Using the Extreme Associates Arguments Against Private Sexwork Laws

Update on Extreme Associates win by Federal Judge dismissing case based on Lawrence vs Texas.

This is a huge win at least temporarily by the porn industry. But unless the case eventually makes it to the Supreme Court, which Federal Appeals judge in what District hears other cases, the outcome could be very different. Remember all the conservative Bush appointments of Federal judges which are continuing.

If we don't get a new conservative Supreme Court the arguments seem very good for private sexwork. I believe we should educate the public and grab the opportunity.

But as quoted in the linked article below, "This decision binds no other court and it is very, very possible that other judges in other jurisdictions will disagree as the issue comes before them," wrote J.D. Obenberger, a Chicago-based First Amendment attorney. "You can count on the proposition that a motion similar to that granted here will be filed and argued in every obscenity case in which the defendant is represented by capable First Amendment lawyers."

While my main interest isn't porn cases but the extension of the rational expressed in the Lawrence vs Texas Supreme Court case and now the Extreme Associates case to private consenting adult sexwork, this decision at least supports many of the arguments expressed by First Amendment Lawyers meeting I attended where their conclusion was that it is very possible the arguments of Lawrence could eventually overturn private consenting adult prostitution laws, especially outcall in one's private bedroom. This right to private (at least outcall) sexwork is enjoyed in Canada and most of the world except the U.S. with no detrimental social issues.

Judge Lancaster, the judge in the Extreme Associates case used the Lawrence case to dismiss the charges. Per Lawrence vs Texas (by only a 5-4 decision) no longer is morality a basis for law. The remaining key issue is whether or not there is a compelling State interest to restrict private consenting adult sexual rights.

The big question in the sexwork area is can't the same arguments be made for private consenting adult sexwork?

If morality is not a legitimate basis for the law, that leaves a compelling State interest. But even if there is a compelling interest to be constitutional the law has to restrict with the least restrictive means to ensure the State's interest. We argue we should have the right to private sexual freedom and the "pursuit of happiness" as guaranteed in the Bill of Rights.

When in Canada, England, Australia, even Israel, New Zealand and virtually all the world except the U.S., outcall prostitution is 100% legal with no big social problems (trafficking and child sex is separate issue and should and is illegal) it would seem there is a huge argument there is no U.S. compelling interest to outlaw consenting adult private sexwork.

In most of the rest of the world, there are restrictions on incalls or brothels. This makes some sense to have to comply with zoning restrictions etc. In England you can only have one girl per flat but arguments are being made make the law less restrictive. In Canada technically incalls are illegal (1850's bawdy house law) but it is seldom enforced. In Canada and most of the world there is no law against "prostitution" itself, only incalls and of course public nuisance street hookers (unless is special zones) as well as child and forced prostitution are outlawed in most all the world,

But what is the compelling government issue unique to the U.S. vs all the world to make consenting adult outcall illegal? In fact I would argue it is healthy, REDUCES STD and HIV risk by going to a sexwork professional and provides a benefit to the culture in reducing sexual harassment and violence from unsatisfied sexual desires as other studies have shown this result in other cultures.

Good comments by Stevi Secret
Extreme Associates & Politics!

Unfortunately in the recent election, we failed in our task of convincing enough people that removing George Bush from office was essential in protecting the rights of adult's to engage in private sexual activities, watch porn and so forth. In reading all the posts we've had concerning Extreme Associates, it is obvious that the whole issue of adult rights will be decided in the courtrooms and that who is appointing federal judges is a crucial issue to adults. Lawrence v Texas has given us a tremendous tool. Now the problem. Much of the legal logic of that decision is based on Roe V Wade. It is quite clear that in any appointments Bush makes to the federal judiciary (and the supreme court) will be filled by judges intent on overturning Roe V Wade which could in turn topple the legal wall of adult rights we are building. To say you could vote for Bush and support porn etc is laughable but that is water over the dam. If you were on that side of the fence its not too late to join us in opposing the fundamentalist religious judges Bush is sure to appoint in the cumming 4 years.

FYI, the brilliant and brave Judge Gary Lancaster who has already been castigated by the right as being an out of the mainstream "activist judge" was appointed to the federal courts by President Clinton.
Stevi Secret

Update 3/17/05

Talking Points about Privacy and First Amendment Issues
Apply to legal arguments for both adult films and all private adult sexual activity, including sexwork
Excerpts from AVN report
Obscenity Laws, the Reactionary Right and the Adult Community

Louis Sirkin, Esq, who successfully defended Extreme Associates recently said: was important to analyze what was really said in the Stanley v. Georgia cases where an individual was deemed to have the right to privacy in their own home, as it didn't affect those in his community, or in commerce or have anything to do with a moral code. Sirkin went on to illustrate the successful arguments of Roe v. Wade (which found that substantive due process went outside the realm of privacy in one's home) and, most importantly, Lawrence v. Texas (where the Supreme Court decision to recognize personal liberty as a "Do Not Enter" sign for the moral code of anyone, government included).

He went on to state that citizens have a right to choose what to watch, and when to watch it and the government's only compelling interest is to enforce a moral code which, in turn, would stand to keep this material from the hands of non-consenting adults.

Sirkin's argument referenced the popularity and acceptance of Viagra as a safe and approved form of sexual arousal. He added that Judge Lancaster commented to the journalists in his courtroom that it's not enough to allow people to have the right to read and that journalists thereby have the right to write to that audience but that there should be a law protecting the production and sale of the ink to print the words to read. Judge Lancaster, the judge in the Extreme Associates case used the Lawrence case to dismiss the charges. Per Lawrence vs Texas (by only a 5-4 decision) no longer is morality a basis for law. The remaining key issue is whether or not there is a compelling State interest to restrict private consenting adult sexual rights.

According to Sirkin, Lancaster, in his discussions in court, also referenced that the government is now aware that the individual moral thoughts can't be determined to a higher level. He even quoted conservative Supreme Court Justice Anton Scalia's comments in Lawrence v Texas where the jurist brought to light arguments about gambling and prostitution as well.

In a mock debate, in opposition, John Mitchell, Esq., a public policy lawyer from Washington, D.C. discussed the right to protect minors from obscenity, citing that prostitution, gambling and maybe even suicide would be allowed in this current mindset.

Sirkin's responses to the rights of privacy question were simple. If a student now has the right to read the Communist manifesto, then they must be allowed to study it at home. He went on to say that it's the parents responsibility to protect their children, not the government's job, adding that the issue is about privacy, not morality and that even Scalia in the Lawrence case stated that "morality is not a compelling governmental interest."

Sirkin was quick to point out that the Web is just another form of a retail store and people make their own personal choice to stop in or purchase material. Mitchell argued that the real estate is supported by tax dollars and that citizens must take the responsibility for what people are exposed to in this country.

As the evening ended, First Amendment attorney Jeffrey Douglas praised Sirkin for not only convincing Judge Lancaster that his opinion was right, and commented that the Judge himself felt enlightened and empowered by the knowledge that he had protected an individual's right to privacy.

Sirkin remained optimistic to the very end of the evening, responding that in spite of the government appeal in the Extreme case, "It's nice to win the first round."

Back to the Sexwork Main Menu