PITTSBURGH, PA – In a brief hearing this morning, the Third U.S. Circuit Court of Appeals heard arguments from both sides in US v. Extreme Associates, in what amounted to a reiteration of arguments now very familiar to those following the case.Highly-regarded First Amendment specialist Louis Sirkin, of Sirkin, Pinales & Schwartz, LLP, argued on behalf of the defendants, Rob Zicari (AKA Rob Black) and Janet Romano (AKA Lizzy Borden). On the federal government’s side, Sirkin was countered by seasoned US Attorney Mary Beth Buchanan
Jennifer Kinsley, also of Sirkin, Pinales & Schwartz, who was in attendance at today’s hearing, told YNOT that at this point, there is no way to predict what the panel’s decision will be.
“It’s a wide open issue; nobody knows,” Kinsley said. “We felt that the panel was receptive to the argument, and understood the argument, which are both positives.”
Kinsley characterized the questions asked by the panel as “very intellectual,” and said that the panel had very pointed questions for both sides, some of which favored the government’s side of the argument, and others that broke towards the respondents’ position.
As of the time of this article’s writing, Buchanan’s office had not responded to YNOT’s request for comment regarding today’s hearing.
According to published accounts of the hearing, Buchanan conceded to the three-judge panel that people can do what they want in their own homes, but there is no right to receive or distribute obscene materials which extends from that liberty. Buchanan asserts that District Judge Gary L. Lancaster erred in his ruling that a right to distribute obscene materials flows from privacy rights.
“There is nothing new in this case,” Buchanan said Wednesday, arguing that it had been well-settled by previous U.S. Supreme Court rulings over the past several decades that a right to possess obscenity did not mean there was a right to distribute it.
Buchanan’s arguments were very much an echo of those the government made in the case’s earlier rounds, public comments made by DOJ officials, and points made in Buchanan’s briefs submitted to the appeals court.
“The Supreme Court … has historically and repeatedly rejected the specious claim, and the flawed conclusion, that any right to privacy the court discussed in Stanley created some correlative right to receive or distribute obscene material,” Buchanan wrote in a brief.
According to Kinsley, the bulk of Buchanan’s argument Wednesday focused on precedent, and she spent a large portion of her allotted 25 minutes going through a number of decisions which reject the notion that there is a right to commercial distribution of obscene materials.
Kinsley said Buchanan did bring up issues of morality, as well as the notion of protecting children, but that the court “did not seem interested in discussing morality,” preferring instead to focus on the central question of whether an individual’s right to view the kinds of material created and distributed by Extreme Associates in the privacy of their own home means that there is a corresponding right to obtain, and thereby distribute, those same materials.
“That’s the million dollar question,” Kinsley said. “If we win that, we win the case.”
In Sirkin’s view, the right to possession and viewing of pornography is meaningless without the corresponding rights to buy, sell and distribute the material. “In order for me to exercise my right to liberty, I have to get it,” Sirkin said.
Sirkin further noted that the Internet has changed the realities and possibilities of both privacy and commerce. He also pointed out that the federal agents who purchased Extreme Associates’ products did so via a members-only section of the Extreme Associates website, and in a private setting.
The appeals panel offered no indication of how soon it would rule, and observers all agreed that there is no way to accurately gauge which way they are leaning. The case thus enters a now-familiar mode: wait and see.
