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.
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."