DOJ to appeal obscenity decision

By Tom Strode - Feb 28, 2005 - comment

The Department of Justice announced Feb. 16 it will appeal a recent court setback on obscenity, providing a glimmer of hope it may prosecute such cases with more ardor under a new attorney general.

DOJ will ask the Third Circuit Court of Appeals to overturn a federal judge’s decision dismissing an obscenity indictment against Extreme Associates. The 10-count indictment dismissed in January charged the Los Angeles-based business with conspiracy to distribute obscenity, as well as disseminating obscene material through the mail and the Internet.

Only two days after he was sworn in as attorney general, Gonzales said in a written statement DOJ “remains strongly committed to the investigation and prosecution of adult obscenity cases.”

Some pro-family organizations have questioned the Bush administration’s commitment to the fight against obscenity, however. While they charged the Clinton administration with a constant failure to prosecute obscenity under Reno, they also were displeased with DOJ’s record on obscenity under Ashcroft, Bush’s first attorney general.

In dismissing the indictment at Extreme Associates’ request in a western Pennsylvania federal court, judge Gary Lancaster referenced a 2003 U.S. Supreme Court opinion overturning state prohibitions on homosexual sodomy. The Lawrence v. Texas decision, Lancaster wrote, “can be reasonably interpreted as holding that public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct even if that conduct is deemed offensive to the general public’s sense of morality.”

If Lancaster’s decision is upheld, DOJ said it was concerned the ruling “would undermine not only the federal obscenity laws, but all laws based on shared views of public morality, such as laws against prostitution, bestiality and bigamy.”

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