United States v. Extreme Associates
Encyclopedia
United States v. Extreme Associates is a 2005 U.S. law case
revolving around issues of obscenity
. Extreme Associates
, a pornography
company owned by Rob Zicari
and his wife Lizzy Borden
(also known as Janet Romano), was prosecuted by the federal government for alleged distribution of obscenity
across stateline
s. After several years of legal proceedings, the matter ended in March 11, 2009 with a plea agreement by Rob Zicari
and Lizzy Borden
.
s, was covered in the PBS Frontline documentary American Porn which aired on February 7, 2002; the makers of the documentary were repulsed and walked off the set. Zicari was interviewed in the documentary; he defended the company's content and challenged Attorney General
John Ashcroft
to take action against him. Zicari stated in an interview for the program, "We've got tons of stuff they technically could arrest us for. I'm not out there saying I want to be the test case. But I will be the test case. I would welcome that. I would welcome the publicity. I would welcome everything, to make a point in, I guess, our society". These scenes possibly led to the subsequent undercover operation by federal authorities.
On April 8, 2003, the premises of Extreme Associates were raided by federal agents, and five videos were seized. The United States Postal Inspection Service
and the Pornography Unit of the Los Angeles Police Department
's Organized Crime and Vice Division had conducted the investigation leading to the indictment. On September 5, 2002 a U.S. postal inspector had joined the Extreme website. Postal inspectors then viewed clips on the site, and ordered three videotapes which were sent to a postal agent in Pittsburgh. On August 6, 2003 Black, Borden and the company were indicted by a federal grand jury
in Pittsburgh on ten counts of the production and distribution by mail and the Internet of obscene pornographic materials. Zicari and Romano faced a maximum total sentence of fifty years in prison, a fine of $2,500,000, or both. Extreme Associates, Inc. faced a maximum total sentence of a term of probation of fifty years and a fine of $5,000,000. The prosecution also sought forfeiture of the films charged in the indictment, all gross profits from the
distribution of the films, and all property used to facilitate the alleged crimes, including the domain name extremeassociates.com. At the time it was the first major federal obscenity prosecution in ten years.
Zicari's company is located in North Hollywood near Los Angeles
. However, the indictment and trial took place in the Western District of Pennsylvania
, from where undercover agents had ordered the offending materials, and video clips had been downloaded. Extreme also posted videotapes and DVDs to a distributor in the district. It has been alleged the authorities chose this area of Pennsylvania
because they believed a conviction for obscenity would be easier to achieve in that socially conservative district than in California, as a jury would be more likely to agree the material offended the standards of its local community, which is part of the Miller Test
used to judge obscenity in the U.S.
The trial has been seen as a test case of the acceptable limits of pornography.Mary Beth Buchanan
was the federal prosecutor in the case. In an interview on 60 Minutes
she said, "We have just had a proliferation of this type of material that has been getting increasingly worse and worse. And that's why it's important to enforce the law, and to show the producers that there are limits. There are limits to what they can sell and distribute throughout the country" Ms. Buchanan has also stated that "The lack of enforcement of federal obscenity laws during the 1990s has led to a proliferation of obscenity throughout the United States, such as the violent and degrading material charged in this case." Buchanan has said that Zicari's comments on the Frontline program "helped us to determine that this was not a producer who was trying to comply with the law"
Zicari remained in business during the trial; he continued to market and sell the five tapes that are at the center of the prosecution as The Federal Five, with a portion of the sales price going to his defense fund. Note that buyers of those materials do not break the law, since mere possession of obscenity (unlike production and distribution) is not illegal. The involved movies are
The prosecution also charged the defendants with transmitting six obscene video clips over the Internet through the extremeassociates.com website. The six video clips were entitled "valeriejospit", "jewel", "PZ Summer Breeze", "dp-gangbang-7gen-X", "miacum" and "analasspirations1", and ranged in length from 37 seconds to two minutes, 54 seconds.
The early developments in the case were covered in the 2004 TV documentary The Porn King Versus the President.
, gave individuals the constitutional right to view offending materials in private, a right which cannot be meaningfully exercised without a corresponding right of companies to distribute such materials. The prosecution countered that an individual's right to privacy is unrelated to a company's right to commercial distribution.
