Porn dealer scoffs at feds
Faces trial for selling ultra-violent films
Tuesday, November 02, 2004

By Torsten Ove, Pittsburgh Post-Gazette

Indicted California pornographer Robert D. Zicari had a message for everyone yesterday after a federal court hearing to determine if he committed a crime by selling films showing women being raped and murdered.

"Order 'The Federal Five!'" he said, referring to the five hard-core porn movies on which federal prosecutors in Pittsburgh have built the first major U.S. obscenity case in a decade.

"We're not talking about bestiality and child pornography," said Zicari, 31, who owns Extreme Associates with his wife, Janet Romano, 27. "We're talking about consenting adults."

In a case being watched nationwide, Extreme Associates defended itself for the first time in court, asking U.S. District Judge Gary Lancaster to throw out an indictment for distribution of obscene materials brought last year by U.S. Attorney Mary Beth Buchanan.

Possession of obscene materials is legal, but production and distribution is not.

Extreme's lawyer, H. Louis Sirkin, of Cincinnati, argued that federal obscenity laws are unconstitutional.

He said people have the right to view porn videos in the privacy of their homes, but that right is infringed if they can't get the films anywhere.

"If I can't buy them, there really is no right," he said. "In order to be able to possess it, I need to be able to buy it."

Sirkin said people's sex lives are none of the government's business and that obscenity laws "violate the substantive force of liberty as guaranteed by the due process clause of the Constitution."

Buchanan and Assistant U.S. Attorney Stephen Kaufman said the Lawrence decision doesn't apply because the Extreme prosecution is about a porn company selling violent sex films for profit, not an invasion of anyone's privacy.

Kaufman said Supreme Court case law supports the prosecution.

"If you have the right to possess, does that mean someone else has a correlating right to distribute?" asked Kaufman. "The cases say no."

He cited a 1973 Supreme Court case, U.S. v. Twelve 200-Ft. Reels, in which a man was prosecuted for carrying obscene material into the country from Mexico. The high court rejected the man's argument that the right to possess obscene material in the home creates a right to acquire it or import it.

Lancaster grilled Kaufman about why the government brought the Extreme case.

As an analogy, he said that if newspaper reporters in the gallery wanted to criticize him or the prosecution in print, could the government then restrict their ability to do so by taking away their tools?

"Could you pass a law preventing the sale of ink?" he said.

Kaufman said the state interest is to prevent the distribution of obscene materials in communities that object to them. He said people are free to have any kind of sex they want in private, but "the crime is in filming and distribution of that sexual conduct."

Lancaster said he'll rule as soon as possible, but he didn't give a time frame.

The Zicari case represents a renewed effort by the Justice Department to combat what it sees as the proliferation of extremely hard-core and violent pornography.

Buchanan has said the government all but abandoned its policing efforts in the 1990s, and in the meantime the industry has mushroomed and become increasingly accepted as part of American culture.

Zicari and Romano aren't the only defendants being pursued. In Texas, federal prosecutors in June indicted a former Dallas police officer and his wife on charges of selling rape videos online.

And in West Virginia, a couple pleaded guilty this year to mailing videos depicting sexually explicit scenes that included defecation and urination.

But the Zicari investigation, which began with a Los Angeles Police Department probe, is seen as a benchmark.

Zicari, who calls himself Rob Black, and Romano, who goes by the name Lizzy Borden, have vowed to go to trial, and they remain defiant in denouncing what they see as government intrusion into Americans' sex lives.

Zicari, who has taunted the LAPD and the federal government on national television, bragged yesterday that he's still in business and will keep doing what he does. "We're building a new Web site," he said.

One of the keys to the case, of course, will be defining obscenity.

"One man's obscenity is another man's art," said Sirkin. "We didn't ban the Jodie Foster movie where she's gang-raped in a pool hall ('Accused'). We didn't ban 'Pulp Fiction.' It showed mass murder. Where does it end? These are movies. They're illusions."

The Extreme films depict real sex, but the violence, including women having their throats slit after being raped, is simulated.

To win a conviction, the prosecution will have to rely on a 1973 Supreme Court case that provided guidelines for establishing that something is obscene.

