From The Blog of the American Constitution Society:
http://www.acsblog.org/bill-of-rights-741-court-strikes-down-federal-obscenity-statute.html
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Court Strikes Down Federal Obscenity Statute
January 23, 2005 01:29 PM
In U.S. v. Extreme Associates, Inc., Judge Lancaster of the Western District
of
Pennsylvania struck down the federal law criminalizing obscenity as applied
to
a distributor of internet pornography:
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
In reaching its holding, the court relied heavily on the Supreme Court's
holding in Lawrence v. Texas, which declared state anti-sodomy statutes
unconstitutional. The court in Extreme Associates construed Lawrence
broadly,
holding that in the wake of Lawrence "public morality is not a legitimate
state
interest sufficient to justify infringing on adult, private, consentual,
sexual
conduct, even if that conduct is deemed offensive to the general public's
sense
of morality."
The government argued, in part, that "entertaining lewd and lustful thoughts
stimulated by viewing material that appeals to one's purient interests . . .
..
is immoral conduct even when done by consenting adults in private." The
court,
however was unmoved by this Comstockian argument, declaring that after
Lawrence, "upholding the public sense of morality is not even a legitimate
state interest."
UPDATE 1/23/05, 2:44pm, by Ian: Professor Orin Kerr at the Volokh Conspiracy
argues that this case is inconsistent with existing doctrine, and will
likely
be overturned on appeal.
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