Sunday, November 07, 2004
Will Lawrence v. Texas Help Obscenity Defendants? [Updated Twice]
A couple of porn purveyors from California are currently on trial in Pittsburgh for violating federal obscenity laws. The defendants run Extreme Associates, which markets hardcore pornography -- as their ads say, "The Hardest Hard Core on the Web." They could be jailed for 50 years each if they are convicted. That's right, 50 years for mailing some nasty videos to western Pennsylvania. This AP article at the Miami Herald.com has an update on trial developments:
When the indictment was announced, U.S. Attorney Mary Beth Buchanan said the lack of enforcement of obscenity laws during the mid- to late-1990s "led to a proliferation of obscenity throughout the United States."Time to crackdown upon it, then. Reminiscent of Angelo in Measure For Measure, no?: "Those many had not dar'd to do that evil/If the first that did th'edict infringe/Had answer'd for his deed."
The defense attorney has asked for the case to be dismissed. He argues that Lawrence v. Texas indicates a right to view pornography in the privacy of your home; the right to view must extend to the right to distribute, as otherwise the right to view would be nugatory. The lawyer also noted that "community standards," part of the test for whether something is obscene, has changed its meaning in the age of the internet -- what is the relevant community?
Here's an interesting tidbit from the AP story: "Extreme Associates is still doing business and offers the movies at issue for sale as a package deal with money going to its defense fund."
We've been loosely tracking the Extreme Associates trial, beginning with a guest post last November and most recently with a brief item in April. I previously have expressed skepticism about Lawrence's applicability to another commercial sex case.
Update: Pete Guither of Drug WarRant also has looked at the implications of Lawrence for currently illegal drugs, and points to Professor Randy Barnett's analysis of Lawrence (22 page pdf).
Second Update: Will Baude of Crescat writes in. Will wonders if the defendants' lawyer really believes his own Lawrence-based argument. Quoting Mr. Baude (whom I wish would hurry up and finish law school in case I need a lawyer): "Stanley v
Georgia recognized the first amendment right to view pornography in your
home, but the court has repeatedly rejected any view that it would entail
a right to distribute it."