The jury must decide whether the average person, applying "community standards," thinks the film appeals to a "prurient interest," whether the film shows sex in a "patently offensive way" and whether it lacks serious literary, artistic, political or scientific value.

When she announced the indictment last year, Buchanan said Extreme Associates fits the bill.

"This is not a case about limiting personal sexual conduct," she said. "It is not a case about banning sexually explicit material. This is a case about a pornography producer who has violated federal law. Extreme Associates has engaged in criminal conduct by producing and distributing material that violates our contemporary community standards."

love him or hate him a victory for him is a victory for us all.

And a loss for him is a loss for all... however, I imagine even if a victory would be good for all of porn... many pornsters didn't like him trying to get to a courtroom... they have no faith in the court to get a win.

by tomorrow it could be a mute point

From avn.com


Extreme Associates Get First Day In Court
By: Mark Kernes
11-02-2004


PITTSBURGH - H. Louis Sirkin, the attorney for Rob Black and Lizzy Borden in the interstate/internet obscenity prosecution filed several months ago by Assistant U.S. Attorney Mary Beth Buchanan, was a little peeved by the headline in the Pittsburgh Review-Tribune in today’s issue: “Rape, Snuff Films Protected, Defense Argues.”

But, Sirkin said, “The media was very, very receptive to us. They talked to me for a long time afterwards, and they’re getting the picture and the argument about this liberty interest.”

The key phrase in Sirkin’s argument on Monday about “liberty interest” before U.S. District Court Judge Gary Lancaster was “substantive due process,” a legal theory dating back decades but which was most recently brought back into the public eye in the U.S. Supreme Court’s decision in Lawrence v. Texas, which invalidated a Texas statute prohibiting consensual sex between two adults of the same gender.

Justice Antonin Scalia, in his dissent in that case, claimed, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' [v. Hardwick, the original anti-gay-sex case] validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.”

Judge Lancaster “asked me in chambers whether this argument had been made before, on the substantive due process,” Sirkin explained, “and I said I’d raised it in Louisiana, and that case sort of ended with an agreed sentencing so we didn’t appeal it. And I said I have the issue pending in Cincinnati and it’s an appellate issue which will be argued in December. The government then started to argue that nobody’s accepted it, and the judge came back and said, ‘He’s only expressing what Justice Scalia said in his dissent. You know, he’s saying just what Justice Scalia said, that that’s what Lawrence means.’”

Sirkin said that that statement appeared to take a bit of the wind out of the government attorneys’ sails. After all, if the Supreme Court’s most anti-sex judge agrees with Sirkin’s argument, even though Scalia did make it clear that he didn’t like it, where’s a prosecutor to go for validation?

The U.S. v. Extreme Associates case may turn out to revolve around the fundamental issue of what sexual enjoyments adults may have in their own home. In his argument to the court, U.S. Attorney Steve Kaufman, who presented the majority of the government’s case at the hearing, referred to the 1969 Supreme Court decision in Stanley v. Georgia, in which the court ruled that although a Georgia man should not be prosecuted for having obscene material in his home, the government retained broad power to regulate the sale and distribution of such material.

Sirkin, however, called into question the logic of that argument.

“It doesn’t make any difference whether the material is obscene or not,” Sirkin noted. “As long as it’s being disseminated into the hands of people who are going to use it privately, it’s like the sale of contraceptives. Somebody’s got to sell them for somebody to use them at home. So it’s a privacy issue, not a First Amendment issue, and he [the judge] picked up on that, and we talked about what did Stanley v. Georgia really mean? And I said Stanley v. Georgia talked about the freedom of thought and getting those ideas and viewing those ideas in your own home.

“I said, ‘But if you historically follow the doctrine, contraceptives aren’t made in someone’s home; they’re ultimately purchased and taken there.’”

Kaufman also brought up the 1973 Supreme Court case, U.S. v. Twelve 200-Ft. Reels, in which the high court rejected a defendant’s argument that the right to possess obscene material in the home – the 12 rolls of film he’d brought into the U.S. from Mexico – creates a right to acquire it or import it.

