Justice Dept. Fights Ruling on Obscenity

WASHINGTON, Feb. 16 - In a case representing a major test of the Bush administration's campaign against pornography, the Justice Department said Wednesday that it would appeal a recent decision by a federal judge that declared federal obscenity laws unconstitutional.

The Justice Department said that if the judge's interpretation of federal law was upheld, it would undermine not only anti-obscenity prohibitions, but also laws against prostitution, bigamy, bestiality and others "based on shared views of public morality."

In a ruling last month in Pittsburgh, Judge Gary L. Lancaster of Federal District Court threw out a 10-count criminal indictment that charged a California video distributor, Extreme Associates, and the husband-and-wife team that owns it with violating federal obscenity laws. The company boasts of the particularly graphic content of its movies, with scenes of simulated gang rapes and other attacks on women, and its Web site declares, "See why the U.S. government is after us!"

While all sides agreed that the movies could be considered legally obscene, Judge Lancaster found that federal laws banning obscenity were unconstitutional as applied broadly to pornography distributors like Extreme Associates. The anti-obscenity laws "burden an individual's fundamental right to possess, read, observe and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials," the judge wrote in a 45-page opinion.

The closely watched decision was a boon to the multibillion-dollar pornography industry, which has been fighting efforts by the Bush administration to crack down on what the government considers obscene material, particularly on the Internet.

Attorney General Alberto R. Gonzales and his predecessor, John Ashcroft, declared the prosecution of pornography and child exploitation cases to be a high priority, and the Justice Department committed more lawyers and money to the issue in securing 38 convictions since 2001 in obscenity cases, officials said.

Mr. Gonzales, in announcing on Wednesday that the Justice Department would appeal Judge Lancaster's ruling to the United States Court of Appeals for the Third Circuit, in Philadelphia, said the department "places a premium on the First Amendment right to free speech, but certain activities do not fall within those protections, such as selling or distributing obscene materials."

Louis Sirkin, a Cincinnati lawyer representing the pornography distributor, said he believed the judge's opinion would be upheld.

"You can't legislate morality," Mr. Sirkin said. "You have to let people make their own personal decisions, and that's the important principle at stake in this case."

At issue are five hard-core pornographic movies that were sold and distributed by Extreme Associates, including several that were bought through the company's Web site by an undercover postal inspector in Pittsburgh. Federal and local law enforcement agents executed a search warrant and seized material from the company's Southern California office in 2003. The company as well as its owners, Robert Zicari and his wife, Janet Romano, who also goes by the name Lizzie Borden, were charged with violating federal obscenity laws.

Justice Department officials acknowledge that federal courts have given people the protection to view obscene material in their own homes, but they say that protection does not extend to selling and distributing obscene material.

Judge Lancaster disagreed. In his opinion throwing out the criminal charges, he relied on a 2003 Supreme Court decision, Lawrence v. Texas, that struck down a Texas homosexual sodomy law. In that case, the Supreme Court held that "liberty protects the person from unwarranted government intrusions into a dwelling or other private places."

Judge Lancaster interpreted that ruling to mean that "public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct even if that conduct is deemed offensive to the general public's sense of morality."

The judge said he was not convinced by the government's insistence on keeping pornography away from children or unwitting adults, because Extreme Associates required its customers to give their names and credit card information, join a club and pay a fee before downloading or buying videos.

A senior Justice Department official, who spoke on the condition of anonymity because the case is still pending, acknowledged that if Judge Lancaster's opinion was upheld on appeal, it would "temporarily curtail" the Justice Department's ability to prosecute a range of obscenity cases, at least in the Third Circuit.

But the official said the Justice Department was confident that settled case law clearly established the government's power to regulate obscenity. In reviewing Judge Lancaster's ruling, the official said, "We believe the court is wrong."

I was a retailer for many years of mainstream New York Times type bestsellers, so I have a few problems with any government efforts to rein in free speech.

Indeed the films at question with Extreme Associates are tasteless and gross, but all content is fictional in nature and meant to make the viewer laugh or gross them out. To imprison a couple in their 20's for 50 years and fine them millions of dollars for such nonsense is government overbearing to the worst degree. I thought it used to be Ronald Reagan who felt that government should get off of people's backs.

