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