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."