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United States v. Extreme Associates

December 8, 2005

UNITED STATES OF AMERICA, APPELLANT
v.
EXTREME ASSOCIATES, INC.; ROBERT ZICARI, AKA ROB BLACK; JANET ROMANO, AKA LIZZIE BORDEN



On Appeal from the United States District Court for the Western District of Pennsylvania. District Court No.: 03-cr-00203. District Judge: The Honorable Gary L. Lancaster.

The opinion of the court was delivered by: Smith, Circuit Judge

PRECEDENTIAL

Argued October 19, 2005

Before: SMITH, STAPLETON, and NYGAARD, Circuit Judges

OPINION

This appeal requires us to decide whether the District Court erred by dismissing an indictment brought against Extreme Associates, Inc. and its proprietors under 18 U.S.C. §§ 1461 and 1465, which criminalize the commercial distribution of obscene materials, on the ground that those statutes violate the privacy rights of Extreme Associates' customers under the Fifth Amendment doctrine of substantive due process. Because we conclude that the District Court improperly set aside applicable Supreme Court precedent which has repeatedly upheld federal statutes regulating the distribution of obscenity in the face of both First Amendment and substantive due process attacks, we will reverse the judgment of the District Court.

I.

A.

The parties do not dispute the relevant facts. Extreme Associates, Inc. is a California corporation owned and operated by Robert Zicari and Janet Romano.*fn1 Extreme Associates maintained a website through which it engaged in the business of producing, selling, and distributing obscene video tapes, DVDs, and computer files in interstate commerce.*fn2

As part of an investigation, undercover U.S. Postal Inspectors visited the Extreme Associates website. The Inspectors found that the website was divided into two sections, one accessible to the general public, and one available to members only. Members were required to register and to pay $89.95 to gain access to the website for ninety days. From the members-only portion of the website, a member, inter alia, could download and view video clips. The general public could order tapes for delivery by mail through the public portion of the website. In the course of the investigation, Postal Inspectors purchased certain videotapes from the public section of the website, which Extreme Associates delivered through the U.S. mails to undercover addresses. Inspectors also joined the members-only section of the website and downloaded and viewed several video clips.

On August 6, 2003, a federal grand jury returned a ten-count indictment against Extreme Associates. The first count was a conspiracy charge under 18 U.S.C. § 371*fn3 charging Extreme Associates with conspiring to violate 18 U.S.C. §§ 1461*fn4 and 1465*fn5 by distributing obscene material through the mails and over the Internet. The remaining counts charged substantive violations of §§ 1461 and 1465 and alleged particular acts of distributing obscene materials in interstate commerce via the mails and the Internet.

On October 9, 2003, Extreme Associates filed a motion to dismiss the indictment on the ground that the "federal obscenity statutes"*fn6 violate the right to privacy protected by the Due Process Clause of the Fifth Amendment. After briefing and a hearing, the District Court declared the federal statutes regulating the distribution of obscenity unconstitutional as applied to Extreme Associates and dismissed the indictment in a Memorandum and Order on January 20, 2005. The Government appealed the dismissal.

B.

The analytical path taken by the District Court in dismissing the indictment warrants particular attention. The District Court began by concluding that Extreme Associates had derivative standing to challenge the federal statutes regulating the distribution of obscenity on behalf of its customers. Turning to the merits, the Court noted that in Stanley v. Georgia, 394 U.S. 557 (1969), the Supreme Court recognized the First Amendment right of an individual to possess, read, observe, and receive obscene materials in the privacy of that individual's home, and that such a right is "fundamental" under the Constitution. Because the Stanley Court also spoke of a privacy right having to do with Stanley's home, the District Court opined that the case "represents a unique intersection between the substantive due process clause's protection of personal liberty and privacy and the First Amendment's protection of an individual's right to receive, and consider, [sic] information and ideas."

The District Court acknowledged that the Supreme Court has refused to strike down the federal statutes regulating the distribution of obscenity, or to recognize, as a corollary to the right recognized in Stanley, a First Amendment right to distribute obscene material. The District Court, however, adopted the position advocated by Extreme Associates that Stanley and its progeny, i.e., United States v. Reidel, 402 U.S. 351 (1971), United States v. Thirty-Seven (37) Photographs, 402 U.S. 363 (1973), United States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123 (1973), United States v. Orito, 413 U.S. 139 (1973), and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), were decided solely on First Amendment grounds rather than on privacy grounds under the Substantive Due Process Clause. The District Court also agreed with Extreme Associates that the above cases are factually distinguishable from the case at bar in that they dealt either with the importation of obscene material from abroad or involved methods of distribution that were more "public" than the Internet transmissions at issue here.

Noting that Extreme Associates sought to challenge the statutes not on its own behalf but on behalf of the individual privacy rights of its customers, the District Court concluded that because "[n]either the Supreme Court nor the Court of Appeals for the Third Circuit has considered a substantive due process challenge to the federal obscenity statutes by a vendor arguing that the laws place an unconstitutional burden . . . on an individual's fundamental right to possess and view what he pleases in his own home," Extreme Associates' challenge was not precluded by the Reidel/Orito line of cases. According to the District Court, the instant case is controlled instead by Griswold v. Connecticut, 381 U.S. 479 (1965), Roe v. Wade, 410 U.S. 113 (1973), and their progeny.

Because Extreme Associates based its substantive due process challenge on the existence of a "fundamental" right, the District Court applied strict scrutiny to the federal statutes regulating the distribution of obscenity.*fn7 The Court concluded that, under such heightened scrutiny, the statutes could not stand as applied to Extreme Associates because they were not narrowly drawn to advance any compelling government interest. Indeed, the ...


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