What You Need to Know About the Extreme Associates Case
By: Mark Kernes
Brief Highlights of extensive article January 2005

Regarding the reversal of prior Bowers case idea now totally challenged by Lawrence vs Texas per Judge Lancaster in the Extreme Associates (Associates) Case.:

A long discussion of many obscenity cases that convicted people based on prior landmark Bowers case that says that morality and compelling State interest is a valid reason to deny individual freedoms... "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's (Extreme Associates) decision..."

But now in the Extreme Associates case win based on Lawrence v Texas:
So now we have a decision recognizing Lawrence v. Texas, so we're moving to reargue, and will point out to the Court that we now have several conflicting decisions, one of which is a positive one. The Supreme Court can have a total short-circuit of all the Circuits and address this issue right now if they accept cert on our (Extreme Associates) case.

Several sections of Judge Lancaster's memorandum on the Extreme Associates case opinion are worth quoting.
"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." [Citations omitted here and below.]

"Here's the situation," explained Chicago-based First Amendment attorney Reed Lee, a member of the board of the Free Speech Coalition. ... skipping a lot of legal details regarding obscenity cases ...."This recent opinion... is a rule that among consenting adults, the government has no business interfering with sexually-oriented expression.

Government's free to regulate what's exposed to children, and the government is free to say that this is not the sort of thing that you should impose on your unwilling neighbors, even adult neighbors. So obscenity law then becomes a question of what the community accepts as part of the open expression that everybody's exposed to, as opposed to what the community tolerates other people in the community, other individuals, seeing or hearing."

The strict scrutiny test would force the government to show a lack of community toleration; the rational basis test, which is the government's position as to the current state of the law, would (supposedly) gauge actual community acceptance a more difficult burden for the defense.

But the Lawrence case had virtually no First Amendment/free speech implications; it was all about private sexual conduct, and the Supreme Court found that the government had no business sticking its police-power nose into consenting adults' bedrooms because, the majority found, the government has no business legislating the moral attitudes of its citizens. The Court similarly denied the government that power, in Stanley v. Georgia, even for material ruled obscene by courts at all levels: Citizens can possess admittedly obscene material child pornography excluded in the privacy of their own homes.

"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," wrote Justice William O. Douglas in Griswold, referring to a number of privacy rights cases previously decided. The instant case suggests that the right to buy sexual, even obscene, material for private use is one of those "emanations."

Judge Lancaster relied heavily on Lawrence v. Texas for his authority, and used it to clearly mark the limits of his decision:

"Because the 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."

But perhaps more importantly, Judge Lancaster continued with:

"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."

In fact, Justice Scalia's words were, ..lots deleted..." .... State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding."

It's always dicey for a federal district judge to quote from the dissenters in a Supreme Court decision, but in this case, it is apparently the opinion of three of the high court's most conservative members that the Lawrence decision "calls into question ... laws based on moral choices." However, it remains to be seen, possibly in a Supreme Court review of this very case, whether those in the majority of the Lawrence decision actually accept that characterization.

Referring back to the Extreme Associates casse... "Basically, the government has nowhere to go from there. Keeping obscenity away from children and out of the view of adults who haven't consented to see it are, arguably, legitimate state interests. However, those interests can easily be accomplished by means well short of a complete ban on the material and Judge Lancaster devotes several pages to saying so."

Full article: http://www.avn.com/index.php?Primary_Navigation=Articles&Action=View_Article&Content_ID=214385

A Lawrence vs. Texas based case on PRIVACY RIGHTS WINNER !
Extreme Associates Case Dismissed; Obscenity Laws Ruled Unconstitutional...

CHATSWORTH, Calif. - In a decision that is bound to have enormous impact on the adult entertainment industry, obscenity charges against producer Rob Black and his wife Lizzy Borden of Extreme Associates were thrown out of court today by a federal judge in Pittsburgh.

"I'm still speechless," Black told AVN.com. "All ten counts against us were dismissed." He said that U.S. District Court Judge Gary Lancaster made the dismissal on the grounds that obscenity laws are unconstitutional.

"We find that the federal obscenity statutes place a burden on the exercise of the fundamental rights of liberty, privacy and speech," wrote Judge Lancaster in his opinion.

The Extreme Associates' case was the first federal obscenity prosecution against a video manufacturer in over a decade. Internet attorney Lawrence G. Walters, a partner in the firm of Weston, Garrou & DeWitt, called the decision "a tremendous victory for Rob Black, for the adult industry, and for the First Amendment."

He told AVN.com that the judge based his decision on the Supreme Court's Lawrence v. Texas ruling last year, which struck down a Texas sodomy statute. Before that, the government had been able to show it had a "compelling interest" in restricting sexual activities. But Lawrence v. Texas said in effect that the government can no longer use "compelling interest" as a rationale for suppressing what adults many do in private. The Black ruling extends this concept to adult entertainment. In effect, Walters said, "you should be able to see what you're able to do."

Quoting, once again, from Judge Lancaster's opinion: "After Lawrence, the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd or lascivious thoughts, as a legitimate, let alone a compelling state interest."

Walters cautioned that since the case ended in a dismissal, not an acquittal, the government will likely appeal. "You can't count your chickens too soon," he said. "But we must have faith that the appellate courts will do the right thing."

Well-known First Amendment attorney Paul Cambria told AVN.com, "This is a case I referred to Lou Sirkin." He compared it to his own successful fight on behalf of Al Goldstein in the 1970s. Then, he said, the government chose not to appeal, stating that by appealing it elevates the case to a higher level, which means that it will have a broader scope.

This means, he said, that if it is appealed all the way to the Supreme Court, the only aspect of X-rated films that will be illegal will be child porn.

Source: avn.com

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