Extreme Associates trial may be catalyst for change

The Pittsburgh Post Gazette will be the new Tampa Bay Tribune as the next big adult industry obscenity case- this one involving Rob Black - readies up for March.

from the Pittsburgh Post Gazette- The company under indictment for selling obscenity is in California.

The undercover agent who ordered the product is in Pittsburgh.

The material was carried on a computer network across the country and possibly around the world.

So what community standards should be used to determine if a crime was committed?

That was a question faced recently by a federal court judge in the ongoing case of United States vs. Extreme Associates, a company based in North Hollywood that makes graphic pornography featuring scenes of rape, torture, murder and defecation.

The trial of Extreme Associates begins March 16 before U.S. District Judge Gary L. Lancaster -- more than five years after the original indictment was brought on charges that the owners of the company, Robert Zicari, and his wife, Janet Romano, transported obscene materials across state lines.

Jurors will be forced to answer three questions in their deliberations: Are the materials patently offensive? Do they appeal only to prurient interests? Do they have any serious artistic, literary, social or political value?

The first two questions must be answered through the lens of "contemporary community standards."

When the U.S. Supreme Court established current obscenity law in its 1973 decision in Miller vs. California, it did not go about defining those standards. Since then, with the pervasiveness of cable television and the advent of the Internet, some experts argue that contemporary community standards have very likely changed, and the law should reflect that.

The Extreme Associates trial could be the catalyst.

H. Louis Sirkin, [pictured] a well-known obscenity lawyer who represents the defendants, argued to Judge Lancaster that the standards of cyberspace rather than community standards of Western Pennsylvania should be used to gauge his clients' conduct.

"We just think it's an outdated concept with the Internet," Mr. Sirkin said. "In 1973, there was a difference between New York and Jackson, Miss.

"The country is not as isolated as it once was."

Indeed, Jeffrey Rosen, a constitutional law professor at George Washington University in Washington, D.C., has written about studies that show the same levels of consumption for pornography in places as wide-ranging as Salt Lake City and Las Vegas.

"Even in the most conservative communities, it's downloaded or watched in hotels as much as in the racy communities," he said.

Jeffrey Douglas, a California attorney who's tried four obscenity cases, has presented evidence in court comparing Google searches for sex terms performed in a particular community against wholesome things such as apple pie and football heroes.

Searches for wholesome things, Mr. Douglas said, came back "a magnitude smaller." Mr. Rosen and Mr. Douglas are not involved in the Extreme case.

"Nothing was remotely similar," he said. "The problem for prosecutors is that [the Internet] community is incredibly tolerant."

But Judge Lancaster, who once dismissed the Extreme Associates case only to be overturned by the 3rd U.S. Circuit Court of Appeals, ruled earlier this month against using an Internet standard in the case.

In his opinion, ordering that the case be determined using standards of the community of Western Pennsylvania, the judge said using the defendants' concept of an online standard would be an "expansion of existing law."

And that hasn't seriously happened in the realm of obscenity in 35 years.

Since Miller was decided, the Supreme Court has not given much new direction on the issue of community standards.

It had the chance in a 2002 case regarding the Child Online Protection Act. But the justices split in their decision, ending up with no true majority, although five of them agreed -- all for different reasons -- that there could be a national standard.

"When you get a situation where the Supreme Court is splintered, and you can't get five people to agree on the reason for something, it's a signal that the law is unsettled," said Reed Lee, a First Amendment lawyer in Chicago.

But then he added, "You prefer it unsettled as opposed to settled against you."

Mr. Rosen believes the Supreme Court must address the issue eventually.

"It's disappointing that at least five justices blithely assume there can be national standards without giving any guidance as to how that can be done," Mr. Rosen said.

In terms of free speech, he added, a national standard would be better than sticking with a local one.

Mr. Lee, who is a member of the board of directors for the Free Speech Coalition, said he's not sure when the court might address the issue again because he doesn't believe it's a priority.

But, he added, if there's a conviction in Extreme Associates -- and there was another recently in a similar case in Florida -- that could ultimately end up in a split among appellate circuit courts.

That might mean the Supreme Court would feel obligated to take on the issue.

Throughout the government's response to Extreme Associates' motion, prosecutors cited precedent from the 6th U.S. Circuit Court of Appeals in 1996. The court found that in cases involving interstate transportation of obscenity, jurors should apply the standards of the community where materials were sent.

"Courts have repeatedly found that those who use an inherently national medium, whether mail, telephone line or Internet, to reach a nationwide audience are responsible for complying with legal judgments in the different communities that receive their message," wrote Assistant U.S. Attorney Stephen R. Kaufman.

But with the Internet, it is impossible to put geographic limitations on where material can be viewed. So that would mean, then, that distributors of the material would have to tailor it to the most strict community standard.

That, Mr. Douglas said, is precluded by the Supreme Court's Miller decision.

"Miller says it's unacceptable for either the most liberal or the most conservative community to dictate the standard," he said.

Further, he continued, it's foolish to think there is such a thing as "community standards."

"Individuals have standards," Mr. Douglas said. "Communities don't have standards."

But there's another thing defense lawyers have to worry about in terms of individual standards: It's very difficult for jurors to talk openly about sex.

"You can rest assured the one thing that is certain is people don't talk openly about their own sexual fantasies," Mr. Douglas said. "Therefore, it is impossible to know what the people you work with, commute with and even live with think is a community standard."

Mr. Sirkin didn't argue for a national -- or cyberspace -- standard to be used because he's afraid of what jurors in Western Pennsylvania might decide, he said.

Instead, he said he made the argument in hope of forcing a change in the law.

"If I were in New York City or Los Angeles trying a case on obscenity, I'd be saying the same thing. The concept has changed," Mr. Sirkin said.

Mr. Rosen, who has written extensively on obscenity, said the notion of community standards didn't make sense in the 1970s.

"Now," he said, "the combination of the shift in norms and changing technology makes the incoherence even more glaring."