The defense moved to dismiss the indictments on the grounds that federal obscenity statutes violated the constitutional guarantees of privacy and liberty that were protected by the due process
clause. Referencing Lawrence v. Texas
and Stanley v. Georgia
the defense argued there is a fundamental right to sexual privacy which includes the right to possess and view sexually explicit material in one's own home. The defense argued that this right was not affected by the fact that the material does not have any literary or artistic merit, and that since the federal obscenity laws imposed a complete ban on materials which people have the right to possess, they were unconstitutional.
On January 20, 2005, District Court
Judge
Gary L. Lancaster
dropped the charges, agreeing with the defense that the federal anti-obscenity statutes were unconstitutional
, as they violated a person's fundamental right to possess and view whatever they want in the privacy of their own home. As a fundamental right had been violated, the government had to establish that a compelling state interest was involved. The prosecution argued that the government had a legitimate interest in protecting adults from unwitting exposure to obscenity, and protecting children from exposure to obscenity. These arguments were rejected by the court, which also ruled that the federal obscenity laws were not narrow enough to meet these interests, and could not justify a complete ban on obscene material. Lancaster ruled that children and unwitting adults are protected from the content because the website requires a credit card to join, and because software is available by which parents can restrict children's access to Internet pornography. The court did agree with the government that Lawrence had not created a new broad fundamental right to engage in any private sexual conduct. Instead the court relied on Stanley, which had established there was a fundamental right to private possession of obscene material. The court did rely on Lawrence for its assertion that the government could not use public morality as a legitimate state interest which justified the infringement of consensual, adult, private sexual conduct. The court also made reference to the dissenting opinion of Justice Scalia, who said that Lawrence had questioned the validity of U.S. obscenity laws, since the government could not enforce a moral code of conduct. Judge Lancaster also cited numerous constitutional scholars who had observed that the Lawrence ruling calls federal obscenity laws into question.
"Courts use one of two tests to assess the constitutionality of statutes that are faced with a substantive due process challenge: the strict scrutiny test or the rational basis test," wrote Judge Lancaster. "Therefore, we must first determine which test should be applied in this case."
"Where the law restricts the exercise of a fundamental right, we apply the strict scrutiny test... Under the strict scrutiny test, a statute withstands a substantive due process challenge only if the state identifies a compelling state interest that is advanced by a statute that is narrowly drawn to serve that interest in the least restrictive way possible... In other words, even if the government has a state interest that rises to the level of being compelling, if there is a less restrictive way to advance it, the statute fails this test."
"Where it is not a fundamental right that is restricted, we apply the rational basis test... Under the rational basis test, a statute withstands a substantive due process challenge if the government identifies a legitimate state interest that the legislature could reasonably conclude was served by the statute... It is not enough under the rational basis test, however, for the government to simply announce some theoretical and noble purpose behind the statute. Rather, the statute must reasonably advance that purpose in order for the statute to survive even this deferential test..."
"Because the [Lawrence] case involved two consenting adults engaged in sexual activity in the privacy of their own home and not minors, persons who might be coerced or injured, public conduct, or prostitution, the Court found that no state interest – including promoting a moral code – could justify the law's intrusion into the personal and private life of the individuals involved..."
"In a dissenting opinion joined by Chief Justice Rehnquist and Justice Thomas, Justice Scalia opined that the holding in Lawrence calls into question the constitutionality of the nation's obscenity laws, among many other laws based on the state's desire to establish a 'moral code' of conduct... It is reasonable to assume that these three members of the Court came to this conclusion only after reflection and that the opinion was not merely a result of over-reactive hyperbole by those on the losing side of the argument."
, announced on February 16, 2005, that it would appeal the ruling. That appeal was filed with the Third Circuit Court of Appeals
on April 11, 2005, argued on October 19, 2005, and decided on December 8, 2005.
