United States V. Extreme Associates - Initial Successful Motion

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.

The defense moved to dismiss the indictments on the grounds that federal obscenity statutes violated the constitutional guarantees of privacy and liberty that were protected by the due process clause. Referencing Lawrence v. Texas and Stanley v. Georgia the defense argued there is a fundamental right to sexual privacy which includes the right to possess and view sexually explicit material in one's own home. The defense argued that this right was not affected by the fact that the material does not have any literary or artistic merit, and that since the federal obscenity laws imposed a complete ban on materials which people have the right to possess, they were unconstitutional.

On January 20, 2005, District Court Judge Gary L. Lancaster dropped the charges, agreeing with the defense that the federal anti-obscenity statutes were unconstitutional, as they violated a person's fundamental right to possess and view whatever they want in the privacy of their own home. As a fundamental right had been violated, the government had to establish that a compelling state interest was involved. The prosecution argued that the government had a legitimate interest in protecting adults from unwitting exposure to obscenity, and protecting children from exposure to obscenity. These arguments were rejected by the court, which also ruled that the federal obscenity laws were not narrow enough to meet these interests, and could not justify a complete ban on obscene material. Lancaster ruled that children and unwitting adults are protected from the content because the website requires a credit card to join, and because software is available by which parents can restrict children's access to Internet pornography. The court did agree with the government that Lawrence had not created a new broad fundamental right to engage in any private sexual conduct. Instead the court relied on Stanley, which had established there was a fundamental right to private possession of obscene material. The court did rely on Lawrence for its assertion that the government could not use public morality as a legitimate state interest which justified the infringement of consensual, adult, private sexual conduct. The court also made reference to the dissenting opinion of Justice Scalia, who said that Lawrence had questioned the validity of U.S. obscenity laws, since the government could not enforce a moral code of conduct. Judge Lancaster also cited numerous constitutional scholars who had observed that the Lawrence ruling calls federal obscenity laws into question.

"Courts use one of two tests to assess the constitutionality of statutes that are faced 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 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."