the dismissed United States v. Extreme Associates (.PDF ruling) in which the argument focused on obscenity in terms other than First Amendment rights.
Although a lengthy summary of the case’s evolution lies at ABC News, you can find a strong non-news analysis of the ruling at attorney/scholar John Wirenius’s journal. He recaps the conflicts within first amendment rulings and how Lawrence v. Texas gave the defendants new grounds on which to argue their case.
As noted in the well-linked-to AVN article,
“before the Supreme Court’s Lawrence v. Texas ruling, government had been able to show it had a ‘compelling interest’ in restricting sexual activities. But Lawrence v. Texas said in effect that the government can no longer use ‘compelling interest’ as a rationale for suppressing what adults many do in private.”
Who knew AVN had some of the best legal writing around?
As a layperson — and speaking as a layperson only — I like how this decision has the potential to affect several elements of law. Some possibilities:
First, again as noted in the AVN article, it helps evolve the notion of privacy under the law. As someone who vaguely remembers the days when married couples couldn’t buy contraception here in Connecticut — imagine my parent’s shock when, upon moving here from Las Vegas, NV in the early 60s, they found condoms were illegal — I’m all for the strengthening of privacy law.
The ruling might also affect commerce law. I have no idea where we stand in commerce law, re: porn these days, but if one can own and distribute, it would certainly seem that a)it might weaken pandering statutes and therefore b)the courts cannot limit it in commerce terms.
Last, I think this ruling, if it actually withstands further appeals, could create a new basis for a first amendment test. As defense attorney H. Louis Sirkin said in AVN piece, ” it will obliterate the notion that community standards trump personal privacy.” I suspect that if one can argue that there’s a market, then they can argue there’s a community. The internet has changed the very notion of community and community can no longer be viewed on a strictly geographical basis. Hell, I’ve yet to talk to anyone about this case in my geographic locale, but I’m sure talking about it via my online social network.
On that last note, I hope the Nitke v. Ashcroft team can employ elements of these changes in their case. I’d love to see first amendment weaknesses shored up and if it takes a different amendment precident to do it, cool.
Finally, I’m delighted that this ruling came out of the third district federal court. Can you imagine the conservative uproar, had it come out of the notorious ninth district? That the ruling came from a court where conservatives had hopes is, at the very least, a morale boost for my side. I’ll take it.
