Last week the adult industry was shocked to learn that federal charges of obscenity against adult movie company Extreme Associates were dismissed in federal court. In an outcome the defied predictions, 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.Last week the adult industry was shocked to learn that federal charges of obscenity against adult movie company Extreme Associates were dismissed in federal court. In an outcome the defied predictions, 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.
The decision came after a motion from the defense to dismiss the indictment.
“There was no testimony ever taken,” explained attorney Eric Bernstein of Eric M. Bernstein and Associates (embalaw.com). “The parties apparently agreed to a joint set of facts and stipulations.”
Many webmasters were left wondering if Judge Lancaster’s decision will ultimately change the adult industry’s legal playing field of tomorrow, or if it merely represents a brief moment of triumph that will soon be erased on appeal.
“The feds could file what’s known as a ‘Motion for Reconsideration’ asking Judge Lancaster to reconsider his decision,” said Bernstein. “I don’t think they’ll do that – they’re not obligated to. The appeal on this one will take another 9 to 12 months easy. 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.”
Bernstein explained that under all practical estimates – and even if the ruling is ultimately reversed – it will be quite some time before the Extreme Associates case could be argued in front of a jury.
“So we’re looking conservatively at another twenty-four months of appellate practice before this matter is decided whether or not it’s even going to trial,” said Bernstein.
Is there any chance that the case will be expedited?
“They can ask for an expedition but I don’t know if they’re going to get it,” said Bernstein. “The Third Circuit’s under no obligation to expedite their decision. They could also take it straight to the Supreme Court. The problem is you have to convince the Supreme Court that they’ll even touch this.”
Although Judge Lancaster’s decision does not legally bind other courts to the same conclusions, left unturned it does provide considerable ammunition for defense attorneys in future obscenity cases. The government could launch additional obscenity indictments in other districts and hope for a different outcome, but according to Bernstein the Lancaster decision will serve as a significant hurdle for the prosecution.
“They could launch indictments elsewhere and see if they get a different ruling,” said Bernstein. “But then you have Judge Lancaster’s rather lengthy opinion on this matter, and frankly everybody and his brother who follows is going to continue to get Lancaster’s view of it.”
“I think people are going to be a little more leery in terms of bringing these kinds of prosecutions,” predicted Bernstein. “Having lost one, the Justice Department can’t afford to keep losing. And even if they won one, okay you won one and lost a bunch, which one applies?”
“The problem with continuing to pick and choose these kinds of cases is that ultimately if you keep losing them, where are you going?” Bernstein added.
Bernstein explained that Lancaster’s decision is a worst-case scenario for the government; it potentially derails what might have been the first big move in a series of obscenity indictments against the adult industry.
“They were hoping they were going to take a national case and sort of use this as a springboard,” explained Bernstein. “Now you have just the opposite result. You cherry-picked this district. You cherry-picked where you wanted it. They could have brought the Extreme Associates case anywhere in the country, including California where these people are based, and what did they do, they choose to bring it in the Western District of Pennsylvania, which was supposedly a conservative district that was going to look more favorably upon this issue. And they don’t even get a chance to get a jury.”
The case was argued for the defense by legendary adult industry defender Louis Sirkin; Sirkin was one of the attorneys who inspired the character played by actor Edward Norton in the film The People Versus Larry Flynt. Sirkin used the Supreme Court’s Lawrence decision to argue for the dismissal of all charges – it was the issue of Right of Privacy and not Free Speech that ultimately landed Sirkin and his clients with the victory.
“What Sirkin did, and what Lancaster bought into, was to adopt effectively the Kennedy theory in Lawrence,” explained Bernstein. “The issue of Right of Privacy may become equally as important as the right of Free Speech now, in light of the methods and means upon which people view this kind of material. So back to Miller vs. California. Miller vs. California was a 1971 United States Supreme Court case. This is pre the VCR. This is pre the internet. So the only way people could view adult material was either at a place that provided such entertainment, or a movie theater or similar type of situation. Now you have a significantly different electronic situation where people don’t even have to leave their own home to view the material that used to be only viewable outside in the public domain. The right of privacy now may become even more important than the right of Free Speech because effectively what you now have is telling people what they can and can’t do in their own home.”
Although the decision is undoubtedly a stunning victory for the adult industry, Bernstein cautions businesses not to pump up their “extreme” offerings in light of the Lancaster ruling.
“I don’t think anyone should change their [business practices],” said Bernstein. “The feds are going to start looking for what they consider to be the most, no pun intended, extreme cases because they think that they can sort of blend the whole industry into one extreme case.”
He added it’s unlikely that the Supreme Court will issue a broad ruling that completely invalidates all obscenity laws, but a Supreme Court ruling could affect a large number of potential obscenity indictments.
“The courts are not likely to render broad-based decisions that all obscenity laws are invariably invalid,” said Bernstein. “For example, Lawrence versus Texas was an issue with the Texas sodomy law. Now any law similar to or analogous to what was in Texas is essentially declared unconstitutional by the decision in Lawrence.”
According to Bernstein, adult industry professionals should keep in mind that the adult industry is here to stay.
“Part of the problem with this industry is its own internal paranoia because somebody at 1600 Pennsylvania Avenue … screams you’re all a bunch of heathens,” said Bernstein. “And that may be true, but we’re heathens with money and a business. And notice that Playboy is still in business and Hustler is still in business and all of these cable companies are making hand-over-first money with this stuff.”
The adult industry might do well to remember though that there’s more than one way to skin a cat, and obscenity laws aren’t the only weapon in the government’s arsenal.
“They’re going to look long and hard at whether of not they can deal with this issue not under the concept of obscenity,” predicted Bernstein. “Regulatory actions are a lot easier to prosecute than obscenity issues.”
Connor Young is Editor-in-Chief of YNOT News. He has been involved with the online adult entertainment business since 1997, and also serves as Editor-in-Chief of The ADULTWEBMASTER Magazine. Connor can be reached at connor@ynot.com.
