U.S. v. Extreme Associates, Inc., Crim. No. 03-0203.
| Decision Date | 20 January 2005 |
| Docket Number | Crim. No. 03-0203. |
| Citation | 352 F.Supp.2d 578 |
| Parties | UNITED STATES v. EXTREME ASSOCIATES, INC., Robert Zicari, and Janet Romano, Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
Stephen R. Kaufman, United States Attorney's Office, Pittsburgh, PA, for Plaintiff.
Jennifer M. Kinsley, Sirkin, Pinales, Mezibov & Schwartz, H. Louis Sirkin, Cincinnati, OH, Warner Mariani, Pittsburgh, PA, for Defendants.
This is a criminal prosecution charging nine counts of violating the federal obscenity statutes and one count of conspiracy based on that conduct. 18 U.S.C. §§ 371, 1461, 1462 and 1465. The United States has charged defendants Extreme Associates, Inc., Robert Zicari, and Janet Romano with distribution of obscene material via the mails and the Internet. Defendants are in the business of producing and selling sexually explicit films. Defendants have filed a motion to dismiss the indictment 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. [Doc. Nos. 14 and 15].
Because we find that the obscenity statutes are unconstitutional as applied to these defendants, defendants' motion to dismiss is granted.
The parties submitted the following "Joint Stipulation of Fact" prior to oral argument. Additional facts not in dispute will be discussed in this memorandum in context.
Facts Regarding the Internet Generally:
1. The Internet is a decentralized, global medium of communication that links people, institutions, corporations, and governments around the world. It is a giant computer network that interconnects innumerable smaller groups of linked computer networks and individual computers. Although precise estimates are difficult to formulate due to its constant and rapid growth, the Internet is currently believed to connect more than 159 countries and close to 322 million users worldwide.
2. Because the Internet merely links together numerous individual computers and computer networks, no single entity or group of entities controls all of the material made available on the Internet or otherwise limits the ability of others to access such materials. The range of digital information available to Internet users — which includes text, images, sound and video — is individually created, maintained, controlled, and located on millions of separate individual computers around the world. Each content provider of a web site is responsible for its content.
3. The Internet presents extremely low entry barriers to anyone who wishes to provide or distribute information or gain access to it. The Internet provides an affordable means for communicating with, accessing, and posting content to a worldwide audience.
4. In the United States, individuals have several easy means of gaining access to computer communications systems in general and to the Internet in particular. Many educational institutions, businesses, local communities, and libraries maintain an easily accessible computer network which is linked directly to the Internet. Many of these entities restrict access to sexually explicit material.
5. Internet service providers ("ISPs") allow subscribers to access the Internet through the subscriber's personal computer by using a telephone modem, broadband, including a cable modem or digital subscriber line (DSL), and dedicated access, such as a T1 line. Most ISPs charge a monthly fee in the range of $15.00 to $50.00, but some provide their users with free or very low-cost Internet access. Every ISP has a Terms of Service Agreement with those customers that desire to host content, in the form of a web site, on the ISP's network. The Terms of Service Agreement may prohibit the individual or entity (customer) hosting a web site from posting certain material such as child pornography or sexually explicit content, on the ISP's network.
Subscribers who do not host a web site, but utilize the ISP to access the Internet, also enter into a Terms of Service Agreement which may limit certain activities.
6. The World Wide Web is the most popular technology to access information on the Internet. Anyone with access to the Internet and proper software can create webpages or home pages which may contain many different types of digital information — text, images, sound, and video. The web comprises millions of separate websites that display content provided by particular persons or organizations. Any Internet user anywhere in the world with the proper software can view webpages posted by others, read text, view images and video, and listen to sounds posted at these web sites. Internet users wishing to make content available to others must create the content and publish it on the Internet through an ISP.
7. The web serves in part as a global, online repository of knowledge, containing information from a diverse array of sources, which is easily accessible to Internet users around the world. Though information on the web is contained on individual computers, each of these computers is connected to the Internet through a web protocol, the hyper text transport protocol, that allows the information on the web to be accessible to web users. The content of some web sites is available to all users while other content may not be accessible without a method of access, such as a login code, chosen by the web site host.
8. To gain access to the information available on the web, a person generally uses a web "browser" — software such as Netscape Navigator or Internet Explorer — to display, print, and download documents that are formatted in the standard web formatting language. Each page on a web site has an address that allows users to find and retrieve it.
9. Most web documents also contain "links." These are short sections of text or images that refer and link to another document. Typically the linked text is blue or underlined when displayed; and when selected by the user on the user's computer screen, the referenced document is automatically displayed, wherever in the world it actually is stored. Links, for example, are used to lead from overview documents to more detailed documents on the same website, from tables of contents to particular pages, and from text to cross-references, footnotes, and other forms of information.
10. Links may also take the user from the original website to another website on a different computer connected to the Internet, a computer that may be located in a different area of the country, or even the world.
Facts Regarding This Case During All Times Relevant to the Charges in this Case:
11. Extreme Associates, Inc. operated a website known as www.extremeassociates.com. The website was divided into two sections — one section which could be accessed by the general public without cost and one section for members only. The "members only" section required a payment of $89.95 for a three month period, renewable automatically.
