Vice Squad
Tuesday, February 15, 2005
Differing Views on the Extreme Associates Obscenity Case [Updated]

A few weeks ago a federal judge dismissed charges against two interstate purveyors of nasty movies. The reaction, shall we say, has been mixed. First, Orin Kerr of the Volokh Conspiracy explains why he expects the decision to be overturned. Julie Hilden, in a Findlaw Legal Commentary, hopes that the opinion has staying power...
...If so, it will make speech in this country more free, and privacy more sacrosanct.

Judge Lancaster's opinion is remarkable in that it shows a federal trial judge's willingness to admit what the U.S. Supreme Court will not: The emperor - here, the law of obscenity - has no clothes.

Put bluntly, the law of obscenity, no matter how longstanding, has never satisfied constitutional requirements, and it never will. Finally, a judge has been brave enough to say as much. This opinion is notable for that reason - and for Judge Lancaster's novel approach. His opinion attacks the obscenity laws on privacy grounds - and thus may be more effective than pure free-speech attacks mounted in the past.
Two senators, Orrin Hatch and Sam Brownback, were less pleased with the result:
This is what happens when judges ignore the law in favor of their own agenda. They take a little piece of this, toss in a chunk of that, and smear a layer of the other on top — whatever it takes to get them where they want to go. In their wake, the Constitution lies in shambles, statutes passed by the people's representatives are in the dumpster, the rule of law loses its vitality and, once again, the people are deprived of the right to govern themselves and define the culture. Oh, and in this case, the porn industry looks at a judicial Frankenstein's monster and exults, "It's alive!"
So tomorrow, Senator Brownback will preside over a Senate Subcommittee hearing that promises to excoriate the Extreme Associates decision some more.

Update: Adult Video News (AVN; generally not work safe) now has an article up on tomorrow's hearing, with some details:
Only three speakers have been invited: Robert A. Destro, professor of law at the Catholic University of America's Columbus School of Law, where he is co-director and founder of the Interdisciplinary Program in Law & Religion; W. William Wagner, associate professor at the Thomas M. Cooley Law School; and Frederick Schauer, Frank Stanton Professor of the First Amendment and former academic dean of the John F. Kennedy School of Law at Harvard University.

Little is known about Prof. Wagner, but the anti-porn stance of Prof. Schauer and the conservative religious credentials of Prof. Destro are extensively on record.
AVN also promises a report on what transpires at the hearing.

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