The appeals court reversed the lower court and reinstated the suit against Zicari and Romano, ruling that the lower court had erred in setting aside the federal obscenity statutes, which had been repeatedly upheld in Supreme Court decisions. The appeals court pointed to previous Supreme Court opinions stating that the right to decide whether a subsequent Supreme Court ruling invalidates an earlier one belongs to the Supreme Court alone, not to a lower court.
The ruling concluded, "we have declined to equate the privacy of the home ... with a 'zone of privacy' that follows a distributor or a consumer of obscene materials wherever he goes," and concluded that precedent had not in fact been overturned by the Lawrence ruling, and the trial judge had erred in law to state they had. Only the Supreme Court could say if their own prior decisions had been overturned, and they had reserved that right to themselves in past cases.
Furthermore, with regards to whether or not the fact of the Internet delivery made the community standards test inapplicable, the ruling argued, "The mere fact, without more, that the instant prosecution involves Internet transmissions is not enough to render an entire line of Supreme Court decisions inapplicable given their analytical and other factual similarities to this case."
The couple's attorney subsequently filed a petition asking the U.S. Supreme Court to hear the case. The petition, however, was denied.
As stated in several adult trade publications including AVN, due to the company's economic failing, Zicari and his wife decided that they were not able to retain the legal counsel needed to successfully fight the reinstated charges with a lengthy court fight. Several attorneys involved with the case denied their lack of interest to represent Zicari. However none of these same lawyers stated they would engage in a long term trial pro bono
when asked.
On March 11, 2009 Extreme Associates and its owners pled guilty to the reinstated obscenity charges to avoid trial, effectively shutting down the company. Extreme Associates also apparently took its website down concurrent with the plea.
The couple was sentenced on July 1, 2009 to one year and one day in prison. In late September they began serving their prison sentences, Zicari at La Tuna Federal Correctional Institution in Texas and Romano at Waseca Federal Correctional Institution
in Minnesota.
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
revolving around issues of obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
. Extreme Associates
Extreme Associates
Extreme Associates, formerly known as Extreme and Extreme 2.0, is a pornographic film producer, featuring a catalog of DVD titles and Internet content. It is owned by Rob Zicari and his wife Janet Romano . The studio's material is controversial, with its films often featuring erotic humiliation...
, a pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
company owned by Rob Zicari
Rob Zicari
Robert D. Zicari a.k.a. Rob Black is an American pornographer and former professional wrestling promoter. Together with his wife Janet Romano he owns the porn company Extreme Associates....
and his wife Lizzy Borden
Janet Romano
Janet Romano-Zicari, better known as Lizzy Borden, is an American former pornographic actress and professional wrestling valet...
(also known as Janet Romano), was prosecuted by the federal government for alleged distribution of obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
across stateline
Stateline
State Line or Stateline may refer to:* borderSpecific places:* Stateline, California, near Lake Tahoe* State Line, California, former settlement in Mono County* State Line, Idaho* Stateline, Kansas* State Line, Mississippi* Stateline, Nevada...
s. After several years of legal proceedings, the matter ended in March 11, 2009 with a plea agreement by Rob Zicari
Rob Zicari
Robert D. Zicari a.k.a. Rob Black is an American pornographer and former professional wrestling promoter. Together with his wife Janet Romano he owns the porn company Extreme Associates....
and Lizzy Borden
Janet Romano
Janet Romano-Zicari, better known as Lizzy Borden, is an American former pornographic actress and professional wrestling valet...
.
Leading up to the indictment
The filming of Lizzy Borden's movie Forced Entry, which included several simulated rapeRape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
s, was covered in the PBS Frontline documentary American Porn which aired on February 7, 2002; the makers of the documentary were repulsed and walked off the set. Zicari was interviewed in the documentary; he defended the company's content and challenged Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
John Ashcroft
John Ashcroft
John David Ashcroft is a United States politician who served as the 79th United States Attorney General, from 2001 until 2005, appointed by President George W. Bush. Ashcroft previously served as the 50th Governor of Missouri and a U.S...
to take action against him. Zicari stated in an interview for the program, "We've got tons of stuff they technically could arrest us for. I'm not out there saying I want to be the test case. But I will be the test case. I would welcome that. I would welcome the publicity. I would welcome everything, to make a point in, I guess, our society". These scenes possibly led to the subsequent undercover operation by federal authorities.