“So I said, ‘We’ve moved a long way since 1973 and ’74 and starting with the decision in Lawrence, it now seems clear that I have the right to find different ways to sexually arouse myself and to pick those ways out as long as I’m doing it privately,’ Sirkin answered. “I said, ‘Just think that 30 years ago, we would have never seen an ad for Viagra, and to think today we see it with Senator Dole advertising it, and we now recognize that sex is not only for procreation but for some sense of enjoyment, and therefore, I have that corollary right not only to possess the material at home, but to be able to purchase it and for someone to sell it to me for what in essence may be some stimulation.’”

Sirkin was overjoyed at how receptive Judge Lancaster seemed to be to that argument.

“The government got up and tried to keep arguing about Stanley v. Georgia and the privacy of one’s own home and all that, and freedom of speech, and that ‘the Supreme Court has clearly ruled’ – and the judge said, ‘Wait a minute; Mr. Sirkin’s not talking about the First Amendment; he’s talking about substantive due process. He’s talking about a liberty interest. Now answer that. What is the compelling governmental interest to be protected in keeping people from having this?’

“And they started with the hedging and hawing; you know, the typical, ‘Well, it could get into the hands of kids,’ and the judge said, ‘We’re not talking about in the hands of kids; we’re talking about people that are consenting adults who ordered it.’”

“One of the examples the judge used,” Sirkin continued, “was, ‘You’re saying, under Stanley, they can possess and think it, but let me give you this example: It’s okay for me to read the Communist Manifesto in my home, but how do I read it if I can’t get it? That’s like saying there’s a bunch of reporters in the courtroom right now, and they can write about this whole thing, everything they hear in here today, and go back and do this article, but you know what? If they can’t buy ink, they can’t do it, can they? It’s a point about having some right to do something
that’s meaningless.’”

Although Monday’s hearing was supposed to consist solely of arguments on the various motions filed by the parties, Judge Lancaster allowed the government to present two witnesses: An Internet expert who testified that Extreme Associates could have used existing “geo-locator” technology to prevent Web surfers from accessing allegedly obscene video clips available on Extreme’s Website, and a U.S. postal inspector who claimed that the company knew not to mail sexually explicit materials to the Pittsburgh area.

“They put on the postal inspector to say that when they executed the search warrants at Extreme, they found a chart on the wall that said, ‘Don’t ship to these areas; only by UPS,’ Sirkin recounted. “The guy was trying to make the insinuation that those were no-mail areas, and I objected, and the guy said, ‘Well, I assume the reason they did that was that they didn’t realize that it’s also a crime to use a common carrier; they thought you just don’t mail to these areas.’

“I objected to that, saying, ‘That’s what he’s assuming. The document says you send to these areas by UPS, so that doesn’t mean you don’t send to those areas.’ And the judge said to the Assistant U.S. Attorney, ‘What are you trying to prove? Do you want to put the document on? Put it on. Don’t let people tell me what it doesn’t say. It says send it by UPS; it doesn’t say not to send it there. So the document, I’ll let in for whatever purpose.’”

In all, the day’s arguments only took an hour, but “it was great; it really was,” Sirkin summarized. “We haven’t set any trial date; the judge is really going to study this, and he’s also fascinated by what the implications of COPA is, even though it’s back on remand, because he still feels that the questions about community and ‘taken as a whole’ are still out there, and they are still out there.”

“The court was really receptive and had really read the memo on the motion to dismiss on the Lawrence concept, on the substantive due process, and he had some really probing questions... I think I used the term, ‘We’ve come a long way, baby, from then, and it’s time to re-look at it in light of where we are today,’ and I think that’s what really happened in Lawrence, when they re-looked at Bowers.

“It’s a different time, and the Supreme Court certainly recognized it in the opinion of Justice Kennedy, and I think it’s unarguable; it’s the logical next step, and I think we’re right in tune. And at least he [Judge Lancaster] listened and he didn’t blow us off. It was a nice experience.”

On the request of Buchanan, both sides have 45 days within which to file briefs in support of their in-court arguments and to answer questions propounded to both sides by Judge Lancaster. A decision on the motions will come sometime after that, but Sirkin said he could not predict when.

However, if there are any charges still pending after the judge’s ruling, a trial could not start before mid-2005.