United States v. Extreme Associates

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United States v. Extreme Associates is a 2005 U.S. law case revolving around issues of obscenity. Extreme Associates, a pornography company owned by Rob Zicari and his wife Lizzy Borden, was prosecuted by the federal government for alleged distribution of obscenity across statelines. In defense, the company argued that since their customers had the legal right to receive such material, a right to distribute must also exist. They argued this on the basis of Lawrence v. Texas as a substantive due process case.

The lower court agreed with this reasoning and ruled that U.S. obscenity law was unconstitutional, though this was overturned on appeal in December 2005.

1 Leading up to the indictment
2 Initial successful motion
3 Appeal by the Department of Justice
4 New Trial
5 Legal aspects and implications
6 See also
7 External links

[edit] Leading up to the indictment

The filming of Lizzy Borden's movie Forced Entry, which included several simulated rapes, was covered in the PBS Frontline documentary American Porn (2002); the makers of the documentary were repulsed and walked off the set. Zicari was interviewed in the documentary and challenged Attorney General John Ashcroft. These scenes possibly led to the subsequent undercover operation by federal authorities.

In April 2003, the premises of Extreme Associates were raided by federal agents. Zicari, his wife and his company were indicted for distributing obscene pornographic materials.

Extreme Associates is based in Northridge near Los Angeles, but the indictment was brought in Pittsburgh, from where under-cover federal agents had ordered the offending materials.

The involved movies are

Extreme Teen 24: contains a scene of a naive 'pre-teen' being talked into having sex by an adult man
Cocktails 2: various scenes of women drinking vomit and other bodily fluids
Ass Clowns 3: a female journalist is being raped by a gang led by Osama bin Laden; the journalist is freed and the gang members killed. The director's cut version also contains a scene where Jesus steps off the cross and has sex with an angel.
1001 Ways to Eat My Jizz
Forced Entry: the story of a serial rapist and killer who eventually gets killed by a mob

The early developments in the cased were covered in the 2004 TV documentary The Porn King Versus the President.

[edit] Initial successful motion

During a hearing in November 2004, Zicari's lawyer H. Louis Sirkin argued that the right to privacy, recently confirmed and strengthened in Lawrence v. Texas, gave individuals the constitutional right to view offending materials in private, a right which cannot be meaningfully exercised without a corresponding right of companies to distribute such materials. The prosecution countered that an individual's right to privacy is unrelated to a company's right to commercial distribution.

On January 20, 2005, the District Court judge dropped the charges, agreeing with the defense that the Federal anti-obscenity statutes are unconstitutional.

[edit] Appeal by the Department of Justice

The Department of Justice (now headed by Alberto Gonzales) announced on February 16, 2005 that it would appeal the ruling. That appeal was filed with the Third Circuit Court of Appeals on April 11, 2005, argued on October 19, 2005, and decided on December 8, 2005.

The appeals court reversed the lower court and reinstated the suit against Zicari and Romano, ruling that the lower court had erred in setting aside the federal obscenity statutes, which had been repeatedly upheld in Supreme Court decisions. The appeals court pointed to previous Supreme Court opinions stating that the right to decide whether a subsequent Supreme Court ruling invalidates an earlier one belongs to the Supreme Court alone, not to a lower court.

The ruling concluded, "we have declined to equate the privacy of the home ... with a 'zone of privacy' that follows a distributor or a consumer of obscene materials wherever he goes," and concluded that precedent had not in fact been overturned by the Lawrence ruling, and the trial judge had erred in law to state they had. Only the Supreme Court could say if their own prior decisions had been overturned, and they had reserved that right to themselves in past cases.

The couple's attorney subsequently filed a petition asking the U.S. Supreme Court to hear the case. The petition, however, was denied.

[edit] New Trial

Following the Supreme Court's denial of the petition, the case was sent back to the district court. No trial date has been set, but pretrial motions are scheduled to continue through June 1, 2007.

[edit] Legal aspects and implications

Quotations from the appellate ruling:

[...] the Supreme Court explicitly admonished lower courts that "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions [...] even as the Court in Agostini concluded that its own adherence to the old precedent "would undoubtedly work a 'manifest injustice'" in light of later decisions, it emphasized that "the trial court acted within its discretion in entertaining the motion [requesting relief under the newer cases] with supporting allegations, but it was also correct to recognize that the motion had to be denied unless and until this [Supreme] Court reinterpreted the binding precedent."
"[The] right to receive is not a right to the existence of modes of distribution of obscenity, which the State could destroy without serious risk of infringing on the privacy of a man's thoughts; rather, it is a right to a protective zone ensuring the freedom of a man’s inner life..."
"In Orito, for example, the defendant was prosecuted under § 1462 for privately transporting obscene material in interstate commerce (to wit, knowingly carrying obscene materials in his private luggage on a domestic commercial flight). Orito "moved to dismiss the indictment on the ground that the statute violated both his First and Ninth Amendment rights." ... In dismissing the indictment, the Supreme Court explained that the District Court had misinterpreted not only Stanley, but also Griswold to establish constitutional protection for the non-public transportation of obscene material ... we have declined to equate the privacy of the home relied on in Stanley with a 'zone of privacy' that follows a distributor or a consumer of obscene materials wherever he goes."
"We conclude that the Supreme Court has analyzed and upheld the federal statutes regulating the distribution of obscenity under the constitutional right to privacy embodied collectively in the First, Ninth, and Fourteenth (thus also the Fifth) Amendments, as well as the Griswold line of decisions that the District Court asserted should control this case. The fact that such analysis has never been applied within the precise scenario outlined by the District Court – i.e., use of the talismanic phrase "substantive due process" in the context of a vendor proceeding under derivative standing on behalf of a consumer’s right to privately possess obscene material – does not negate the binding precedential value of the Supreme Court cases employing that analysis. The Court’s analysis need not be so specific in order to limit a district court’s prerogative to overturn an entire category of federal statutes, even as applied to particular defendants, based on speculation about a later decision that fails even to mention those statutes. The Court has considered the federal statutes regulating the distribution of obscenity in the context of the broader constitutional right to privacy and upheld them. That such analysis was conducted absent its constitutional brand name does not negate its precedential value."
"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."