PENNSYLVANIA – The United States Court of Appeals for the Third Circuit reversed on Thursday an earlier decision by federal judge Gary Lancaster to throw out the obscenity indictment against adult entertainment company Extreme Associates. Judge Lancaster had thrown the indictment out after hearing arguments from Extreme Associates’ attorney, H. Louis Sirkin, that obscenity laws as applied in the case violate the privacy rights of the company’s customers.“This appeal requires us to decide whether the District Court erred by dismissing an indictment brought against Extreme Associates, Inc. and its proprietors under 18 U.S.C. §§ 1461 and 1465, which criminalize the commercial distribution of obscene materials, on the grounds that those statutes violate the privacy rights of Extreme Associates’ customers under the Fifth Amendment doctrine of substantive due process,” the decision read. “Because we conclude that the District Court improperly set aside applicable Supreme Court precedent which has repeatedly upheld federal statutes regulating the distribution of obscenity in the face of both First Amendment and substantive due process attacks, we will reverse the judgment of the District Court.”

The decision is a setback for the adult entertainment industry, since obscenity laws are based on subjective tests that make it virtually impossible to know what kind of content is allowed and what kind of content is outlawed. Obscenity laws are a favorite of anti-porn “family values” censorship groups like Morality in Media and The American Family Association, who regularly lobby the federal government for more content-based prosecutions and imprisonments.

Adult industry attorney Jeffrey Douglas, who is also Chairman of the Free Speech Coalition, told YNOT that while the decision is not a best case scenario for the adult industry, there is some cause for optimism. According to Douglas, the Third Circuit Court of Appeals completely ducked the privacy issues raised by Sirkin, as well as the First Amendment issues raised by several other groups, and instead overturned Lancaster on procedural grounds.

“It’s both disappointing and encouraging,” Douglas explained. “It’s disappointing that they did not address the important issues raised by the ruling in Lawrence v. Texas as to either privacy as argued by Extreme Associates or the First Amendment issued as argued by Free Speech Coalition, First Amendment Lawyers Association or ACE. On the other hand, it’s encouraging that they did nothing to suggest that the merits of those arguments are wrong. They just said procedurally the question should not be answered by anyone but the United States Supreme Court.”

Douglas added that given the conservative makeup of the panel selected to hear this case, the decision was probably the best the adult industry could have hoped for since it did not undermine the basic arguments against the indictment.

Asked whether the decision would result in an immediate increase in obscenity prosecutions, Douglas opined that the government would probably be best served to stand pat since the ultimate outcome of the Extreme Associates challenge is still very much in the air.

The lead attorney for the government, Mary Beth Buchanan, indicated that she was pleased with the decision.

“The courts have consistently held that the right to free expression does not extend to material which is obscene,” Buchanan said in a statement. “We’re pleased with the Third Circuit’s decision.”

Not surprisingly, Christian censorship groups were claiming victory.

“This ruling is a breakthrough for American families with the 3rd Circuit decisively rejecting Extreme Associates’ arguments,” read a press release from censorship group Focus on the Family, even though the court had not in fact ruled on Extreme Associates’ arguments in the reversal. “In doing so, the court clearly pointed out the faulty reasoning of District Court Judge Lancaster, who disregarded Supreme Court precedent in his earlier decision. We fully expect a quick trial ending in a guilty verdict, given that the defendants have already admitted they have violated federal obscenity law.”

“We applaud the Justice Department, specifically Mary Beth Buchanan, for looking out for families and children by conducting a vigorous investigation and defense of the government’s position. We look forward to many more such cases in the future.”

At this point, the case could be reheard en banc, it could be chosen for review by the United States Supreme Court, or it could be sent back to the trial court level. In any scenario, a quick resolution to this case appears unlikely.

Adult filmmakers Robert Zicari and Janet Romano, known in the adult industry as Rob Black and Lizzy Borden, were charged in 2003 with distributing obscene materials through the U.S. mail and through the internet. In a surprise ruling at the trial court level, US District Court judge Gary Lancaster ruled that federal obscenity laws, as applied to the defendants, were unconstitutional since they interfered with fundamental rights of privacy – a ruling made possible by the United States Supreme Court’s recent decision in the Lawrence vs. Texas sodomy case. Lancaster’s ruling was routinely criticized by conservative censorship advocates.

A copy of the court’s decision can be found here: Extreme Decision.