U.S. v. Extreme Associates, Inc.

This post is a review of U.S. v. Extreme Associates, Inc., 431 F.3d 150 (3d Cir. 2005), in connection with my post below about cases prosecuted and appealed by U.S. Attorney Mary Beth Buchanan. It is a follow-up to a few back-and-forth posts concerning an article at Reason by Radley Balko who, I am informed does not smoke pot even though he is a libertarian. If none of this sounds interesting to you (and I can't blame you if it doesn't), you can feel free to browse other, more intellectual sites, like this one.

First, let me make a few admissions. I argued elsewhere that Buchanan has to follow instructions issued by her boss, Alberto Gonzalez, who announced in July of 2005 that the Department of Justice would make obscenity prosecutions an administration priority. This decision was widely criticized:

"His own prosecutors have warned Acosta that prioritizing adult porn would reduce resources for prosecuting other crimes, including porn involving children. According to high-level sources who did not want to be identified, Acosta has assigned prosecutors porn cases over their objections."

But the indictment handed down in this case was done in August, 2003, long before Gonzalez was even made the AG. Second, I thought the Third Circuit agreed with the District Court that the statutes are unconstitutional. That was incorrect, as it turns out. The Third Circuit upheld the statutes and remanded (I don't know what happened back in the District Court).

So that's the policy background. The legal background is this: two folks in California operate Extreme Associates, Inc., which runs a web site. For purposes of the litigation, Extreme agrees that its product is "obscene" within the meaning of the law. See id. at 151, n. 2. (A portion of the web site is available to the general public, and another portion is only accessible if you pay $89.95 for 90 days. In other words, they are catering to people too stupid to type "Paris Hilton naughty pics" into a Google search engine, and who have far too much money for their own good). Anyone who forks over the 90 bucks can then order videos and whatnot, which is shipped by mail.

The two statutes used by the feds read as follows:

18 U.S.C. 1461: "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance ··· [i]s declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever knowingly uses the mails for the ··· delivery of anything declared by this section ··· to be nonmailable ··· shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter."

18 U.S.C. 1465: "Whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service ··· in or affecting such commerce for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, case, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both."

Wait a second ... you can't use the mail to send obscene silhouettes? Okay, that's illustrative of part of the problem, here. These statutes are obviously remnants of a long-past age. No one has taken obscenity laws seriously in a long time. For whatever reason, the feds decided to see if they could get back into the dirty pictures business here, and this is the statute they used.

At this point, the federalism and libertarian aspects of the case become interesting, although not exactly on-point to the question presented (i.e. whether Buchanan has done something improper). The First Amendment never protected porn until the Supreme Court invented to right in Stanley v. Georgia, 394 U.S. 557 (1969)(holding that the right to look at nekkid ladies is "fundamental" under the Constitution). You'd think that kind of judicial over-reaching would offend libertarian sensibilities, but apparently you'd be wrong. Second, the challenge made to the statutes by Extreme was not based on the First Amendment, but on the Fifth Amendment "substantive" due process clause -- a clause which does not, technically, exist. Again, you'd think that libertarians would be happy to see a judge ignore substantive due process arguments, but not when there's porn at stake. Of course a federalist can well ask where the feds get the power to regulate pictures of naughty bits -- well we have a clear case of interstate commerce here (person in Penn. sends money to Calif., person in Calif. sends goods to Penn.). Much as I dislike the Supreme Court's habit of ignoring the "commerce" and "interstate" portions of the interstate commerce clause, this case seems to fall right in line.

So we've got Constitutional authority for the statute, and we've got nothing to defeat the statute except for judicially invented "rights" (fundamental, no less) to view obscenity and a judicially invented "substantive" due process clause. At least on the face of things, I can't imagine there's much of anything to complain about in this prosecution.

The Third Circuit agreed with the District Court that the statutes are unconstitutional. It held that:

1. Extreme Associates can challenge the statute on behalf of its customers. Note that there is a fundamental right to look at porn -- not to sell it. So Extreme is in a better position if it can stand in the shoes of a hypothetical buyer. That's what happened here.

2. The District Court had no right to find the statutes unconstitutional. In spite of Stanley, the Supreme Court has refused for well over thirty years to find the federal obscentiy statutes unconstitutional. The District Court believed that after Lawrence v. Texas (in which the Supreme Court held that gay sex is a fundamental right), the Supreme Court would not longer uphold such laws. The Third Circuit reversed, noting that only the Supreme Court can decide what the Supreme Court considers to be good law.

3. Controlling Supreme Court precedent holds that while there is a right to observe pornography in one's own home, there is no correlative right to distribute porn. The Court rejected analyses under the First, Fifth, Ninth and Fourteenth Amendments, finding that the Supreme Court's controlling and consistent precedent showed that the obscenity statutes are all within constitutional boundaries.

In conclusion, Buchanan decided to prosecute a party that admits it produces obscentiy, admits it ships obscene materials through the mail, and admits it violates a federal statute by so doing. The only argument -- that the statute is unconstitutional -- has been roundly rejected over and over again for decades. The Third Circuit agreed with Buchanan.

What, exactly, is the problem here? I'll stipulate with Balko that the statute is dumb. But so what? "Dumb" does not equal "unconstitutional." And nothing about this case supports the central premise of Balko's article -- that Buchanan is diverting resources from important cases to unimportant ones -- unless we first see some evidence of the cases Buchanan declines to prosecute. Obviously an analysis of published cases won't provide any data on that. Finally, I simply see no reason why any prosecutor should be faulted for prosecuting violations of the criminal laws, however outdated or foolish they may be.