On April 8, 2003, the premises of Extreme Associates were raided by federal agents, and five videos were seized. The United States Postal Inspection Service
United States Postal Inspection Service
The United States Postal Inspection Service is the law enforcement arm of the United States Postal Service. Its jurisdiction is defined as "crimes that may adversely affect or fraudulently use the U.S...
and the Pornography Unit of the Los Angeles Police Department
Los Angeles Police Department
The Los Angeles Police Department is the police department of the city of Los Angeles, California. With just under 10,000 officers and more than 3,000 civilian staff, covering an area of with a population of more than 4.1 million people, it is the third largest local law enforcement agency in...
's Organized Crime and Vice Division had conducted the investigation leading to the indictment. On September 5, 2002 a U.S. postal inspector had joined the Extreme website. Postal inspectors then viewed clips on the site, and ordered three videotapes which were sent to a postal agent in Pittsburgh. On August 6, 2003 Black, Borden and the company were indicted by a federal grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
in Pittsburgh on ten counts of the production and distribution by mail and the Internet of obscene pornographic materials. Zicari and Romano faced a maximum total sentence of fifty years in prison, a fine of $2,500,000, or both. Extreme Associates, Inc. faced a maximum total sentence of a term of probation of fifty years and a fine of $5,000,000. The prosecution also sought forfeiture of the films charged in the indictment, all gross profits from the
distribution of the films, and all property used to facilitate the alleged crimes, including the domain name extremeassociates.com. At the time it was the first major federal obscenity prosecution in ten years.
Zicari's company is located in North Hollywood near Los Angeles
Los Angeles, California
Los Angeles , with a population at the 2010 United States Census of 3,792,621, is the most populous city in California, USA and the second most populous in the United States, after New York City. It has an area of , and is located in Southern California...
. However, the indictment and trial took place in the Western District of Pennsylvania
United States District Court for the Western District of Pennsylvania
The United States District Court for the Western District of Pennsylvania sits in Pittsburgh, Erie, and Johnstown, Pennsylvania. It is composed of ten judges as authorized by federal law. The Honorable Judge Gary L. Lancaster is currently Chief Judge of the Western Pennsylvania District...
, from where undercover agents had ordered the offending materials, and video clips had been downloaded. Extreme also posted videotapes and DVDs to a distributor in the district. It has been alleged the authorities chose this area of Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
because they believed a conviction for obscenity would be easier to achieve in that socially conservative district than in California, as a jury would be more likely to agree the material offended the standards of its local community, which is part of the Miller Test
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
used to judge obscenity in the U.S.
Mary Beth Buchanan
Mary Beth Buchanan, née Kotcella, , was the United States Attorney for the Western District of Pennsylvania. She was nominated by George W...
was the federal prosecutor in the case. In an interview on 60 Minutes
60 Minutes
60 Minutes is an American television news magazine, which has run on CBS since 1968. The program was created by producer Don Hewitt who set it apart by using a unique style of reporter-centered investigation....
she said, "We have just had a proliferation of this type of material that has been getting increasingly worse and worse. And that's why it's important to enforce the law, and to show the producers that there are limits. There are limits to what they can sell and distribute throughout the country" Ms. Buchanan has also stated that "The lack of enforcement of federal obscenity laws during the 1990s has led to a proliferation of obscenity throughout the United States, such as the violent and degrading material charged in this case." Buchanan has said that Zicari's comments on the Frontline program "helped us to determine that this was not a producer who was trying to comply with the law"
Zicari remained in business during the trial; he continued to market and sell the five tapes that are at the center of the prosecution as The Federal Five, with a portion of the sales price going to his defense fund. Note that buyers of those materials do not break the law, since mere possession of obscenity (unlike production and distribution) is not illegal. The involved movies are
- Extreme Teen 24: contains a scene of a naive supposed young girl being talked into having sex by an older man. The actress involved was over 18, however dressed and acted like a young girl.
