On the same day that President Bush was inaugurated for his second term, a federal court in Pittsburgh was handing him a major legal defeat on one of those "moral value" issues that helped return him to office. In what could be a crushing blow to his administration's stated goal of ramping up prosecutions of those who traffic in extreme pornography, a federal judge declared the government's anti-obscenity laws unconstitutional.
With an emphasis on the 2003 Supreme Court decision striking down Texas' laws against homosexual sodomy, U.S. District Judge Gary Lancaster of western Pennsylvania ruled Thursday that "the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd and lascivious thoughts as a legitimate, let alone a compelling, state interest."
This could severely complicate the plans of Attorney General-designate Alberto Gonzales, who recently informed the Senate that if confirmed as attorney general, he intends "to make the investigation and prosecution of obscenity one of my highest criminal enforcement priorities." During his confirmation hearings, Gonzales said that "obscenity is something else that very much concerns me. I've got two young sons, and it really bothers me about how easy it is to have access to pornography."
Lancaster dismissed obscenity charges this past week in the federal government's first major prosecution for obscenity in more than a decade, the United States of America vs. Extreme Associates. In August 2003, pornographers Rob Zicari and his wife, Janet Romano -- aka Rob Black and Lizzie Borden -- were indicted for 10 counts relating to the production and distribution of obscene materials, facing up to 50 years in prison and a fine of $2.5 million.
Mary Beth Buchanan, the U.S. attorney for western Pennsylvania who prosecuted the case, told ABC News in 2003 that the Bush administration saw its prosecution of Zicari as pivotal.
"In the last 10 years, we've really had very little, if any, prosecution of the federal obscenity laws," she said. "And because of that, the material that is being distributed today is far worse than any material that had been previously distributed. And it's really gotten out of hand."
After Thursday's decision, Buchanan issued a written statement that she was "very disappointed by the court's decision to dismiss the indictment."
Buchanan said her office continues "to believe that the federal obscenity statues are valid and constitutional" and that her team of lawyers was "reviewing our options, which could include an appeal to the United States Court of Appeals for the Third Circuit."
Reached in Los Angeles, Zicari was ecstatic about the decision. He will give an exclusive interview to ABC News on the subject for tonight's "Nightline" broadcast.
Extreme Associates bills itself as the hardest hard-core porn on the Web. "Forced Entry" features three graphic scenes of simulated rapes and killings. The women are also spat upon. "Extreme Teen 24" has adult women dressed up and acting like little girls in various hard-core scenes.
Paul Fishbein, president of Adult Video News, the trade journal of the pornographic film industry, said Zicari produced "horrible, unwatchable, disgusting, aberrant movies." Nonetheless, Fishbein said were he judging the case he'd have to rule that they "were not obscene, because the First Amendment is pure and has to remain pure."
"You might not like what you had just seen," Zicari told ABC News before his arraignment. "It might have disturbed you, it might have repulsed you, it might have given you all sorts of emotions. But are you going to limit and be that person that has the right to say 200 million other citizens cannot watch that because you don't like it?"
In an interview with ABC's Ted Koppel, Andrew Oosterbaan, chief of the Child Exploitation and Obscenity section of the Justice Department, said that was precisely the decision of the local community.
"Under the law of obscenity, it's the community's job to draw that line," he said. "What prosecutors do in investigating obscenity cases, especially considering how vast the problem seems to be ... is finding a way to make a difference in the environment that we face right now. And the Extreme Associates case shows just how egregious the conduct can be."
In some ways, Zicari asked for the government's attention. In a February 2002 episode of PBS' "Frontline," Zicari talked about the taboo nature of his films. In the transcript of that interview, posted on the "Frontline" Web site, Zicari stated, "We've got tons of stuff they technically could arrest us for. I'm not out there saying I want to be the test case, but I will be the test case. I would welcome that. I would welcome the publicity. I would welcome everything to make a point in, I guess, our society."
Buchanan told ABC News: "Zicari's statements on the 'Frontline' edition and the transcript of those interviews were very helpful for law enforcement to be able to assess what Rob Zicari's intent was. It helped us to determine that this was not a producer who was trying to comply with the law. This is not a producer who wanted to make sure that his products wouldn't violate the community standards. What we learned from this interview is that Rob Zicari intended to violate federal law."
On Sept. 5, 2002, U.S. postal inspector Joseph McGowan went to Zicari's Web site, where he registered as "Kim Wallace," providing name, address and credit card information. He paid $89.95 to join the organization for three months.
