Online Obscenity Ban Upheld

Federal appeals court says moral prohibitions OK, even after Lawrence sodomy ruling

A federal appeals court in Philadelphia ruled on December 8 that the federal obscenity laws are not rendered unconstitutional by the Supreme Court’s 2003 decision in Lawrence v. Texas, which struck down the nation’s remaining sodomy laws.

The ruling, in an opinion by Circuit Judge D. Brooks Smith, appointed to the court by President George W. Bush, reinstates criminal indictments against Extreme Associates, Inc., an Internet porn vendor, and its owners Robert Zicari and Janet Romano, for commercial distribution of obscenity.

The Extreme Associates Web site provided access to obscene video clips for its “members” and also sold obscene materials delivered to purchasers using the U.S. mail. The Web site embodied the usual precautions of warning off minors and those who did not want to see obscene materials, and restricting online access by requiring credit card payment for membership. U.S. postal inspectors purchased a membership, viewed obscene clips online, and ordered films for delivery to undercover addresses. A federal grand jury authorized a 10-count indictment against Extreme Associates and its owners in August 2003, for violating federal criminal obscenity distribution laws.

The Lawrence ruling, issued in June 2003, found that moral disapproval of homosexuality by the government could not provide a legitimate justification for criminalizing private, consensual gay sex. In his dissenting opinion, Justice Antonin Scalia argued that the majority’s reasoning of the opinion would lead to the invalidation of obscenity laws.

In October 2003, picking up the ball from Scalia, the Extreme Associates defendants moved to dismiss the indictments, arguing that the federal obscenity laws must be found unconstitutional in light of Lawrence. They also argued that because their entire operation was conducted online, federal court precedents upholding the obscenity laws, all of which they argued pre-dated the era of Internet commerce, did not provide a binding precedent, because the courts in those cases had not considered whether Internet transactions might be protected by the privacy of the home, a concept the Supreme Court recognized in an important 1969 obscenity decision, Stanley v. Georgia.

Stanley was a state law obscenity prosecution against a man discovered to have reels of obscene pornographic films in his home when police offers entered with a search warrant seeking evidence of illegal gambling. The Supreme Court ruled that despite prior precedents finding that obscenity was not protected by the First Amendment, the privacy of the home shields an individual from prosecution for the possession of obscene materials. But, since then, the Supreme Court has repeatedly rejected constitutional challenges to state and federal laws outlawing commercial distribution of obscene material, refusing to expand the scope of Stanley from the home into the commercial sphere.

In January, District Judge Gary Lancaster found both of Extreme Associates’ arguments—regarding Lawrence and the unique nature of Internet distribution—persuasive, and granted the motion to dismiss the indictment, finding that commercial activity online was private.

In reversing Lancaster’s order, the three-judge 3rd Circuit panel said that he had violated a basic rule about the binding effect of Supreme Court precedents. Smith noted that the high court has repeatedly instructed lower courts that they are not authorized to reject established precedents on the ground that a more recent Supreme Court decision has implicitly overruled them. Unless the Supreme Court states in so many words that a particular prior decision is overruled, lower federal courts are supposed to follow the precedent.

Lancaster asserted that the prior decisions rejecting constitutional challenges to the obscenity laws had not considered the exact same legal theories that Extreme Associates was advancing, specifically regarding the Internet. The 3rd Circuit was not impressed by this reasoning, finding that privacy arguments had frequently been raised by criminal defendants attempting to defeat obscenity prosecutions.

“Extreme Associates argues that the relevant cases are distinguishable because they ‘were all decided before the advent of the Internet,’ suggesting that ‘the commercial transportation of obscenity considered by the Court [in those cases] was of a more public variety than the Internet commerce at issue here,” wrote Smith, summarizing the defendants’ argument. “As such, ‘the concern for community decency and order that arose in [the other obscenity cases] is irrelevant to this prosecution. We decline to join appellees in that analytical leap.”

While conceding that the Supreme Court has described the Internet as “a unique and wholly new medium of worldwide communication” in cases testing congressional attempts to outlaw sexually explicit material online, Smith wrote that in those same cases the court had taken note of laws forbidding transmission of obscene material but expressed no doubts about their validity.

“In other words,” wrote Smith, “the court thus far has not suggested that obscenity law does not apply to the Internet or even that a new analytical path is necessary in Internet cases.”

Thus, the 3rd Circuit’s ruling revives the indictments, but expresses no view as to the constitutionality of the challenged obscenity statutes, finding they can only be struck down by the Supreme Court, either by explicitly overruling prior precedents or by deciding that Internet commerce presents a new issue. The Supreme Court has not yet agreed to review any case in which the potential scope of Lawrence’s reasoning is tested, having rejected that opportunity in refusing to hear an appeal of Florida’s successful defense of its anti-gay adoption law earlier this year. Perhaps this case will be the one, if Extreme Associates decides to appeal.