Zicari and Romano, better known in the adult industry as Rob Black and Lizzy Borden are seeking a dismissal of obscenity charges filed by the U.S. government in 2003 for distributing three videos via the mail and six images over the Internet — all alleged by prosecutors to be obscene material.
In a motion for dismissal filed by Extreme attorneys H. Louis Sirkin and Jennifer M. Kinsley, Extreme Associates asked that the court dismiss all pending charges on the grounds that federal obscenity statutes are unconstitutional and do not apply to the Internet.
In lieu of a dismissal, Extreme is requesting a pretrial ruling as to the applicability of the Miller test for obscenity as it relates to the content named in the indictment. The defense argues that the Miller test’s requirement that the content be taken as a whole is impossible in the context of the worldwide Internet community and that the Miller test’s reliance upon community standards to determine whether a particular work is obscene is not viable in an online environment.
“For example, the federal obscenity statutes are unworkable when applied to the Internet because they mandate that the material be taken as a whole, an impossible task for computerized content that is entirely interconnected; and that the material be judged by the contemporary community standards of the district of prosecution, equally an implausible standard when website operators cannot control the geographic areas in which their material is accessed or viewed,” Kinsley wrote.
Additionally, Extreme Associates has requested a change of venue to the Central District of California because the company did not purposefully distribute or direct allegedly obscene materials to the Western District of Pennsylvania.
The assumption that the trial must convene from where the material was sent or received does not hold true for the Internet, Sirkin wrote. Since Extreme posted material to the Internet, it was powerless to restrict access to it by geographic region. Sirkin argued that the venue should be moved to where Extreme is based because that is where the company knowingly conduct business.
Judge Gary Lancaster originally dismissed the case in January 2005, ruling that the anti-obscenity statutes were unconstitutional when applied to Extreme Associates because they violated an individual’s right to privacy.
The Justice Department appealed that ruling before the 3rd U.S. Circuit Court of Appeals, which overruled Lancaster.
The U.S. Supreme Court declined to hear Extreme’s appeal from the 3rd Circuit, sending the case back to Lancaster for trial. Upon learning of the Supreme Court’s refusal to hear the case, Zicari said it was “a big fuck you.”
Black and Sirkin were unavailable to comment at press time.