- Cocktails 2: various scenes of women drinking vomit, saliva and other bodily fluids. It was the director's cutDirector's cutA director's cut is a specially edited version of a film, and less often TV series, music video, commercials, comic book or video games, that is supposed to represent the director's own approved edit...
version of the film that was cited in the case. - Ass Clowns 3: a female journalist is being raped by a gang led by Osama bin LadenOsama bin LadenOsama bin Mohammed bin Awad bin Laden was the founder of the militant Islamist organization Al-Qaeda, the jihadist organization responsible for the September 11 attacks on the United States and numerous other mass-casualty attacks against civilian and military targets...
; the journalist is freed and the gang members killed. The director's cut version also contains a scene where Jesus steps off the cross and has sex with an angel. - 1001 Ways to Eat My Jizz:
- Forced Entry: The film depicts the beating, rape and murder of women by a serial killer, who is eventually killed by a mob of vigilantes. There are three scenes which graphically portray rape and murder, and women are also spat on. Extreme's website called it their "most controversial movie" and "a stunningly disturbing look at a serial killer, satanic rituals, and the depths of human depravity." Forced Entry was directed by Lizzy Borden and released in 2002. Again it was the director's cut version of the film that was cited in the case.
The prosecution also charged the defendants with transmitting six obscene video clips over the Internet through the extremeassociates.com website. The six video clips were entitled "valeriejospit", "jewel", "PZ Summer Breeze", "dp-gangbang-7gen-X", "miacum" and "analasspirations1", and ranged in length from 37 seconds to two minutes, 54 seconds.
The early developments in the case were covered in the 2004 TV documentary The Porn King Versus the President.
Initial successful motion
During a hearing in November 2004, Zicari's lawyer H. Louis Sirkin argued that the right to privacy, recently confirmed and strengthened in Lawrence v. TexasLawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
, gave individuals the constitutional right to view offending materials in private, a right which cannot be meaningfully exercised without a corresponding right of companies to distribute such materials. The prosecution countered that an individual's right to privacy is unrelated to a company's right to commercial distribution.
The defense moved to dismiss the indictments on the grounds that federal obscenity statutes violated the constitutional guarantees of privacy and liberty that were protected by the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
clause. Referencing Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
and Stanley v. Georgia
Stanley v. Georgia
Stanley v. Georgia, , was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law.The Georgia home of Robert Eli Stanley, a suspected and previously convicted bookmaker, was searched by police with a federal warrant to seize betting paraphernalia...
the defense argued there is a fundamental right to sexual privacy which includes the right to possess and view sexually explicit material in one's own home. The defense argued that this right was not affected by the fact that the material does not have any literary or artistic merit, and that since the federal obscenity laws imposed a complete ban on materials which people have the right to possess, they were unconstitutional.
On January 20, 2005, District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
Judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
Gary L. Lancaster
Gary L. Lancaster
Gary L. Lancaster is a United States federal judge.Born in Brownsville, Pennsylvania, Lancaster received a B.S. from Slippery Rock State College in 1971 and a J.D. from the University of Pittsburgh School of Law in 1974. He was a Regional counsel, Pennsylvania Human Relations Commission from 1974...
dropped the charges, agreeing with the defense that the federal anti-obscenity statutes were unconstitutional
Constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...
, as they violated a person's fundamental right to possess and view whatever they want in the privacy of their own home. As a fundamental right had been violated, the government had to establish that a compelling state interest was involved. The prosecution argued that the government had a legitimate interest in protecting adults from unwitting exposure to obscenity, and protecting children from exposure to obscenity. These arguments were rejected by the court, which also ruled that the federal obscenity laws were not narrow enough to meet these interests, and could not justify a complete ban on obscene material. Lancaster ruled that children and unwitting adults are protected from the content because the website requires a credit card to join, and because software is available by which parents can restrict children's access to Internet pornography. The court did agree with the government that Lawrence had not created a new broad fundamental right to engage in any private sexual conduct. Instead the court relied on Stanley, which had established there was a fundamental right to private possession of obscene material. The court did rely on Lawrence for its assertion that the government could not use public morality as a legitimate state interest which justified the infringement of consensual, adult, private sexual conduct. The court also made reference to the dissenting opinion of Justice Scalia, who said that Lawrence had questioned the validity of U.S. obscenity laws, since the government could not enforce a moral code of conduct. Judge Lancaster also cited numerous constitutional scholars who had observed that the Lawrence ruling calls federal obscenity laws into question.
