PITTSBURGH — The 3rd U.S. Circuit Court of Appeals yesterday reinstated federal obscenity charges against a couple who sold pornographic videos depicting simulated rape and murder.
The decision in U.S. v. Extreme Associates, Inc. reversed a January ruling by a federal judge who threw out the 10-count indictment on the grounds that the defendants had a right to distribute obscene materials under constitutional privacy protections.
Federal prosecutors had been trying to salvage the case, arguing that an individual's right to possess obscenity did not mean they have a right to receive or distribute it.
"The courts have consistently held that the right to free expression does not extend to material which is obscene," U.S. Attorney Mary Beth Buchanan said in a statement. "We're pleased with the Third Circuit's decision."
Robert Zicari and Janet Romano, both of Northridge, Calif., and their company, Extreme Associates Inc., were charged in 2003 with distributing three videos through the mail and six images over the Internet to western Pennsylvania. They were also charged with conspiracy.
A grand jury found the company's video and Internet images met the U.S. Supreme Court's test for obscenity. Pornographers must adhere to the community standards of where products are made and anywhere they might be seen, prosecutors said.
But U.S. District Judge Gary L. Lancaster ruled that prosecutors had overstepped their bounds by trying to block the material from children and adults who did not want to see it inadvertently.
The Justice Department appealed the decision, with Buchanan citing U.S. Supreme Court decisions over the past several decades that she said showed there was no right to distribute obscenity.
H. Louis Sirkin, an attorney for the couple and their company, was not immediately available for comment.
Sirkin had said earlier that the Internet has changed notions of privacy and commerce, and that the people who ordered Extreme Associates' products used a private, members-only section of the company's Web site. Such electronic features, he said, prevented minors and unwilling viewers from seeing obscene images.
The federal government has stepped up obscenity prosecutions under the Bush administration, with dozens of people indicted since 2001. That number far exceeds the number of cases pursued under former President Clinton.
The indictment was announced by Buchanan in August 2003, when she said a lack of such prosecutions in the mid- to late-1990s had "led to a proliferation of obscenity throughout the United States."
The charges carry a maximum penalty of 50 years in prison and a $2.5 million fine for Zicari and Romano, and probation and a $5 million fine for the company.