Posted on 01/30/2005 12:58:29 PM PST by wagglebee
With the public rise of the values voter, efforts against judicial activism have also been gaining ground. One person likely to find himself at the center of this debate is U.S. District Judge Gary Lancaster, who as recently as August advocated for judicial restraint: "Far be it for a district judge to, at best, misinterpret and at worst, appear to overrule the U.S. Supreme Court."
Late last week, however, Judge Lancaster dismissed United States v. Extreme Associates, declaring federal obscenity statutes unconstitutional and tossing out three decades of Supreme Court precedent. So much for judicial restraint.
The case centered on two pornographers, Robert Zicari and his wife, Janet Romano, who produce and sell hard-core sex videos depicting the rape, mutilation and murder of women. Shortly after appearing on a 2002 Frontline documentary, Zicari and Romano found themselves and their company, Extreme Associates, under federal investigation for posting obscene video clips online and sending obscene videos to an undercover postal inspector.
The issue was not whether or not the videos were obscene. The defense apparently didn't dispute this. Their argument was that if Americans have the right to possess obscene material in their home, which the Supreme Court affirmed in Stanley v. Georgia, there must also be a correlating right to transport or distribute such matter to the home.
Judge Lancaster agreed. He wrote: "We find that the federal obscenity statutes burden an individual's fundamental right to possess, read, observe and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials."
Drawing heavily from the Supreme Court's Lawrence v. Texas decision overturning that state's anti-sodomy laws, Lancaster argued that all morality must now be divorced from the legal square.
He wrote, "We find that after Lawrence, 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."
Unfortunately, Judge Lancaster confuses Lawrence's protection of private consensual matters in the home with those conducted in public. Lawrence did not suddenly overturn public decency laws. Public sexual matters can still be prohibited, and this is what was at stake in the Extreme case. Whether showing obscene videos in public or using public common carriers, such as the mail or the Internet, to transport them, these actions extend beyond any zone of privacy protected by law.
This private/public distinction is clearly established in obscenity case law. In United States v. Orito, the Supreme Court wrote, "Congress has the power to prevent obscene material, which is not protected by the First Amendment, from entering the stream of commerce. The zone of privacy that Stanley protected does not extend beyond the home."
The Court has spoken equally clearly on this issue in other cases: Paris Adult Theatre I v. Slaton, United States v. Reidel, United States v. 12 200-ft. Reels of Film, and even Stanley v. Georgia, upon which Lancaster heavily relies for his ruling.
Ignoring these rulings does not make them go away. When Lancaster finally wakes up from his Constitution-rewriting bender, he's going to discover this kind of contrived ruling is not likely to sit well with the rest of the legal community, even the activist-minded 3rd Circuit Court, which would hear any appeals.
Even if judicial activism isn't in your top five causes, a case like this demonstrates more clearly than ever the choice facing all Americans: Either champion a judiciary whose vision of liberty requires the proliferation of "entertainment" depicting the rape, torture and murder of women, or one which understands and agrees such material has no connection to human freedom.
How about reining in the federal government?
Seems to me that is was sham judges that gave the federal government the power to regulate pornography.
Now I don't mind states doing it. They have powers reserved to them by the 9th and 10th amendments. But where in the constitution does the federal goverment get the power to regulate pornography?
The Lawrence ruling is going to be used as a justification for every immoral behavior imaginable.
It can also be used to justify moral behavior, but it probably won't.
How about reining in the federal government?
Good point, but then you have to remove the state Judges who are activists constitution breakers.
And How is reigning in the government to be accomplished?
Only the Supreme Court (and Congress by amending the Constitution) can "toss out" SCOTUS rulings and precedents. WND doesn't have a clue as usual.
By doing what this so-called "activist" judge is doing: taking away powers they never had in the first place.
That's what really bugs me about this article: the judge negates the activist judges' ruling, and because some people don't like the result, now HE'S called the activist judge.
Yes, but I would like to point out that rape, torture, and murder are common elements of non-pornographic entertainment too in the USA, 2005 (and 2004, 2003, 2002, ...)
Frankly, I'd like to see a return to censorship, if I could get the kind of censorship I want. Unfortunately, with the current clowns in charge, Mel Gibson's Passion would get censored, while Ken does Lucy with a Hot Poker would raise not an eyebrow.
It's going to take a cultural revolution, probably inspired by a depression, to correct our course of decline.
American men cira 1776 would have kicked that guy's @$$!
Remember Canterbury Tales?
I believe that would be the Miller's tale?
If I recall correctly, yes.
There was once a children's book (illustrated by Lee Lorenz) which was loosely based upon this plot, called Pinchpenny John.
In the children's book, he is a miserly father who cannot let go of his daughter, making her an easy for a traveling con man. Once the plot is discovered, he relents and both he and daughter live happily ever after.
Cheers!
Ping to self for later pingout.
Denny Crane: "I want two things. First God and then Fox News."
I have said many times that there is NOTHING in the Constitution which gives the judiciary the right to determine what is or isn't Constitutional, they seized this power with Marbury and nobody ever questioned it.
Moral Absolutes Ping.
I find these statements compelling:
***Drawing heavily from the Supreme Court's Lawrence v. Texas decision overturning that state's anti-sodomy laws, Lancaster argued that all morality must now be divorced from the legal square.
He wrote, "We find that after Lawrence, the government can no longer rely on the advancement of a moral code..."
***"Even if judicial activism isn't in your top five causes, a case like this demonstrates more clearly than ever the choice facing all Americans: Either champion a judiciary whose vision of liberty requires the proliferation of "entertainment" depicting the rape, torture and murder of women, or one which understands and agrees such material has no connection to human freedom."
Let me know if anyone wants on/off this pinglist.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.