12. To become a member of the Extreme Associate's website, an individual must have completed an on-line registration form which includes the following: 1) name; 2) address; and 3) credit card information. Once the form was completed, the potential member clicked the "submit" button. If Extreme Associates accepted the applicant as a member, it then provided a user name and password to the new member and billed his credit card every three months.
13. Once an individual was a member of the Extreme Associates website, he or she was permitted to access "members only" content from any computer worldwide. To do so, the member was only required to enter a username and password. Extreme Associates did not require the member to disclose the geographic location of the computer he or she was using. Extreme Associates did not request entry of a geographic location from persons logging into the "members only" portion of its site.
14. The "members only" portion contained multiple webpages, or screens, which were comprised of various headings, photographs, text, and computerized images. Also available on the "members only" portion of the website were short video clips which ranged from less than one minute in length to several minutes in length. The hyperlinks to these video clips appeared on a webpage with various other content, including text and graphic design.
15. The video clips could be accessed by clicking on them with a mouse and viewing them with a video processing program, such as Real Time or Windows Media. Any video clips could be downloaded by the member and saved onto the member's personal computer, so that the member could view the video clip at any time without accessing the Extreme Associates website or even connecting to the Internet.
16. Some of the video clips that appeared on the Extreme Associates website were excerpts from full length videos produced, distributed, and/or sold by Extreme Associates; others were not. However, the web page containing the video clips did not reference any full length video, nor whether such videos were available on VHS or DVD. Where the video clip was in fact an excerpt from a full-length video, the full-length video was available for purchase on another page of the Extreme Associates website.
17. The defendants selected the length and chose the content of each video clip available on the "members only" portion of the Extreme Associates web site.
18. As part of the investigation of this case, United States Postal Inspector Joseph McGowan registered as a member of the Extreme Associates website. More specifically, on September 5, 2002, Postal Inspector McGowan subscribed to the Extreme Associates membership website. He did it in the following manner:
He went to the extremeassociates.com website and clicked on to the member's registration. That brought him to the ccbill.com page. The page reflected ccbill.com letterhead and had "instant online...
To continue reading
Request your trial
-
Lowe v. Swanson, No. 5:08 CV 686.
...358 F.3d 804 (11th Cir.2004); Witt v. U.S. Dept. of Air Force, 444 F.Supp.2d 1138, 1143 (W.D.Wash.2006); United States v. Extreme Assocs., Inc., 352 F.Supp.2d 578, 591 (W.D.Pa.2005); Conaway v. Deane, 401 Md. 219, 310, 932 A.2d 571 (Md. 2007); Ex parte Morales, 212 S.W.3d 483, 493 (Tex.App.......
-
U.S. v. Ragsdale
...made all the more attractive by the Western District of Pennsylvania recent acceptance of similar averments in United States v. Extreme Assocs., 352 F.Supp.2d 578 (W.D.Pa.2005). Garry asks us to find that the Lawrence Court implicitly overruled the numerous cases in which the Court had uphe......
-
Doctor John's, Inc. v. City of Roy
...This case is thus palpably different from those cases cited by Dr. John's in support of its argument. See United States v. Extreme Assocs., Inc., 352 F.Supp.2d 578, 586 (W.D.Pa.), rev'd, 431 F.3d 150 (3d Cir.2005) ("Defendants further argue that because the federal obscenity laws place a co......
-
Banks v. Gallagher
...by prior Third Circuit and Supreme Court case law finding the contested statutes constitutional. United States v. Extreme Assocs., Inc., 352 F.Supp.2d 578, 590 (W.D.Pa.2005) (Lancaster, J.), rev'd, 431 F.3d 150 (3d The Third Circuit reversed the District Court. See Extreme Assocs., 431 F.3d......
-
Constitutionality of sexually oriented speech: obscenity, indecency, and child pornography
...which can justify its intrusion into the personal and private life of the individual”). 149. United States v. Extreme Assoc., Inc., 352 F. Supp. 2d 578, 587 (W.D. Pa. 2005). 150. The Court concluded, “[A]fter Lawrence , the government can no longer rely on the advancement of a moral code i.......
-
The Due Process Clauses of the 5th and 14th Amensments
...Goldberg, Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas, 88 Minn. L. Rev. 1233, 1247-58 (2004). [265] 352 F. Supp. 2d 578 (W.D. Pa. 2005), rev'd, 431 F.3d 150, 155-56 (3rd Cir. 2005), quoting Rodriguez, 490 U.S. 477, 484 [266] 400 F.3d 622, 628-32 (8th Cir. 2......
-
Table of Cases
...and Surveyors v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976), 1156 Extreme Associates Inc., United States v., 352 F.Supp.2d 578 (W.D. Pa. 2005), rev'd, 431 F.3d 150 (3rd Cir. 2005), Exxon Corp. v. Chick Kam Choo, 817 F.2d 307 (5th Cir. 1987), 903 Page 1674 Exxon Mobil......
-
Redefining due process analysis: Justice Anthony M. Kennedy and the concept of emergent rights.
...not announce a fundamental right, see Williams v. Att'y Gen., 378 F.3d 1232, 1236 (11th Cir. 2004); United States v. Extreme Assocs., 352 F. Supp. 2d 578, 591 (W.D. Pa. 2005); United States v. Gartman, No. 3:04-CR-170-H, 2005 U.S. Dist. LEXIS 1501, at *4 (N.D. Tex. Feb. 2, 2005); Wilson v. ......