Pro-Porn Decision in Pennsylvania Peeves Family Advocates
by James L. Lambert, Allie Martin, and Jody Brown
January 28, 2005
(AgapePress) - A federal judge in Pennsylvania has handed down a ruling in favor of a hard-core pornographer who had been indicted 18 months ago. The federal obscenity charges leveled against the porn producer have now been dismissed, spurring charges of "judicial activism."Late last week U.S. District Judge Gary Lancaster handed down a 45-page opinion dismissing federal obscenity charges against Robert Zicari and his company, Extreme Associates of Los Angeles, distributors of violent hard-core porn. According to a report in the Pittsburg Post-Gazette, Extreme Associates "sells films of women being gang-raped, defecated on, and having their throats slit."
The owners, Zicari and his wife, Janet Romano, were indicted in August 2003 by a grand jury that had viewed one of the company's videos. But in his ruling, Judge Lancaster stated that, in light of the U.S. Supreme Court's decision in Lawrence v. Texas, "the government can no longer rely on the advancement of a moral code -- i.e., preventing consenting adults from entertaining lewd or lascivious thoughts -- as a legitimate, let alone a compelling, state interest." In addition, he stated "the federal obscenity statutes violate the constitutional guarantees of personal liberty and privacy of consenting adults who wish to view [the Extreme Associates] films in private."
Charges Dismissed
On that basis, Lancaster dismissed the nine counts of violating the federal obscenity statutes and one count of conspiracy based on that conduct. His decision has brought strong reaction from anti-porn activists who are calling for the ruling to be appealed to U.S. Attorney Mary Beth Buchanan. Among those reacting is retired FBI agent and obscenity investigator William P. Kelly, who says the judge "is applying his own philosophy rather than the federal statutes."
Kelly says he is shocked by the court's rendering in the case. He recalls a statement by Zicari in November when the pornographer said, "we're not talking about bestiality and child pornography ... we talking about consenting adults." But Kelly states "that is like saying that with people who want cocaine and heroine, all we have to do is supply their need for their narcotics."
In addition, the former federal agent contends that Lancaster simply does not understand Title 18 Section 1462-1465 of the federal statutes. The obscenity code, Kelly says, is a "solid statute" that it is further re-enforced by many years of legal precedent.
Former Department of Justice prosecutor Pat Trueman agrees. He stated on ABC's Nightline Monday night that Lancaster was out of step with case law and is clearly an "activist judge." Lancaster, a Clinton appointee, is more in line with someone who makes law rather than interprets the law as it stands, Trueman adds.
Trueman, who is now with the Family Research Council in Washington, DC, observes that high-profile pornographers have long sought to overturn federal obscenity statutes. But he notes that 11 of the 13 original colonies that founded the United States of America had laws on the books censoring pornography -- and none of them were overturned with the introduction of the First Amendment.
Defense attorney Louis Sirkin, who represented Zicari and Romano, has a long history of defending smut merchants like Extreme Associates. Sirkin states that, "if (the public) can't buy them (the hard-core rape tapes), there is really no right" (Pittsburgh Post-Gazette). Kelly flatly rejects that by claiming, contrary to Sirkin's assertions, there is legal precedent going back the Supreme Court decision of Miller v. California.
Zicari denounces government action by saying that such legal battles "intrude into the sex lives of Americans." And commercial pornographers contend that such federal intervention represents unwanted invasion into the lives of their customers as well. Kelly counters by saying that pornographers like Zicari and his lawyer, Louis Sirkin, routinely defend their trade with such arguments. He notes that the defense of this material manifests itself in several of many stock replies. "I have been hearing these [same explanations] for 40 years!" says Kelly.
Claims of 'Judicial Activism'
Diane Gramley, president of the American Family Association of Pennsylvania, says while Judge Lancaster's decision is disturbing, she is even more alarmed that the judge cited a Texas case in his ruling in which sodomy was decriminalized.
"[The attorney for] the owners of Extreme Associates, who is also an attorney for Larry Flynt, [used this] argument during one of the hearings: that because of the decision by the U.S. Supreme Court in the Lawrence v. Texas case, consenting adults should have the right to view any type material they want in the confines of their home," she explains.
She describes Lancaster, who was appointed by former President Bill Clinton early in his first term, as "an example of what an activist judge can do if they're placed in a position where they can make these types of decisions."
"And it shows why it's so very important that President Bush not nominate activist judges, but truly constructionist judges," she adds.
This ruling, Gramley says, gives porn peddlers a "green light" to produce even more obscene material. AFA Center for Law & Policy chief counsel Steve Crampton agrees with Gramley. The defense, he says, "took material that they knew was way over the line," created an arguent that was "creative in a devious sort of way," and used an "in-your-face attitude" to win the case.
"So you've got the federal judge saying that even this most disgusting thing -- [something] almost unspeakable among the pornographers themselves -- [is] entitled to First Amendment protection," Crampton says, adding that implicit in that is that "anything less than that must be entitled to protection to well."
The attorney says bluntly: "It just takes all the wind out of the sails of prosecutors."
Dorn Checkley, director of the Pittsburgh Coalition Against Pornography, is convinced Lancaster's decision -- if upheld on appeal -- could become the basis for overturning all obscenity laws, except perhaps child pornography.
"It seems as though Judge Lancaster conspired with the defendants to protect them from the wrath of a jury trial," Checkley says. "After all, the same legal arguments [he] used to dismiss charges would have been the basis of an appeal by the defendant anyway."
And Gramley, referring again to Lancaster's use of the Lawrence v. Texas decision, says predictions made at that time are now coming to fruition. That decision, she says, "is being used to destroy families in way the Supreme Court justices never imagined."
