Articles on the ultra-violent and degrading pornography produced by Extreme Associates
Porn provocateur Lizzy Borden, whose ultraviolent films feature women being beaten, raped and doused in vomit, insists that she is a gender pioneer whose repellent movies are morality tales
June 20, 2002
By Janelle Brown
The most reviled woman in pornography stands before me, a 25-year-old bleached blond in tattered floral house slippers. On the cover of a catalog for Extreme Associates, the porn film company she runs with her husband, Rob Black, director Lizzy Borden wears spider-web tights and a skull-and-bones T-shirt that she accessorizes with a malicious grin and impressively pneumatic breasts. But in the privacy of her own office -- a cramped cinderblock warehouse covered with posters of naked women and autographed Hulk Hogan photographs -- she wears sweat pants and a Quiksilver T-shirt, with no visible makeup and her hair pulled back in a ponytail. Plus, the slippers.
"I'm totally bloated today," she tells me, sounding more like an awkward teen than a porn movie maven. "Don't take any photographs!"
In person, Lizzy Borden comes off as a chatty girl with a quick sense of humor, a potty mouth and a slight attitude problem. And yet, during her five-year career as an actress/director, Borden has emerged as a porn powerhouse who manages to offend, disgust and/or alienate not just feminists, politicians and most Americans with a conscience, but a great percentage of the unshockable pornography industry as well. This is a woman whose filmography includes such gems as "Fossil Fuckers" (geriatric women having sex with young men), "Cocktails" (post-coital women drinking vile concoctions of vomit and bodily fluids) and, most horrifyingly, the recent slasher-porno "Forced Entry."
In fact, Borden's films are so repugnant and evil that it's difficult to justify their existence, let alone comprehend why anyone -- especially a woman -- would want to make this kind of garbage in the first place. But Borden talks about her work with pride and a kind of twisted logic. She considers herself a moralist, an artist, a realist and a provocateur (though perhaps not in such grand vocabulary). In an industry that treats women like second-rate citizens, that considers them useful only as long as their breasts are perky and their orifices exploitable, Borden sees a route to power and respect in out-boying the boys. Furthermore, she believes she's just giving audiences the same kind of violence and vileness they've come to expect from their other entertainment outlets, like the World Wrestling Federation, "Jackass" and Eminem.
And thanks to her own abusive childhood, Borden is just screwed up enough to believe this rationalization. "As people stay in this industry they tend to get pretty twisted," explains journalist Luke Ford, a porn insider and longtime chronicler of the business. "It both attracts twisted people and then exacerbates those tendencies." No one epitomizes this more than Lizzy Borden, and none of her work manifests it so completely as the recent "Forced Entry."
The film premiered, oddly enough, as part of the Frontline documentary "American Porn," which screened on PBS this February. During their exploration of the extreme end of the porn industry, the Frontline producers visited the set of "Forced Entry" (actually, the back room of the Van Nuys, Calif., warehouse that Extreme Associates calls its office), where Borden was taping the climax of her film. The PBS producers were so disturbed by what they saw -- star Veronica Caine being "raped" and "beaten" -- that they filmed themselves walking off the set because it was too hard for them to watch.
I felt the same way when I watched the film. "Forced Entry" is purportedly the story of a serial killer and his gang who rape and murder a series of women -- an 18-year-old virgin, a pregnant woman, etc. -- before being caught and lynched by an angry mob. The actresses in the film are slapped, spit and urinated upon, and violated in every orifice, while sobbing and screaming and begging for mercy. Watching it, I was aware that it was just a movie -- that these were consensual acts taking place between actors and actresses who had already had sex with each other dozens of times in past films; and that the blood and screams were fake. The video even included an entire "blooper" reel of the actresses laughing and joking on the set. Still, I was so traumatized by the movie that it brought me to tears: It was like witnessing a real rape, seeing the nadir of man's contempt for womankind brought to life with no holds barred.
It's hard to equate this horror with the outgoing girl in slippers who walks me around the Extreme warehouse, through the spray-painted room where, in "Forced Entry," Veronica Caine is violated and stabbed to death. All the while Borden chats about her beloved bulldog and asks me questions about my career. She seems anxious to prove to me that she's not the evil, actress-beating director that Frontline depicted.
