WASHINGTON, DC – The Supreme Court has denied a petition for a writ of certiorari (or “denied cert,” as it is more commonly known) in the case of Extreme Associates v. United States, according to a list of orders for May 15th posted to the Supreme Court website.While legal observers and representatives of the Free Speech Coalition (FSC) said the Court’s decision came as no surprise and is really of no great significance, pundits representing the Christian Right characterize the denial of certiorari as a kind of victory, in and of itself.
“This comes as no surprise and was completely expected at this stage in the game,” said Tom Hymes, Communications Director for the FSC. “It really doesn’t mean much; just that the case now goes back to trial in a lower court.”
Reed Lee, attorney with the Chicago firm J.D. Obenberger & Associates, concurred with Hymes, saying that the Court denying cert at this stage “means absolutely nothing.”
“The Court could have denied cert for any number of reasons,” Lee told YNOT. “It could mean that they [the Supreme Court] were too busy, found the case uninteresting, or anything in between.”
Lee explained that since the case has not gone to trial yet, the Justices know they are likely to get another chance to hear the case should there be a conviction. Lee said it’s most likely that, given the Supreme Court’s very full docket, they simply chose not to hear a case which hadn’t reached a point where their opinion was needed, strictly speaking.
“The Court gets 7,000-plus cert requests a year and grants maybe 70,” Lee said. “If there’s a conviction in the case, they know they will get another shot to hear it.”
On the other hand, Reed notes, if the two parties settle or there’s an acquittal as a result of trial, then denying cert now means the Court has avoided adding yet another case to an already packed docket.
Such subtleties and practicalities appear to have escaped some observers on the right-hand side of the political spectrum, if early reporting on the Court’s decision is any indication.
“Concerned Women for America (CWA) is pleased but not surprised that the U.S. Supreme Court denied review of a challenge to the federal obscenity laws in Extreme Associates v. United States,” the CWA stated in a press release issued early Monday. “The denial of certiorari means the decision by the U.S. Court of Appeals for the Third Circuit upholding the constitutionality of the federal obscenity laws as applied to Extreme Associates will stand and the case will proceed to trial.”
Jan LaRue, chief counsel for the CWA, sees great significance in the Court’s seemingly ‘pro forma’ decision to deny cert, and took the opportunity to register personal disapproval of Extreme’s content.
“By calling it ‘Extreme,’ they aren’t product-puffing,” said Jan LaRue. “This is some of the most vile and disgusting porn available anywhere. Thankfully, the courts have rejected this ridiculous challenge to the federal law.”
The “courts” have done nothing of the sort, according to Lee.
After US District Court Judge Gary Lancaster dismissed the indictment against Extreme in January of 2005, the DOJ appealed to the Third Circuit Court of Appeals. In its decision, Lee says that the Third Circuit did not “reject” the defense’s constitutional challenges, so much as it side-stepped the issue.
“The Third Circuit didn’t reject the constitutional challenges the defense raised or the arguments made in amicus briefs that we submitted,” Lee explained. “They just said that those issues had to be considered by the Supreme Court and not by a lower court.”
Be that as it may, such facts haven’t deterred absolutist rhetoric from the far right, as the CWA press release and LaRue’s comments demonstrate.
LaRue even went so far as to speculate that the decision to deny cert will lead to capitulation on the part of Extreme Associates – an interesting conclusion given that Extreme’s attorneys have yet to issue any reaction at all to the Court’s decision.
“Like most who are charged with violating obscenity laws, the owners will probably accept a negotiated plea bargain rather than face conviction by a jury and sentencing by a judge,” asserted LaRue.
More likely, the case will now proceed to trial back in the Western District of Pennsylvania and both sides will get the opportunity to make their full case in court.
The eventual outcome of the trial is bound to be the subject of a great deal of speculation in the weeks and months to come. Regardless of the outcome in Pennsylvania, the District Court’s decision is unlikely to be the final word in the case, either.
The decision to deny cert today may prove to be simply a postponing of consideration by SCOTUS. If the trial produces a conviction, will the High Court hear the defense’s constitutional challenges and related arguments then?
Only time will tell.
