Judges Gone Wild

Americans are faced with a clear choice.

With the growing clout of “values voters,” the fight against judicial activism has also been gaining ground. One person likely to find himself at the center of this debate is U.S. District Judge Gary Lancaster.

As recently as August, Lancaster boldly proclaimed, “Far be it for a district judge to, at best, misinterpret and at worst, appear to overrule the U.S. Supreme Court.”

Late last week, however, Judge Lancaster dismissed United States v. Extreme Associates, declaring federal obscenity statutes unconstitutional and tossing three decades of Supreme Court precedent.

The case centered on two pornographers, Robert Zicari and his wife Janet Romano, who produce and sell hardcore sex videos depicting the rape, mutilation, and murder of women. Shortly after appearing on a 2002 Frontline documentary, Zicari and Romano found themselves and their company, Extreme Associates, under federal investigation for posting obscene video clips online and sending obscene videos to an undercover Postal Inspector.

The issue was not whether the videos were obscene. The defense didn’t contest this. Their argument was that if Americans have the right to possess obscene material in their home, which the Supreme Court affirmed in Stanley v. Georgia, there must also be a correlating right to transport or distribute such matter to the home.

Judge Lancaster agreed. He wrote: “We find that the federal obscenity statutes burden an individual’s fundamental right to possess, read, observe, and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials.”

Drawing heavily from the Supreme Court’s Lawrence v. Texas decision overturning that state’s anti-sodomy laws, Lancaster argued that all laws based on a moral code are no longer valid.

He wrote, “We find that after Lawrence, the government can no longer rely on the advancement of a moral code i.e., preventing consenting adults from entertaining lewd and lascivious thoughts, as a legitimate, let alone a compelling state interest.”

Unfortunately, Judge Lancaster confuses Lawrence’s protection of private consensual matters in the home with acts conducted in public. Lawrence did not suddenly overturn public decency laws. Public sexually related activities can still be regulated or prohibited, and this was the issue at stake in the Extreme case. Whether showing obscene videos in public or using public common carriers—such as the mail or Internet—to transport them, these actions extend beyond any zone of privacy defined by law.

This private/public distinction is clearly established in obscenity case law. In United States v. Orito, the Supreme Court wrote, “Congress has the power to prevent obscene material, which is not protected by the First Amendment, from entering the stream of commerce. The zone of privacy that Stanley protected does not extend beyond the home.”

The Court has spoken equally clearly on this issue in other cases: Paris Adult Theatre I v. Slaton, United States v. Reidel, United States v. 12 200-ft. Reels of Film—and even Stanley v. Georgia, on which Lancaster relied for his ruling.

Lancaster cited these opinions only to note that they didn’t apply to the Extreme case. Ignoring them, however, won’t make them go away. When Lancaster finally wakes up from his Constitution-rewriting bender, he’s also going to discover that his contrived ruling is unlikely to thrill the legal community, even the activist-minded 3rd Circuit Court, which would hear any appeals.

Even if judicial activism isn’t in your top five causes, a case like this demonstrates more clearly than ever the choice facing all Americans: Either champion a judiciary whose vision of liberty requires the proliferation of “entertainment” depicting the rape, torture, and murder of women or one which understands and agrees such material has no connection to human freedom.

Daniel L. Weiss is the Media and Sexuality Analyst for Focus on the Family.

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