How Appealing points out a remarkable district court opinion from the Western District Of Pennsylvania ruling that legislatures cannot ban the distribution of obscene pornography on Substantive Due Process grounds. The case is United States v. Extreme Associates, and the opinion is by Judge Gary Lancaster. The rather convoluted argument of the opinion seems to be this:
1) Stanley v. Georgia, 394 U.S. 557 (1969), recognized a fundamental right to privacy in the private possession of obscene materials.
2) A law that imposes a substantial burden on a fundamental right triggers strict scrutiny, especially after Lawrence v. Texas, 539 U.S. 558 (2003) made all morals legislation suspect under the due process clause.
3) Regulating obscene pornography places a substantial burden on the fundamental right recognized in Stanley and hinted at in Lawrence, triggering strict scrutiny; and
4) The federal obscenity laws cannot survive strict scrutiny as applied to a case such as this involving obscene pornography.
Among the problems with this approach are the United States Supreme Court decisions rejecting it, specifically holding that Stanley v. Georgia does not apply to distributing or receiving obscene materials. See, e.g., United States v. Reidel, 402 U.S. 351 (1971). Judge Lancaster tries to get around these cases by saying that those are merely First Amendment decisions, whereas he is basing his holding on the doctrine of Substantive Due Process. But I don’t think you can just take a First Amendment case like Stanley, sprinkle on a little Lawrence, and turn the mix into a Substantive Due Process right that cannot be substantially infringed without surviving strict scrutiny. Whatever you think about obscenity law, this opinion is pretty clearly inconsistent with existing doctrine. Expect the Third Circuit to overturn it.
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