by Orrin Hatch and Sam Brownback
The Washington Times
February 10, 2005


There's an old saying in the legal community: "Bad facts make bad
law." Activist judges continue to prove that bad judges make bad
law. The Jan. 20 decision in U.S. v. Extreme Associates dramatically
shows just what judicial activism really is and the real dangers
that it poses to society.

The Justice Department had brought a 10-count indictment against
a company called Extreme Associates, which produces films that,
according to one report, "even porn veterans find disturbing."
Extreme co-owner Janet Romano, whose "professional" name is Lizzy
Borden, admitted in a May 2001 interview that women in their films,
receive real physical beatings. Her husband, Robert Zicari, boasted
that the films which depict rape, torture, and murder represent
"the depths of human depravity" and proudly admitted that the ones
involved in the indictment meet the legal definition of obscenity.

When the people at Extreme sent these films through the mail,
they violated federal anti-obscenity statutes. Yet what should have
been a slam-dunk conviction turned into a ruling that these statutes
are unconstitutional. When a judge avoids ruling on what is in the
Constitution by ruling on something that isn't, however, you know
something political is afoot. U.S. District Judge Gary Lancaster of
Western Pennsylvania, said that the indictment against Extreme
violated not the First Amendment's right to free speech, but an
unwritten constitutional "right to sexual privacy, which encompasses
a right to possess and view sexually explicit material in the
privacy of one's own home." He could only come to this bizarre
conclusion by stitching together bits and pieces from inapplicable
precedents (and making a few things up altogether) to form a
Frankenstein's monster of judicial activism.

It's no wonder Judge Lancaster wanted to avoid the First
Amendment, because the Supreme Court has repeatedly held that there
exists no First Amendment right to do what these Extreme defendants
did, namely, produce and distribute obscenity. The Supreme Court has
also held, even more specifically, that the right to consume
obscenity privately established in a 1969 case does not create a
right to distribute. That would seem to place in a real bind those,
like the Extreme defendants, who admit to producing and distributing
obscene material. Not to worry, said Judge Lancaster, since this is
really not about the First Amendment at all.

Judge Lancaster took a slice from that 1969 decision (Stanley v.
Georgia) legalizing private consumption of obscenity and stitched it
together with the Supreme Court's 2003 decision protecting a right
to private consensual sexual activity (Lawrence v. Texas). He
concluded that this case was not about freedom of speech but about a
fundamental constitutional right to sexual activity. The 1969
decision on which he so heavily relies, however, was decided
squarely and explicitly on the First Amendment he wants to avoid.

Finally, Judge Lancaster insists that the Supreme Court's 2003
decision creating a right to same-sex sodomy eliminated the argument
that statutes may be justified by what he called "advancement of a
moral code." As Judge Lancaster himself describes it, however, that
conclusion was not a holding of the court at all, but an observation
by the dissenting Justices who, he assures us, "came to this
conclusion only after reflection."

See if you can follow this so far: Judge Lancaster lets
obscenity purveyors, who have no right to distribute obscenity,
challenge statutes they admit violating, on behalf of consumers who
are not involved in the case, claiming the statutes violate a right
not found in the Constitution. The judge pieces together the right
from two Supreme Court precedents, and maintains the First Amendment
has nothing to do with this case, even though the first of his
stitched precedents is a First Amendment case. And finally, the
portion of the second precedent the judge uses comes not from the
majority opinion but from the dissent.

This is what happens when judges ignore the law in favor of
their own agenda. They take a little piece of this, toss in a chunk
of that, and smear a layer of the other on top whatever it takes
to get them where they want to go. In their wake, the Constitution
lies in shambles, statutes passed by the people's representatives
are in the dumpster, the rule of law loses its vitality and, once
again, the people are deprived of the right to govern themselves and
define the culture. Oh, and in this case, the porn industry looks at
a judicial Frankenstein's monster and exults, "It's alive!"

Sens. Orrin Hatch of Utah and Sam Brownback of Kansas are
Republican members of the Senate Judiciary Committee.




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