Substantive Due Process Porn
The Western District of Pennsylvania has released a radical decision that, if upheld, would have enormous implications outside mere privacy. The decision, United States v. Extreme Associates, held that legislatures cannot ban the distribution of obscene pornography on Substantive Due Process grounds. Orin Kerr spells out the argument made by the court:
- Stanley v. Georgia, 394 U.S. 557 (1969), recognized a fundamental right to privacy in the private possession of obscene materials.
- 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.
- Regulating obscene pornography places a substantial burden on the fundamental right recognized in Stanley and hinted at in Lawrence, triggering strict scrutiny; and
- The federal obscenity laws cannot survive strict scrutiny as applied to a case such as this involving obscene pornography.
There are a few important and related points I want to make about this district court opinion. First and foremost, the district court is blatantly ignoring US Supreme Court decisions directly on point. United States v. Reidel, for instance, held that Stanley v. Georgia does not apply to distributing or receiving obscene materials. This is a classic case of “activist judges” who like making law themselves and ignoring precedent, rather than interpreting the law and following SCOTUS precedent. Changing the law is up to the legislture, not the judiciary.
But besides flying in the face of existing doctrine, the decision also validates some fears of dissenters in the Lawrence v. Texas decision. Lawrence is now being applied to more than just private consenual sex between two consenting adults, as the decision narrowly held. Nor did Lawrence make all morals legislation suspect. Further, the district court’s decision highlights just how vague, loose, and undefinable “substantive due process” has become. The theory was first applied by the Supreme Court in the infamous Dred Scott v. Sandford case, and has been a tool for activist judges ever since. (N.B.: Making that statement means I’ll never be nominated to the bench.)
Much of this is probably irrelevant because I’d wager that the Third Circuit Court of Appeals will reverse, but it may not, and even if it does, the district court’s opinion reveals just how acceptable this line of shoddy legal thinking has become in some corners of the judiciary.
11 Responses to “Substantive Due Process Porn”
The statute used to prosecute extreme associates reads, in part:
“Whoever knowingly uses … an interactive computer service for carriage in interstate or foreign commerce … any obsecene, lewd lascivious or filthy book, pamphlet … writing print or other matter of indecent character …” faces prison sentences of up to ten years.
Read the definition of this “crime” carefully. To me, it’s a total violation of due process.
How do I know whether the words I’m typing right now are a criminal offense warranting up to ten years in prison … or not? I have to wait and find out whether the current administration considers them “filthy” or not.
I recognize that sometimes regulation of speech is necessary. But I agree with the court that such regulation demands strict scrutiny — it must be necessary to serve a complelling government interest.
Josh, for all you know any words on ITA could be “filthy,” warranting ten years in jail. Do you want such a conviction, based on such *incredibly subjective standards*, to be subject to only rational basis review?
I believe in an absolute first amendment. Unless it is yelling “fire” in a crowded theater or child porn, or is transmitted via the public airwaves, then I believe it should be legal.
There are a number of problems with the court’s decision, and all of them are legal ones. Personally I think nearly all obsenity laws should be repealed, but I think they should be repealed by the legislature. Aaron asks,
Well what I want is of little importance here. What’s important is the law and what the Court has already decided, and it has already decided – explicitly – that these “incredible subjective standards” are permissible. You can argue they shouldn’t be, and I think there is a strong argument for it, but district courts do not have the leeway to change SCOTUS precedent.
As for Joel’s comments, I think they’re good ones and I might have to agree. But the Court didn’t decide this on 1st amendment grounds, so the point is moot. They decided it on substantive due process, and the Court has already decided a case directly on point.
Finally, just what is “substantive due process”? Is this a concept that changes with time, as judges see fit? Or is it static and changeable only through the democratic process? Your answer to that question says a lot about your judicial philosophy.
I do think the substantive due process grounds are a cop-out, but they’re also typical of the way courts avoid directly admiting they’re precident is wrong — and the obscenity exception to the first amendment is wrong.
The “obscenity” loophole is basically a way to avoid application of first amendment protections to expression we don’t want the first amendment to apply to. As Stanley itself notes, “the Amendment itself neither proscribes dealings in obscenity nor directs or suggests legislative oversight in this area.”
The First Amendment doesn’t mention obscenity at all. It certanly doesn’t have an exception for “filthy” or “indecent” expression. It’s all protected. Personally, I find the christian tradition of subjecting small children to the simulated drinking of blood and eating of flesh to be both “filthy” and “indecent” but I also consider it expression protected by the first amendment.
I do think the substantive due process grounds are a cop-out, but they’re also typical of the way courts avoid directly admiting they’re precident is wrong…
But Aaron, as you should know already, district courts cannot determine when Supreme Court precedent is wrong. They take their marching orders from SCOTUS, not the other way around, and this court clearly didn’t do that.
Lower courts do more — and should do more — than you suggest. Otherwise there’d be nothing for the supreme court to review.
These are 30- to 50-year-old decisions, and a lot has happened in between. The supreme court doesn’t hear many cases, and a lot of what it does decide to hear is dependent on the posture and issues raised below. There are plenty of reasons for lower court judges to re-examine the law.
Of course, there are also those who wish judges were replaced by binary yes/no machines who never re-examined anything. Except Roe v. Wade …
Aaron, U.S. v. Reidel is only thirty years old, and districts courts are not granted leave to alter precedent and law at whim whenever they feel it’s time for the law to change. The Supreme Court has plenty to review – there is new legislation, etc. It is up to petitioners to appeal to the SCOTUS, it’s not up to district courts to reverse clear precedent and see if cert. is taken. That’s an absurd notion.
I like what Prof. Orin Kerr said:
Yes, of course the issue of what constitutes free speech wasn’t at issue here. But I couldn’t resist sharing my views on free speech.
In a similar fashion, I’ll share that I think that Roe v. Wade was correct to address the right to privacy, but not to invoke it. In other words, I believe there is such an implied constitutional right, but I don’t think it extends to taking the life of a fetus.
Oh, I dunno. As much as we worry about “existing doctrine,” the principle the court applied strikes me as fair. If it is legal to do it, it should be legal to watch it. There are, to my recollection, no exceptions in the First Amendment, not even when appealing to “common sense.”
I still think that, especially when it comes to overzealous postal inspectors trying to use old laws to put people in jail, that judges should be aggressive in interpreting the constitutions protection of individual rights over the right of the legislature to criminalize speech.
If this were a civil matter, or a regulator matter, maybe your case would be stronger. But we’re talking about a law that makes speech a felony. This law is being enforced, as far as I know, in a completely new way. There’s PLENTY of room for a lower court to step in and protect the accused’s constitutional rights.
I don’t understand why you’re so adamant that a judge defer to 30-year-old precedent handed down before anyone had used faxes, much less the Internet, to allow prudish postal inspectors to put people in jail until the Supreme Court gets around to admitting how stupid such a precedent is in the face of current realities.
The court in this case “found the federal obscenity statutes place a burden on the fundamental rights of liberty, privacy and speech.” Yet you think that a lower court has no power to step up and defend people being jailed under such statutes.
I disagree. I hope lower courts will always do their utmost to protect individual rights against such attacks, rather than waiting around for several years for such a violation to get to the Supreme Court.