"I've fucked up on a lot of interviews, said things that people take all the wrong way," she tells me, as she sits me down in a broken office chair and puts her feet up on a big wooden desk. (I eye the desk nervously, wondering if it figured in the scenes of any of her movies.) "I'm very honest. Anything you want to know."
Despite these assurances, Borden has not always been totally honest about her past. In her early Extreme years, she pretended to have spent her youth in an insane asylum after murdering her family, à la the original Lizzy Borden. But this is the story she tells me now: Lizzy Borden was born in conservative Orange County, Calif. -- "behind the Orange Curtain" as she puts it -- to a "white trash" Italian Catholic family. Her stepfather was an abusive alcoholic, she says, who beat her mother viciously and regularly. Her mother stayed at home to raise Lizzy and her three half-siblings, and took out her own frustrations, says Lizzy, by beating her with her fists and assorted sharp objects. Lizzy moved out of her mother's house when she was 12, and finished high school while living with her conservative grandparents.
When she turned 18, Borden headed off to a local community college on a scholarship. "For the first time in my life I could actually see the world," she says, and the world she chose to see was full of drugs and partying. Frat parties led to raves; acid and Ecstasy led to speed and cocaine use, which led to a job as a stripper, assorted abusive boyfriends and her first lesbian experience.
Borden derives immense pleasure from describing how naive and introverted she once was. "I was an ugly duckling: I had a big Italian nose, the long brown hair. I never ever shaved my cunt until I started to strip! I didn't know anything," she confides, all wide-eyed astonishment. When she got her first job at a strip club, she tells me, "I didn't know how to use a tampon: When I saw someone else do it I was like, 'Oh no, Oh no. My grandma told me that once you do that, you are going to get toxic shock, you are going to die!'"
Nevertheless, Borden made quick work of losing her naiveté. After a brief career dancing at strip clubs, she met a porn star who convinced her that there was good money to be made in the business. She took her mother -- with whom she had reconciled, thanks in part to the drug problem they share and over which they had "bonded" -- to her first porn shoot and sat her outside the front door.
"I told her she had two choices: 'Either you don't go with me, and I get fucking killed and you see it on the news. Or you go with me and make sure no one kills me.' So she sat outside," says Borden. "And I was like, 'OK, my mom's out there just so you know.' I didn't know this world, I thought no one was gonna hurt me if my mom was out there."
Her mother cried over her decision, Borden says, until she saw the money that Borden was making. These days, Mom has a job at Extreme Associates. (Her mom, she says, "has her own fucked-up issues.")
After less than a dozen films, Borden got a job performing in a film for Extreme Associates, which led her to the man who would become her husband -- the porn director Rob Black, who already was gaining notoriety for his no-taboo-unexplored films. But, explains Borden, Rob "can't be with a woman who does porn, he comes from a Catholic Italian family," so she quickly gave up acting and, after assisting on Extreme sets, convinced Black to let her direct instead. It was just a matter of months before the two of them invented Lizzy Borden, the twisted mascot-slash-mistress of the most horrific films in the Extreme catalog.
Rob initially resisted Borden's desire to direct. "He said, 'Women don't make good directors,'" Borden explains. The idea that women don't make good directors is a commonly held belief in the porn industry, she says, because women "shoot all the soft stuff, all the lovey-dovey stuff that there's not a big market for. In the video stores, that's not what you go see: You want to see hardcore ass-fucking, DP [double-penetration], cum, piss, shit, whatever you can."
Borden, in turn, began to see herself as a kind of female challenge to the male-dominated industry: "I said: 'I'm fucked up! I can write something! I can be a man!' My mission after that was to prove everyone wrong."
Around her office, she says, she now acts just like a guy: She describes, with glee, how she recently peed on the chair of a co-worker and then made him sit on it, and how she and her best friend, star Veronica Caine, hid a dead fish in the office of another co-worker. She says that she farts and scratches and takes no grief, and that this means that the men of the porn industry no longer treat her like one of those "fluffy-puffy" porn queens.
"It's a power thing," she says. "These people told me I couldn't do something, and that's the only reason I wanted to do it. Because they told me I can't ... So I started to get more and more hardcore, until now no one can top me. I can get anyone to do anything because I am a woman. I think I've earned that respect."
