John Ashcroft vs. Rape Porn: 1st Ammendment case ruling and winner is...

dotadave · Jan 25, 2005

Government loses test of obscenity laws
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Case involves films of women being abused
Saturday, January 22, 2005 - Pittsburgh Post-Gazette

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The Justice Department yesterday lost the first major test of obscenity laws in at least a decade when a federal judge in Pittsburgh threw out an indictment of Extreme Associates, which sells films of women being gang-raped, defecated on and having their throats slit.

U.S. District Judge Gary Lancaster dismissed charges of distribution of obscene materials brought here last year against the California company and its owners, Robert Zicari, 31, and his wife, Janet Romano, 27.

In a 45-page opinion, the judge said the federal obscenity statutes as applied in the case violate constitutional protections of liberty and privacy. The statutes say possession of obscene materials is legal but distribution of them is not.

In essence, the judge said that the government ban on distribution of obscenity illegally infringes on the people's constitutional right to possess it.

"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," Lancaster wrote.

The decision was a victory for the pornography industry but a blow for the Justice Department and U.S. Attorney Mary Beth Buchanan, who brought the indictment in August 2003 after an investigation by Los Angeles police and U.S. postal inspectors in Pittsburgh.

"We are very disappointed by the court's decision to dismiss the indictment," Buchanan said in a statement from Washington, D.C. "As we set forth in the pleadings we filed in the case, we continue to believe that the federal obscenity statutes are valid and constitutional, including as applied in this case." She said her office is considering an appeal.

Zicari didn't return a call yesterday, and various defense attorneys were still digesting the opinion, but they were gratified that Lancaster accepted Extreme's position in granting a motion to dismiss.

"Certainly we're pleased with the outcome," said attorney Jennifer Kinsley of Cincinnati, one of the company's lawyers. The case was based on the "Federal Five," Zicari's term for the five hard-core porn movies on which Buchanan's staff built its case. No one argued that the videos are obscene. The sex in the films is real, although the killings are simulated.

After a hearing before Lancaster in November, Zicari defended himself and his company, saying he is only selling what people want. "We're not talking about bestiality and child pornography," he said. "We're talking about consenting adults." In court, Extreme Associates attorney H. Louis Sirkin had argued that the right to view porn is infringed if people can't get the films anywhere.

"If I can't buy them, there really is no right," he said. "In order to be able to possess it, I need to be able to buy it." Sirkin said Americans' sex lives are none of the government's business. He based part of his argument on the famous case of Lawrence v. Texas, in which the Supreme Court ruled that a prosecution of two men for having sex in their home violated the constitution.

Buchanan and Assistant U.S. Attorney Stephen Kaufman said the Lawrence decision doesn't apply because the Extreme Associates prosecution is about a porn company selling violent sex films for profit, not an invasion of anyone's privacy.

But in his opinion, Lancaster said that after the Lawrence case, "the government can no longer rely on the advancement of a moral code, preventing consenting adults from entertaining lewd or lascivious thoughts, as a legitimate, let alone compelling, state interest."

Kaufman also had argued that Supreme Court case law supports the prosecution. "If you have the right to possess, does that mean someone else has a correlating right to distribute?" he said. "The cases say no."

He cited a 1973 Supreme Court case in which a man was prosecuted for carrying obscene material into the country from Mexico. The high court rejected the man's argument that the right to possess obscene material in the home creates a right to acquire it or import it.

But Lancaster gave a hint of how he might rule when he grilled Kaufman on why the government brought the case in the first place. Kaufman said the state interest is to prevent the distribution of obscene materials in communities that object to them and to protect children and unwitting adults from exposure to obscenity. He said people are free to have any kind of sex they want in private, but "the crime is in filming and distribution of that sexual conduct."

Lancaster disagreed, and the dispute is almost certainly headed for the 3rd U.S. Circuit Court of Appeals.

The Zicari case represented a renewed effort by the Justice Department to combat what it sees as the proliferation of extremely hard-core and violent pornography. Buchanan has said the government all but abandoned its policing efforts in the 1990s, and in the meantime the industry has mushroomed and become increasingly accepted as part of American culture.

Zicari and Romano aren't the only defendants being pursued. In Texas, federal prosecutors last summer indicted a former Dallas police officer and his wife on charges of selling rape videos online. And in West Virginia, a couple pleaded guilty last year to mailing videos depicting sexually explicit scenes that included defecation and urination. But the Zicari investigation, which began with a Los Angeles Police Department probe, was seen as a benchmark.

Zicari, who calls himself Rob Black, and Romano, who goes by the name Lizzy Borden, had vowed to go to trial and remained defiant in denouncing what they see as government intrusion into Americans' sex lives.

Zicari, who has taunted the LAPD and the federal government on national television, had bragged that he was still in business and will keep doing what he does.
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I have mixed feelings on this. Rape porn is not fucking cool in my book. It's offensive to me and if I happen to stumble upon it while looking for something else its a huge turn off. Hell, even beatiality fetishes aren't this bad. That said, these aren't snuff films, what is depicted in them are simulated rapes between consenting actors and I would rather someone with this perverse fetish to get off on this than trying it for real. I think its protect speech. There have been many movies (and even a simpsons episode) featuring simulated rape and it would be impossible to separate legitimate artwork from so called pornography. Then there is the privacy issue. When people do this in private, its not really the governments business to tell them not to.

What do you think?

juggla · Jan 25, 2005

rape porns not bad, its not like the chicks are actually getting raped its all acting.

Sera Michele · Jan 25, 2005

I think it is extremely distasteful and I think that the people that get off to this stuff have issues they need to work through.

That being said, I am extremely supportive to someone's right to privacy. I feel like our right to privacy is slowly being stripped away (the supreme court just ruled it legal to use drug dogs for any traffic stop) and it appals me. If protecting simulated rape porn is what I have to put up with to protect our freedoms and civil liberties, then it's fine by me.

Applespark · Jan 25, 2005

Whatever people manifest their energies in that's what the world will be like.
Rape isn't funny and when taken lightly creates more of the same.

The drug dog thing..now that's really over the line. In my opinion. That's like saying hay forget asking you if we can search your car and letting you abide by the laws and say I do not consent...our dogs give you no choice in the matter.

Sera Michele · Jan 25, 2005

Not to mention all money has trace amounts of cocaine on them...and drug dogs have a very high rate of inaccuracy.

Maggie Sugar · Jan 25, 2005

This is not the first time snuff films have been ruled obscene and have been controlled by the government.

That said, these aren't snuff films, what is depicted in them are simulated rapes between consenting actors and I would rather someone with this perverse fetish to get off on this than trying it for real.
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I'd like to see something which substantiates this. MANY serial killers, especially sadistic, torture killers, have admitted they used films like these to get hyped for their crimes and to give them ideas and to desensitize them to the brutality. In many studies, even normal people get desensitized to torture of womyn when shown films like these.

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John Ashcroft vs. Rape Porn: 1st Ammendment case ruling and winner is...

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John Ashcroft vs. Rape Porn: 1st Ammendment case ruling and winner is...

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