McGowan and other postal inspectors then viewed some clips from the Web site, including some from an area of the site called "The Piss Zone." McGowan also ordered three videotapes from the company, which were sent to an undercover postal agent in Pittsburgh.
On April 8, 2003, law enforcement seized five movies at Extreme Associates in Los Angeles. The search warrant from that time referred to the "Frontline" episode as a place where Zicari "issued a challenge to Attorney General [John] Ashcroft," saying that Ashcroft "could not do anything about his films." Zicari told ABC News that the language of the warrant indicated Ashcroft was waging a "vendetta" against him.
On Aug. 6, 2003, a federal grand jury in Pittsburgh returned a 10-count indictment against Extreme Associates Inc., for violating federal obscenity statutes by distributing, either through the mail or over the Internet, films judged obscene.
Since then, federal prosecutors have pursued similar cases. In March 2004 in Texas, a former Dallas police officer, Garry Layne Ragsdale, and his wife, Tamara Michelle Ragsdale, were convicted on charges relating to distributing obscene material from their business, labeled on their Web site as "the real rape video store." U.S. District Judge Sidney A. Fitzwater sentenced them to 33 months and 30 months in jail, respectively.
In July 2004 in Ohio, a couple pleaded guilty to a seven-count indictment relating to the selling or transferring of obscene material including some involving defecation, urination and bestiality. In November 2004, U.S. District Judge Paul R. Matia sentenced Ronald Urbassik to one year and one day in prison, as well as a $3,000 fine; his wife, Alina Urbassik, was sentenced to four months in prison.
The Court Case
Oral arguments in the case were heard on Nov. 1, 2004. Zicari's attorney, H. Louis Sirkin, repeatedly cited the Supreme Court's Lawrence vs. Texas ruling, noting that "the right to privacy really goes nowhere if I have no way to get it." Sirkin pointed out that the world has changed quite a bit since the "community standard" test was first established, in large part because of the Internet.
But Assistant U.S. Attorney Stephen Kaufman pointed out that though the Supreme Court has long ruled in favor of an individual's right to privacy, it has not ruled in favor of the right of individuals to produce and traffic in obscene materials.
"If you have the right to possess, does that mean someone else has a correlating right to distribute?" Kaufman asked. "The cases say no."
But Lancaster wondered if there was an inherent contradiction in an idea that Americans can possess obscene materials, but they cannot legally distribute them. Noting the First Amendment right of reporters covering the case to criticize him or Kaufman in print, he asked if the government could also find a way around that.
"Could you pass a law preventing the sale of ink?" Lancaster asked pointedly.
Ultimately, Lancaster's ruling leaned on two U.S. Supreme Court cases. One of them was Stanley vs. Georgia, a 1969 case involving an alleged bookmaker in whose home police found three reels of eight-millimeter pornographic material.
"If the First Amendment means anything," Justice Thurgood Marshall said in the 1969 majority decision, "it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."
The other case was Lawrence vs. Texas, which conservatives warned at the time would have much more far-reaching implications than just the Texas anti-sodomy law.
"The nation's obscenity laws cannot stand in light of Lawrence," Lancaster wrote.
Though Chief Justice William Rehnquist, and Justices Clarence Thomas and Antonin Scalia offered a dissenting opinion in Lawrence vs. Texas, in which they argued for a state's ability to establish a "moral code" of conduct, they were in the minority. The Lawrence decision, Lancaster wrote, "can be reasonably interpreted as holding that public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct even if that conduct is deemed offensive to the general public's sense of morality."
Lancaster also found that federal anti-obscenity laws were drafted too broadly. Kaufman argued that the government's stated interest was to prevent minors and unwitting adults from being exposed to obscene materials. But Lancaster concluded that applied to the Extreme Associates case, "the federal obscenity statutes violate the constitutional guarantees of personal liberty and privacy of consenting adults who wish to view defendants' films in private."
Children and unwitting adults are adequately protected from the materials, Lancaster ruled. To receive them, one would have to access the defendants' Web site and join the members-only section, which requires a name, address and credit card.
"[O]nly those individuals who want to see defendants' films, indeed, want to see them badly enough that they are willing to pay to see them, are able to do so," Lancaster said.
There are adequate protections for children out there currently, he said, with software available for parents and schools to keep children off such Web sites, and the Federal Communications Commission judging that requiring payment by credit cards effectively restricts minors' access to porn phone lines, since such cards are not generally issued to minors.
Justice Department officials said they were reviewing the ruling and had no further comment beyond Buchanan's written statement.
ABC News' Jason A. Ryan and Rebecca Bershadker Kennedy contributed to this report.