘decent society’ to justify obscenity citations against a public theater … After Lawrence, the continuing validity of this moralistic justification for obscenity prosecutions is in doubt."

Then Sirkin and Kinsley get to the heart of the matter.

"In light of these developments, obscenity remains the one area where the Court has acknowledged a privacy interest, but refuses to recognize that an absolute ban on distribution impedes that interest," the petition states. "… In no other sphere save obscenity does the dichotomy exist where it is lawful to possess, but not to obtain, the material in dispute."

In other words, how effective is the right of Robert Eli Stanley to possess obscene material in his home in Georgia (or anywhere) if he has no concomitant right to buy it?

Toward the end of the petition, the attorneys assure the Court that, "extreme Associates is not asking the Court to declare the federal obscenity statutes completely invalid in the context of the Internet, although there may be substantial justification for doing so. Instead, Extreme Associates is asking the Court to recognize that certain components of the Internet, like a ‘members only’ website viewed with a personal computer, implicate identical privacy concerns to those that adhere when two individuals engage in intimate conduct in their bedroom."

And that’s pretty much the long and short of it. Now, after the government has a chance to respond, the long wait for a high court decision on the petition begins.


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