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An Extreme Appeal

By Jeffrey Douglas

Posted: September 26, 2005

For the first time in generations, there is a realistic possibility that there will be an end to obscenity prosecutions in this country.

Pending before the 3rd U.S. Circuit Court of Appeals is the government’s appeal of the dismissal of the federal obscenity indictment against Extreme Associates. The government appealed to the 3rd Circuit, and oral arguments will occur in October. The basis for Judge Gary L. Lancaster’s Jan. 20 ruling, which dismissed all 10 criminal obscenity-related charges against Rob Zicari (aka Rob Black) on constitutional grounds, is fascinating and well worth reflection and study.

The Supreme Court held in Lawrence vs. Texas that states have no power to criminalize consensual, private sexual (homosexual) conduct. By doing so, the court overruled one of the great embarrassments of the century, Bowers vs. Hardwick, which had upheld a Georgia law barring homosexual sex. In dissent on Lawrence, Supreme Court Justice Antonin Scalia predicted that lifting this bar would cause the end of the world, specifically listing among his “parade of horribles” the end of obscenity laws.

Following the federal indictment of Extreme Associates, H. Louis Sirkin moved to dismiss charges based upon the ruling in Lawrence. He argued, in brief, that the government does not have the power to control even obscene images when only consenting adults choose to view or purchase them. The Extreme website required several steps, including subscription fees, before viewing the charged imagery. No unwilling viewers could accidentally be exposed and minors were as restricted as possible.

The government could not offer any justification for the law other than protecting morality, protecting minors and protecting unwilling adults. The problem with that argument is that the Lawrence decision held that protecting morality was invalid, and in the Extreme Associates situation, it was unrealistic that minors or unwilling adults could be exposed. Lancaster agreed with Sirkin and ruled that, as applied to these facts, the obscenity law was unconstitutional.