United States v. Extreme Associates

"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 its 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.

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

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

The movies involved 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 case were covered in the 2004 TV documentary "The Porn King Versus the President".

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 dismissed the charges, agreeing with the defense that the federal anti-obscenity statutes are unconstitutional.

"Courts use one of two tests to assess the constitutionality of statutes that are faces with a substantive due process challenge: the strict scrutiny test or the rational basis test," wrote Judge Lancaster. "Therefore, we must first determine which test should be applied in this case."

"Where the law restricts the exercise of a fundamental right, we apply the strict scrutiny test... Under the strict scrutiny test, a statute withstands a substantive due process challenge only if the state identifies a compelling state interest that is advanced by a statute that is narrowly drawn to serve that interest in the least restrictive way possible... In other words, even if the government has a state interest that rises to the level of being compelling, if there is a less restrictive way to advance it, the statute fails this test."

"Where it is not a fundamental right that is restricted, we apply the rational basis test... Under the rational basis test, a statute withstands a substantive due process challenge if the government identifies a legitimate state interest that the legislature could reasonably conclude was served by the statute... It is not enough under the rational basis test, however, for the government to simply announce some theoretical and noble purpose behind the statute. Rather, the statute must reasonably advance that purpose in order for the statute to survive even this deferential test..."

"Because the ["Lawrence"] case involved two consenting adults engaged in sexual activity in the privacy of their own home and not minors, persons who might be coerced or injured, public conduct, or prostitution, the Court found that no state interest – including promoting a moral code – could justify the law's intrusion into the personal and private life of the individuals involved..."

"In a dissenting opinion joined by Chief Justice Rehnquist and Justice Thomas, Justice Scalia opined that the holding in Lawrence calls into question the constitutionality of the nation's obscenity laws, among many other laws based on the state's desire to establish a 'moral code' of conduct... It is reasonable to assume that these three members of the Court came to this conclusion only after reflection and that the opinion was not merely a result of over-reactive hyperbole by those on the losing side of the argument."

Appeal by the Department of Justice

The Department of Justice, then 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.

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.

Legal aspects and implications

Quotations from the [http://www.ca3.uscourts.gov/opinarch/051555p.pdf 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."

ee also

* Rob Zicari
* Obscenity
* Lawrence v. Texas

External links

* [http://xbiz.com/news_piece.php?id=18286 Judge Grants Extension in Extreme Associates Case]
* [http://www.post-gazette.com/pg/04307/405268.stm Report on November 2004 hearing]
* [http://www.legalaffairs.org/howappealing/ExtremeAssociatesWDPA.pdf Dismissal of "U.S. v. Extreme Associates"]
* [http://www.usdoj.gov/opa/pr/2005/February/05_crm_066.htm Department of Justice announcement of appeal]
* [http://www.freespeechcoalition.com/pdf/extausbr.pdf US prosecutor's brief appealing the ruling to the Third Circuit] - filed April 11, 2005
* [http://www.ca3.uscourts.gov/opinarch/051555p.pdf Ruling of the Court of Appeals] , reinstating the case against Zicari
* [http://www.dazereader.com/extremeassociates.htm Links to several blog comments regarding the affair]
* Interview of Rob Zicari by avninsider.com: [http://www.avninsider.com/stories/lead011204.shtml part 1] , [http://www.avninsider.com/stories/lead021604.shtml part 2]
* [http://www.pbs.org/wgbh/pages/frontline/shows/porn/ American Porn] documentary by PBS Frontline (first aired in 2002, updated in 2004), watchable online.
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