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Justice Department to appeal obscenity case dismissal

WASHINGTON (BP)–The U.S. Department of Justice has announced it will appeal a recent setback on obscenity, providing a glimmer of hope it may prosecute such cases with more ardor under a new attorney general.

The department will ask the Third Circuit Court of Appeals to overturn a federal judge’s decision dismissing an obscenity indictment against Extreme Associates, the DOJ announced Feb. 16. The 10-count indictment dismissed in January charged the Los Angeles-based business with conspiracy to distribute obscenity, as well as disseminating obscene material through the mail and the Internet.

New Attorney General Alberto Gonzales said in a written statement the DOJ “places a premium on the First Amendment right to free speech, but certain activities do not fall within those protections, such as selling or distributing obscene materials. The Department of Justice remains strongly committed to the investigation and prosecution of adult obscenity cases.”

Some pro-family organizations have questioned the Bush administration’s commitment to the fight against obscenity, however. While they charged the Clinton administration with a constant failure to prosecute obscenity under former Attorney General Janet Reno, they also were displeased with the DOJ’s record on obscenity under Bush’s first attorney general, John Ashcroft.

When it was revealed in early February Adelphia Communications Corp., the country’s fifth largest cable company, would begin offering hard-core pornography to subscribers in Southern California, the American Family Association blamed the Department of Justice.

“Adelphia feels safe in offering the illegal obscenity because they know that the Department of Justice will not prosecute them,” AFA Chairman Don Wildmon said in a written release. “During the past 12 years the distributors and retailers of obscenity have had an open door to distribute their product while DOJ looked the other way.”

The department’s announcement of its appeal was made only two days after Gonzales was sworn in as attorney general Feb. 14.

In dismissing the indictment at Extreme Associates’ request in a western Pennsylvania federal court, Judge Gary Lancaster referenced a 2003 U.S. Supreme Court opinion overturning state prohibitions on homosexual sodomy. The Lawrence v. Texas decision, Lancaster wrote, “can be reasonably interpreted as holding that public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct even if that conduct is deemed offensive to the general public’s sense of morality.”

If Lancaster’s decision is upheld, the DOJ said it was concerned the ruling “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.”

Critics of the Supreme Court’s opinion in the Lawrence ruling warned the majority’s reasoning could produce such results.

Critics inside and outside Congress attacked Lancaster’s opinion as an extreme example of judicial activism.

Lancaster “is giving the Supreme Court an opportunity to eliminate anti-pornography laws,” said Pat Trueman, senior legal counsel of the Family Research Council, in a written statement. “If higher courts fail to overturn this decision, it will be yet more proof that the often-mocked ‘slippery slope’ argument is alive and well.”

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