"Courts use one of two tests to assess the constitutionality of statutes that are faced with a substantive due process challenge: the strict scrutiny test or the rational basis test," wrote Judge Lancaster. "Therefore, we must first determine which test should be applied in this case."
"Where the law restricts the exercise of a fundamental right, we apply the strict scrutiny test... Under the strict scrutiny test, a statute withstands a substantive due process challenge only if the state identifies a compelling state interest that is advanced by a statute that is narrowly drawn to serve that interest in the least restrictive way possible... In other words, even if the government has a state interest that rises to the level of being compelling, if there is a less restrictive way to advance it, the statute fails this test."
"Where it is not a fundamental right that is restricted, we apply the rational basis test... Under the rational basis test, a statute withstands a substantive due process challenge if the government identifies a legitimate state interest that the legislature could reasonably conclude was served by the statute... It is not enough under the rational basis test, however, for the government to simply announce some theoretical and noble purpose behind the statute. Rather, the statute must reasonably advance that purpose in order for the statute to survive even this deferential test..."
"Because the [Lawrence] case involved two consenting adults engaged in sexual activity in the privacy of their own home and not minors, persons who might be coerced or injured, public conduct, or prostitution, the Court found that no state interest – including promoting a moral code – could justify the law's intrusion into the personal and private life of the individuals involved..."
"In a dissenting opinion joined by Chief Justice Rehnquist and Justice Thomas, Justice Scalia opined that the holding in Lawrence calls into question the constitutionality of the nation's obscenity laws, among many other laws based on the state's desire to establish a 'moral code' of conduct... It is reasonable to assume that these three members of the Court came to this conclusion only after reflection and that the opinion was not merely a result of over-reactive hyperbole by those on the losing side of the argument."
Appeal by the Department of Justice
The Department of Justice, then headed by Alberto GonzalesAlberto Gonzales
Alberto R. Gonzales was the 80th Attorney General of the United States. Gonzales was appointed to the post in February 2005 by President George W. Bush. Gonzales was the first Hispanic Attorney General in U.S. history and the highest-ranking Hispanic government official ever...
, announced on February 16, 2005, that it would appeal the ruling. That appeal was filed with the Third Circuit Court of Appeals
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
on April 11, 2005, argued on October 19, 2005, and decided on December 8, 2005.
The appeals court reversed the lower court and reinstated the suit against Zicari and Romano, ruling that the lower court had erred in setting aside the federal obscenity statutes, which had been repeatedly upheld in Supreme Court decisions. The appeals court pointed to previous Supreme Court opinions stating that the right to decide whether a subsequent Supreme Court ruling invalidates an earlier one belongs to the Supreme Court alone, not to a lower court.
The ruling concluded, "we have declined to equate the privacy of the home ... with a 'zone of privacy' that follows a distributor or a consumer of obscene materials wherever he goes," and concluded that precedent had not in fact been overturned by the Lawrence ruling, and the trial judge had erred in law to state they had. Only the Supreme Court could say if their own prior decisions had been overturned, and they had reserved that right to themselves in past cases.
Furthermore, with regards to whether or not the fact of the Internet delivery made the community standards test inapplicable, the ruling argued, "The mere fact, without more, that the instant prosecution involves Internet transmissions is not enough to render an entire line of Supreme Court decisions inapplicable given their analytical and other factual similarities to this case."
The couple's attorney subsequently filed a petition asking the U.S. Supreme Court to hear the case. The petition, however, was denied.
New Trial
Following the Supreme Court's denial of the petition, the case was sent back to the district court.As stated in several adult trade publications including AVN, due to the company's economic failing, Zicari and his wife decided that they were not able to retain the legal counsel needed to successfully fight the reinstated charges with a lengthy court fight. Several attorneys involved with the case denied their lack of interest to represent Zicari. However none of these same lawyers stated they would engage in a long term trial pro bono
Pro bono
Pro bono publico is a Latin phrase generally used to describe professional work undertaken voluntarily and without payment or at a reduced fee as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms...
when asked.
