Obscenity Law Upheld:
As I expected, the Third Circuit has reversed the January district court decision striking down a federal obscenity statute. The Court's opinion in United States v. Extreme Associates is available here.
You got the grounds right as well ... the decision is entirely based on the applicability of prior Supreme Court decisions.
12.9.2005 7:45am
Beerslurpy (mail) (www):
So youre saying that even though you had to pay money and consent to receiving the obsecene material, the government could still arrest them for distributing it? That doesnt make any sense. I could understand if they were posting an obscene billboard on the side of a highway or putting up nude posters in a school cafeteria, but I dont see how someone could inadvertantly be exposed to the obscene material unless they were looking for it.

If the 9th amendment protects individuals against state intrusion into the bedroom regardless of the putative obscenity of their acts, how can a locus of interstate commerce strip away that protection? Again, it seems backwards.

Doesnt this mean that thousands of porn sites and mail distributors are now threatened with federal action? What distinguishes them from this distributor? The porn doesnt appear to have been any kinkier or obscene than garden variety internet porn.
12.9.2005 8:23am
JohnO (mail):

The key point is that the parties stipulated for puirposes of the motion to dismiss that the material was obscene. The opinion doesn't really say what the materials were. If they were garden-variety porn, then the defendants very likely might prevail on First Amendment grounds at the close of the government's case. But I think the Third Circuit is quite right that Supreme Court precedent pretty clearly provides that there is no First Amendment protection for obscenity. Of course, the famouns "I know it when I see it" standard is what led to the weekly porn watching sessions by the Supreme Court that is described in "The Brethren."
12.9.2005 8:31am
Beerslurpy (mail) (www):
I wasnt saying the 3rd circuit made a bad decision, I just didnt personally understand it.

I think I see the distinction now.
12.9.2005 8:44am

I think Extreme ultimately wants a reconsideration of the obscenity laws in the Supreme Court. I think the Third was right that it had no authority to reconsider those laws in light of the applicable precedent, but the District Court was right that in light of other recent Supreme Court cases, the Court's holdings in the obscenity cases are hard to reconcile.
12.9.2005 8:57am
Ubertrout (mail) (www):
Maybe it's just me, but the Supreme Court's statement that "we don't overrule ourselves until we say we do" is unworkable in an era when 99% of cert petitions get rejected. Especially in a case like this, where I'd think the Supreme Court would be loath to engage the political controversy, the 3rd Cir should have been a little more willing to apply the law as it stood, rather than deferring to past Supreme Court precedent that Scalia's dissent asserted was being overruled in Lawrence.
12.9.2005 1:00pm

Whether it is a "workable" idea or not, the Third Circuit is in fact an inferior court and it is bound to follow what the Supreme Court has said.
12.9.2005 1:21pm
Ubertrout (mail) (www):
The Third Circuit is bound by the Supreme Court's controlling precedent. However, if that precedent has been implicitly overruled, then it is not controlling.

Most Supreme Court decisions are not explicitly overturned but rather implicitly so - to require explicit overturning would destroy federal stare decisis, since it would recreate thousands of conflicts where they had thought to have been settled.
12.9.2005 1:37pm
Law Student Kate (mail):
Beerslurpy -

Extreme Associates' product is absolutely not "garden variety" porn. It's the gold-standard of the most extreme material available, and they're widely shunned by the rest of the porn community. One of their most popular series, "Cocktails", involves women drinking glasses of vomit and other bodily fluids. In their best-selling movie, "Forced Entry", the storyline is about a serial killer who rapes and kills women, including a pregnant woman. The actresses in the film are slapped, spit and urinated upon, beaten, and violated in every orifice, while sobbing and screaming and begging for mercy. Now granted, these actresses are consenting to be in the movies, but this isn't just a horror movie - this is sold for people to masturbate to. Interestingly, the producer of the movies is a woman.

If you want to read more about the product, there's a Salon article here:

Salon Extreme Associates Article

The material may or may not change your constitutional analysis, but people should at least be aware of what it is before making conclusions.
12.9.2005 2:03pm
Ubertrout (mail) (www):
Kate...if this was garden variety porn, which is not obscene under the legal definition, we'd hardly be talking about it in the first place. Insofar as I'm familiar with the relevant law regarding community standards, something needs to be unusually extreme even by hardcore standards to be considered obscene. It's an interesting question though, whether the normative "there has to be a limit" doctrine is actually at work in these cases, and not a cold first (or 14th here) amendment inquiry. Of course, some could argue that a cold substantive due process inquiry is an oxymoron, but that's a seperate question.
12.9.2005 3:32pm

I'm not sure I understand your argument. In this case, the same statutes were challenged on the same grounds and upheld by the Supreme Court. But you seem to suggest that in the name of federal stare decisis and uniformity, the Third Circuit should decide that these cases were "implicitly overruled" by other cases not dealing with the same statutes nor identical issues.

I don't see how circuit courts deciding to overrule Supreme Court precedents in such circumstances would promote stare decisis and uniformity.
12.9.2005 4:32pm
Ubertrout (mail) (www):
Sometimes the Supreme Court precedent has been called into question by the court. The relevant question that must be asked is whether the court has effectively overturned its previous holding, or not.

Ithe many cases where the court does not explicitly overrule a broad holding but effectively does, or significantly expands the previous paradigm (as they arguably did in Lawrence), the Circuit could must reevaluate certain precedents of the Supreme Court in light of more recent but broader Supreme Court precedents, which are ultimately controlling over the more recent ones. To do otherwise would be to deny the precedential power of the more recent decisions, not to mention the Supreme Court neither can nor will grant cert to any but a handful of relevant decisions involving the new paradigm. It is ultimately up to the circuits to apply it.
12.9.2005 4:57pm

Except the Supreme Court has said the exact opposite about what circuit courts should do in such circumstances. Which, again, is an instruction the inferior courts have to obey.
12.9.2005 7:40pm