WASHINGTON, D.C. – The United States Justice Department issued a press release today declaring it had appealed the recent Extreme Associates decision to the United States Court of Appeals for the Third Circuit. According to the press release, U.S. Attorney Mary Beth Buchanan filed the government’s notice of appeal today in the United States District Court for the Western District of Pennsylvania.“The Department of Justice 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,” said Attorney General Alberto R. Gonzales. “The Department of Justice remains strongly committed to the investigation and prosecution of adult obscenity cases.”
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 last month, 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.
YNOT contacted Rob Black, who was upbeat and positive in spite of the appeal.
“As far as right now the case is dropped,” Black told YNOT. “I’ve got my passport, I can do whatever the fuck I want to do. But we knew it was going to come, we knew they were going to probably appeal it. So fuck, we kicked their ass in the federal court, we’ll kick their ass in the Third Circuit Court of Appeals.”
Appealing the decision isn’t without its risks for the government. If the Lancaster ruling is upheld on appeal and again by the Supreme Court, the government could be left without the ability to prosecute most adult entertainment businesses for obscenity.
According to respected First Amendment attorney Larry Walters of FirstAmendment.com, the appeal doesn’t come as a shock.
“The appeal is not surprising, given the nature of the order dismissing the case, and the fact that a federal statute was found unconstitutional,” said Walters in response to an inquiry from YNOT. “Typically, the government tries to preserve the laws it uses to prosecute citizens, when they are declared invalid by the courts. There must have been intense political pressure to pursue this appeal as well, considering the Senate Hearing that was hastily organized to discuss the potential negative impact of this decision on the ability to prosecute obscenity cases. The Third Circuit, which will hear this case, has historically been sympathetic and intellectually honest when it comes to First Amendment issues, and we hope for a fair shake in this case. I anticipate that a number of groups will line up on both sides in the attempt to influence the outcome of the appeal, by filing amicus briefs. This is an important case to watch for the industry.”
So what happens now? According to attorney Eric Bernstein, the process might be dragged out for some time.
“The appeal on this one will take another 9 to 12 months easy,” explained Bernstein in a previous conversation with YNOT. “Then depending on the Third Circuit decision … either they can [send] Judge Lancaster’s decision back to Judge Lancaster for reconsideration under a series of guidelines they give him, they can reverse Judge Lancaster and reinstate the indictment, or they can uphold Judge Lancaster and uphold the dismissal of the indictment. The loser would have the right then to take this to the United States Supreme Court. The question is whether the Justice would take the case or not take the case.”
Whatever happens, Rob Black seems ready for the fight.
“We’ve got the upper hand now, now it’s up to them to try to fucking make the worm turn,” said Black. “So we’ll see what fucking happens.”
