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
3-17-2005
Louis Sirkin, Esq, who successfully defended Extreme Associates recently said:
...it 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."
avn.com
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