Your average New York Times type bestseller features sexually explicit language or imagery. Many motion pictures and television programs feature sexual suggestive situation or more overt situations. Extreme Associates are simply a company that markets tasteless films to entertain, gross out or get a laugh from their customers. There appears to be nothing remarkable in this.

The bill of rights clearly bans any federal efforts to rein in free speech. The wording couldn't be more clear. So in 1973 a split Supreme Court in a 5-4 decision decided that "local communities" could somehow rein in free speech they don't like. Yet there appears to be no sound legal basis for this either. Judge Gary Lancaster rightly recognized that this company took very reasonable steps to prevent minors from accessing their videos with a number of registration and credit card checks to be in place before any downloading or purchase could be made. Attorney General Gonzales and the Bush Administration simply don't want adults to make up their own mind what sort of entertainment or films they wish to view. This administration can't balance the federal budget. Made a anarchy mess of Iraq instead of bringing down Saddam Hussein in an ordely manner by bringing him to justice for crimes in the world court system. Is losing the trade situation with record high imports flowing billions from the American economy. Can't stop the flow of jobs to China, India and Mexico. And has proved itself inept in many other areas, but feels that it should be the judge of what free speech adults should be allowed to view?

You'd expect Attorney General Gonzales first action to be something related to American security or the capture of Osama Bin Laden. Instead it's attemptimg to imprison a couple in their twenties who make lousey trash films.

I trust the wisdom of the marketplace. And this company made a good faith effort to prevent children from accessing their bizarre materials.

If the government can ban absurd materials like this, then they can slowly move against more mainstream speech or against political speech they don't agree with. The Bill Of Rights was intended to protect minority unpopular speech like this. It wasn't until 1850 that a MA bookseller was arrested without any charge for selling a copy of the racy British novel, Fanny Hill. It was a ful year later that the legislature finally wrote a law to justify this arrest. This is absurd. And Mr. Gonzales is equally absurd. He simply doesn't believe in the Bill Of Rights and the Constitution. If a company such as Extreme Associates cannot carefully distribute materials to a few fans of their films to be viewed in the privacy of their own homes then the Bill Of Rights and Constitution mean nothing.

Further it seems like moral hypocrisy for Bush who has been reported to have been involved in a variety of moral faults such as heavy drinking, cocaine and marijuana use up to 1988 or even later as well as some interesting sexual conduct, and who helped produce a "slasher" horror film himself, "The Hitcher".

Extreme Associates simply offer entertainment choices. Mr. Bush engaged in some very destructive conduct that hurt himself and others. It's time for him to back off and leave Extreme Associates alone.

I wouldn't cross the street if their products were free. I'm not interested. But if some are willing to pay their own hard earned money to view such trash, then it's their money. Let them spend it as they want. Viewing a trashy film isn't comparable to Bush spending money on drugs or alcohol to hurt himself, his family and others. He should be smart enough to know the difference.

The fruit grows thick and full on the foul Lawrence v. Texas tree. Such decisions guarantee that none of this private behavior stays private. It has license now to spill out and beyond to stain, befoul, corrode, and destroy everything beyond it.

The tyranny of the noisome minority is that it steals without shame or conscience from the majority, using the courts to substitute its corrupt values as the foundational values.

And always they protest, saying,"You can't legislate morality." But what are doing if not legislating through the courts their own foul "morality"? Call it anti-morality or any other name, but it is still the set of guiding principles after which they pattern their lives.

You know, I may disagree with you on Bush's other policy items, but I certainly agree that the obscenity issue is where President Bush's administration is crossing into unconstitutional issues. I know there are a lot of social conservatives on this board that think the Government should prosecute "obscene material," but they should really call themselves social liberals. A conservative is one who believes in a limited government. A liberal generally believes in an expanded government. Prosecuting obscenity is certainly an area that is the definition of big government. You may not like what is being said or done, but other people have rights also.

"Campaign finance reform" also restricts free speech and has lead to things such as this ridiculous Tom Delay investigation.

I want the government to reduce its reach both financially, and socially.

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