Obscenity Law Upheld:
As I expected, the Third Circuit has reversed the January district court decision striking down a federal obscenity statute. The Court's opinion in United States v. Extreme Associates is available here.
Features
Stuff from us
Academic Legal Writing: personalized bookplates
Sources on the Second Amendment
If the 9th amendment protects individuals against state intrusion into the bedroom regardless of the putative obscenity of their acts, how can a locus of interstate commerce strip away that protection? Again, it seems backwards.
Doesnt this mean that thousands of porn sites and mail distributors are now threatened with federal action? What distinguishes them from this distributor? The porn doesnt appear to have been any kinkier or obscene than garden variety internet porn.
The key point is that the parties stipulated for puirposes of the motion to dismiss that the material was obscene. The opinion doesn't really say what the materials were. If they were garden-variety porn, then the defendants very likely might prevail on First Amendment grounds at the close of the government's case. But I think the Third Circuit is quite right that Supreme Court precedent pretty clearly provides that there is no First Amendment protection for obscenity. Of course, the famouns "I know it when I see it" standard is what led to the weekly porn watching sessions by the Supreme Court that is described in "The Brethren."
I think I see the distinction now.
I think Extreme ultimately wants a reconsideration of the obscenity laws in the Supreme Court. I think the Third was right that it had no authority to reconsider those laws in light of the applicable precedent, but the District Court was right that in light of other recent Supreme Court cases, the Court's holdings in the obscenity cases are hard to reconcile.
Whether it is a "workable" idea or not, the Third Circuit is in fact an inferior court and it is bound to follow what the Supreme Court has said.
Most Supreme Court decisions are not explicitly overturned but rather implicitly so - to require explicit overturning would destroy federal stare decisis, since it would recreate thousands of conflicts where they had thought to have been settled.
Extreme Associates' product is absolutely not "garden variety" porn. It's the gold-standard of the most extreme material available, and they're widely shunned by the rest of the porn community. One of their most popular series, "Cocktails", involves women drinking glasses of vomit and other bodily fluids. In their best-selling movie, "Forced Entry", the storyline is about a serial killer who rapes and kills women, including a pregnant woman. The actresses in the film are slapped, spit and urinated upon, beaten, and violated in every orifice, while sobbing and screaming and begging for mercy. Now granted, these actresses are consenting to be in the movies, but this isn't just a horror movie - this is sold for people to masturbate to. Interestingly, the producer of the movies is a woman.
If you want to read more about the product, there's a Salon article here:
Salon Extreme Associates Article
The material may or may not change your constitutional analysis, but people should at least be aware of what it is before making conclusions.
I'm not sure I understand your argument. In this case, the same statutes were challenged on the same grounds and upheld by the Supreme Court. But you seem to suggest that in the name of federal stare decisis and uniformity, the Third Circuit should decide that these cases were "implicitly overruled" by other cases not dealing with the same statutes nor identical issues.
I don't see how circuit courts deciding to overrule Supreme Court precedents in such circumstances would promote stare decisis and uniformity.
Ithe many cases where the court does not explicitly overrule a broad holding but effectively does, or significantly expands the previous paradigm (as they arguably did in Lawrence), the Circuit could must reevaluate certain precedents of the Supreme Court in light of more recent but broader Supreme Court precedents, which are ultimately controlling over the more recent ones. To do otherwise would be to deny the precedential power of the more recent decisions, not to mention the Supreme Court neither can nor will grant cert to any but a handful of relevant decisions involving the new paradigm. It is ultimately up to the circuits to apply it.
Except the Supreme Court has said the exact opposite about what circuit courts should do in such circumstances. Which, again, is an instruction the inferior courts have to obey.