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« Dr. Alan Wexelblat Joins Copyfight | Main | Lasica Burns the Broadcast Flag »

January 26, 2005

Anti-porn, anti-IP

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Posted by Alan Wexelblat

If you have been kind enough to read what I've written on Tech IP you know that one of my current concerns is the US Government's campaign to stifle speech it doesn't like. I think this is critically interesting because a key facet of intellectual property is the ability to disseminate creativity to an audience. The more mediation there is in this process - be it the FCC or the Content Cartel - the more problems will arise.

One of the public faces of this campaign has been Howard Stern versus Michael Powell. That has had several amusing moments; I really did expect Stern to sing "Ding Dong the Witch is Dead" when Powell announced his resignation. However, on a quieter side, the government has also been clamping down hard on the porn industry. Yes, I'm about to defend porn producers - as has been said, popular speech isn't in need of defense; it's the unpopular stuff that needs defending.

In this case, the creators are Extreme Associates, producers of some fairly edgy material. Their stuff apparently includes simulated rapes, bodily fluids, and even simulated snuff (murder) films. Not exactly family fare and as you'd expect the government picked what ought to be a fairly easy target for its first major porn prosecution in over a decade. To just about everyone's surprise, not only did the government lose, but they got slapped hard by the trial judge (Gary L. Lancaster) who effectively threw out the entire Federal obscenity statute.

Of course this is only the trial level and there are sure to be appeals but this is a decision worthy of examination. I am not a lawyer myself and I'm relying a lot on a very thoughtful writeup by an LJer who goes by the name "alanesq" (pure coincidence I assure you).

The essence of the argument in dismissing the charges is that the government cannot assert an interest in preventing people (adults) from owning the material; therefore, to prosecute someone for production of something that is legal to own is itself a violation of due process and the 14th Amendment to the US Constitution. Interestingly, Lancaster drew heavily on the SCOTUS logic in Lawrence v. Texas. That case, which overturned anti-sodomy laws, essentially cut the legs out from under all attempts by the US Government to prosecute laws regulating private behavior between consenting adults on a "public morality" basis. Thus, even though the Extreme Associates material may be obscene in the public sphere, private sale to adults and private viewing in the adults' home doesn't generate any compelling problems for the government. Thus, no grounds to prosecute.

Alanesq believes that the decision has a weakness in relying on the 14th Amendment rather than directly tackling the 1st Amendment freedom-of-speech issues. I agree that is a problematic area, as there is precedent for the notion that obscenity may not be protected expression. I think that these issues will be more directly addressed in Nitke v Ashcroft, which I suppose will soon be retitled Nitke v Gonzalez and which opens up a whole realm of torture jokes.

The PA attorney hasn't announced whether they'll appeal (which would go to the Third Circuit I believe). I haven't a clue which way the 3rd is likely to lean - anyone want to speculate? On the one hand, Extreme's Zicari issued a pretty public challenge to Ashcroft and there are a couple of other minor prosecutions that are at risk if this decision stands. On the other hand, the Feds may not want to risk setting a larger precedent that invalidates their whole obscenity law framework. If Lawrence actually has the wide-reaching implications that some conservatives fear, then it may not be possible to patch the cracks in the dam.

PDF of the decision in Extreme Associates:

Comments (2) + TrackBacks (0) | Category: Speech


1. luminous on January 26, 2005 4:54 PM writes...

Are you sure its Bowers, and not Lawrence? Bowers upheld sodomy laws, Lawrence struck them down.

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2. Dr. wex on January 26, 2005 5:48 PM writes...

You're right. My goof, now fixed. Thank you.

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