PITTSBURGH, PA – The Third U.S. Circuit Court of Appeals will hear arguments in US v. Extreme Associates today, as the widely publicized and potentially high-impact case climbs another rung in the ladder of our justice system.The controversial case kicked into gear when federal grand jury returned an indictment against Robert Zicari (AKA Rob Black) and Janet Romano in August of 2003, on nine counts of violating federal obscenity statutes, and one count of conspiracy based on the alleged conduct.

The defendants, ably represented by Louis Sirkin and Jennifer Kinsley of Sirkin, Pinales & Schwartz, LLP, filed for dismissal of the charges in October of 2003, arguing that the federal obscenity laws infringe on the rights of liberty and privacy guaranteed by the due process clause of the United States Constitution.

District Judge Gary L. Lancaster concurred, stating in his decision that, “Because we find that the obscenity statutes are unconstitutional as applied to these defendants, defendants’ motion to dismiss is granted.”

Reactions to the dismissal were fairly predictable; free speech advocates, the general adult entertainment industry and the defendants themselves hailed the decision as a well-reasoned, rational, and forward-thinking decision, while conservative groups demonized the judge as another “activist judge” imposing his questionable morality onto society from the bench, and the Department of Justice publicly fretted about the potential for moral decay.

“Adding to America’s lengthening list of judicial tyranny, U.S. District Court Judge Gary Lancaster sided with pornographers to the detriment of America’s women and children by dismissing federal obscenity charges against Los Angeles-based Extreme Associates, makers of XXX videos with scenes of rape and murder,” read a statement on the website ConservativePetitions.com. “The activist judge, illegally legislating his immorality from the bench, opened wide the door for pornographers to inflict even more obscene material on our nation with a precedent-setting decision that threatens to have an adverse effect on your community.”

One thing both sides agree on; the case does have far-reaching implications for the future of obscenity law and obscenity prosecutions in the US.

“The Justice Department believes that the reasoning of the District Court in dismissing the indictment, if upheld, 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,” the DOJ said in a February press release announcing their appeal of Lancaster’s decision.

So what are the prospects for the government’s appeal? As is always the case with legal matters, it depends a lot on whose opinion you ask for. While attorney Jeffrey Douglas, Chairman of the Free Speech Coalition, wrote in a recent article that there is a “realistic possibility that there will be an end to obscenity prosecutions in this country,” other experts are more skeptical that Lancaster’s decision will be upheld by the Third Circuit.

In reference to the Constitutional arguments and case citations Lancaster used in support of his decision, UCLA law professor Eugene Volokh wrote on his Volokh Conspiracy blog “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.”

“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,” Volokh writes. “Whatever you think about obscenity law, this opinion is pretty clearly inconsistent with existing doctrine. Expect the Third Circuit to overturn it.”

For now, it’s all speculation, and the ultimate answers will only begin to take shape tomorrow. Regardless of this appeal’s outcome, you can bet your bottom dollar it won’t be the final word to be heard in the Extreme case. Stay tuned…