United States V. Extreme Associates - Appeal By The Department of Justice

Appeal By The Department of Justice

The Department of Justice, then headed by Alberto Gonzales, announced on February 16, 2005, that it would appeal the ruling. That appeal was filed with the Third Circuit Court of Appeals on April 11, 2005, argued on October 19, 2005, and decided on December 8, 2005.

The appeals court reversed the lower court and reinstated the suit against Zicari and Romano, ruling that the lower court had erred in setting aside the federal obscenity statutes, which had been repeatedly upheld in Supreme Court decisions. The appeals court pointed to previous Supreme Court opinions stating that the right to decide whether a subsequent Supreme Court ruling invalidates an earlier one belongs to the Supreme Court alone, not to a lower court.

The ruling concluded, "we have declined to equate the privacy of the home ... with a 'zone of privacy' that follows a distributor or a consumer of obscene materials wherever he goes," and concluded that precedent had not in fact been overturned by the Lawrence ruling, and the trial judge had erred in law to state they had. Only the Supreme Court could say if their own prior decisions had been overturned, and they had reserved that right to themselves in past cases.

Furthermore, with regards to whether or not the fact of the Internet delivery made the community standards test inapplicable, the ruling argued, "The mere fact, without more, that the instant prosecution involves Internet transmissions is not enough to render an entire line of Supreme Court decisions inapplicable given their analytical and other factual similarities to this case."

The couple's attorney subsequently filed a petition asking the U.S. Supreme Court to hear the case. The petition, however, was denied.