On March 11, 2009 Extreme Associates and its owners pled guilty to the reinstated obscenity charges to avoid trial, effectively shutting down the company. Extreme Associates also apparently took its website down concurrent with the plea.
The couple was sentenced on July 1, 2009 to one year and one day in prison. In late September they began serving their prison sentences, Zicari at La Tuna Federal Correctional Institution in Texas and Romano at Waseca Federal Correctional Institution
Federal Correctional Institution, Waseca
The Federal Correctional Institution, Waseca is a United States federal prison in Waseca, Minnesota. It is a low security prison housing female inmates. The site was converted into a prison after formerly serving as a University of Minnesota campus until 1992. The prison was co-ed for a few...
in Minnesota.
Legal aspects and implications
Quotations from the appellate ruling:- [...] the Supreme Court explicitly admonished lower courts that "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions [...] even as the Court in Agostini concluded that its own adherence to the old precedent "would undoubtedly work a 'manifest injustice'" in light of later decisions, it emphasized that "the trial court acted within its discretion in entertaining the motion [requesting relief under the newer cases] with supporting allegations, but it was also correct to recognize that the motion had to be denied unless and until this [Supreme] Court reinterpreted the binding precedent."
- "[The] right to receive is not a right to the existence of modes of distribution of obscenity, which the State could destroy without serious risk of infringing on the privacy of a man's thoughts; rather, it is a right to a protective zone ensuring the freedom of a man’s inner life..."
- "In Orito, for example, the defendant was prosecuted under § 1462 for privately transporting obscene material in interstate commerce (to wit, knowingly carrying obscene materials in his private luggage on a domestic commercial flight). Orito "moved to dismiss the indictment on the ground that the statute violated both his First and Ninth Amendment rights." ... In dismissing the indictment, the Supreme Court explained that the District Court had misinterpreted not only Stanley, but also Griswold to establish constitutional protection for the non-public transportation of obscene material ... we have declined to equate the privacy of the home relied on in Stanley with a 'zone of privacy' that follows a distributor or a consumer of obscene materials wherever he goes."
- "We conclude that the Supreme Court has analyzed and upheld the federal statutes regulating the distribution of obscenity under the constitutional right to privacy embodied collectively in the First, Ninth, and Fourteenth (thus also the Fifth) Amendments, as well as the Griswold line of decisions that the District Court asserted should control this case. The fact that such analysis has never been applied within the precise scenario outlined by the District Court – i.e., use of the talismanic phrase "substantive due process" in the context of a vendor proceeding under derivative standing on behalf of a consumer’s right to privately possess obscene material – does not negate the binding precedential value of the Supreme Court cases employing that analysis. The Court’s analysis need not be so specific in order to limit a district court’s prerogative to overturn an entire category of federal statutes, even as applied to particular defendants, based on speculation about a later decision that fails even to mention those statutes. The Court has considered the federal statutes regulating the distribution of obscenity in the context of the broader constitutional right to privacy and upheld them. That such analysis was conducted absent its constitutional brand name does not negate its precedential value."
- "It was therefore impermissible for the District Court to strike down the statutes at issue based on speculation that Orito and other pivotal obscenity cases "appear[] to rest on reasons rejected in" Lawrence... Even if there were analytical merit to such speculation, an issue on which we do not opine, the constraint on lower courts remains the same. The possibility that Lawrence has "somehow weakened the precedential value of" the Reidel line of cases is irrelevant for purposes of ruling on the instant indictment."
External links
- Judge Grants Extension in Extreme Associates Case
- Report on November 2004 hearing
- Dismissal of U.S. v. Extreme Associates
- Department of Justice announcement of appeal
- US prosecutor's brief appealing the ruling to the Third Circuit - filed April 11, 2005
- Ruling of the Court of Appeals, reinstating the case against Zicari
- Links to several blog comments regarding the affair
- Interview of Rob Zicari by avninsider.com: part 1, part 2
- American Porn documentary by PBS Frontline (first aired in 2002, updated in 2004), watchable online.