It didn't take long for Lizzy to establish herself as a woman who went where no woman, and most men, would dare to go. The covers of the films that she has produced are difficult to even look at, covered as they are with hardcore snapshots of sex and blood. There's "Cannibalism," a horror-porno in which various internal organs are consumed after an orgiastic release. There's the "Sexually Intrusive Dysfunctional Family" series, which features such props as a decapitated pig's head. "Cocktails" features a grinning girl with a filth-smeared face and a bowl underneath her chin. ("Forced Entry," fortunately, has no cover art.)
Sex in Borden's films is almost always violent. Urine, excrement, blood and spit are prominent. Many films feature witches, Satan, robots, aliens and assorted otherworldly creatures. No orifice goes unviolated, and the more revolting the means, the better.
In fact, Borden says, she often revolts herself, but in a good kind of way. "It's disgusting but I like to watch it because it's shocking," she explains, and says that she sadistically eggs on her actresses to see how far they'll go. She's inspired by the likes of Eminem and Marilyn Manson, she says; she also compares her more nasty videos, like "Cocktails" -- in which, it seems, the sex is almost ancillary to the shock-horror-revulsion -- to shows like "Jackass," in which star Johnny Knoxville will don a face mask and go "swimming" in a porta-potty, or "Survivor," where contestants eat bugs and drink blood.
"Those reality shows, where people eat bugs and shit: That's disgusting! How can you watch it? But I watch it. It's the same with what we do: People are shocked by it, but they watch it."
And apparently enough people watch to make Borden's business profitable: "Cocktails" and "Fossil Fuckers," the films of which Borden says she is most proud, have sold so well that she has done sequels for all of them. "Forced Entry," her magnum opus, has sold 20,000 copies through mail order alone. This is the most disturbing aspect of her films: The fact that viewers watch these movies as a way of getting off. What kind of person masturbates to the sight of girls being slapped, drinking their own vomit or being raped?
This is the only question that gives Borden pause. "That's the one thing that we deal with every day," she says, and quickly meets the eyes of Veronica Caine, whom she has hauled into our interview in order to assure me that the actress wasn't really beaten and murdered in "Forced Entry." There is a momentary silence.
But Borden quickly brushes off this concern by insisting that, really, those creeps who get turned on by the violence in her films are actually being taught a lesson. She argues that many of her films are moral tales, based on "real" stories you might read in the news, in which the bad guy or girl gets caught in the end. A bad alcoholic mother runs over her babysitter and her son, and ends up slashing her wrists (after having sex with assorted strangers first); the rapist in "Forced Entry" is murdered by a vigilante mob; a woman with a cheating husband leaves him in the end.
"If you watch it and don't fast-forward it, and if you think about it, you'll see there's a moral to it!" Borden argues. "Most of this is awareness. I try to show what could happen to you. Do this [violent act] and you are going to get fucked up." Instead of believing, as some do, that linking sex and violence encourages rape, she points out that people get turned on by violence against women in movies like "Halloween" or "The Accused" all the time -- the only difference being that they don't actually see the sex.
Caine, a freckle-faced 32-year-old who is as calm as Borden is hyperactive, chimes in. She was shunned for performing in "Forced Entry," Caine says, and she admits there are moral concerns about the film. But, she adds, "There's nothing wrong with what I'm doing. The one thing that people want to pick out that makes it wrong is the fact that there is hardcore sex in it. Everything else is completely acceptable on a daily basis. I simply performed something that involved sex with a completely mainstream kind of entertainment. And porn is mainstream to me."
I can vaguely understand the argument that Eminem's "Kim," in which we hear a woman being raped and murdered, is no more socially acceptable than "Forced Entry," in which we see it. Except "Forced Entry," of course, is also a porno flick intended to sexually arouse us. Perhaps the juxtaposition that shocks me has simply been normalized in the porn industry, in which sex can be as banal an act as eating cornflakes -- even when it is embellished with a beating.
Still, it's difficult for me to comprehend how these women can calmly talk about performing acts that make me shudder with horror when I see them on tape. Maybe, I think, Borden's a sadist who reenacts violence in order to purge the violence of her own past; maybe this is a game to prove herself to her extreme husband; maybe it's a way of rising above helplessness and futility.
I find one thing striking, though: Borden admits that she isn't actually aroused by her own movies. I ask her what turns her on in porn, and she says it's "when two people have a connection ... Not so much lovey-dovey, but when they are like, yeah, fuck me harder, fuck me harder! Well, I guess you could say it's lovey-dovey, but with more of a hardcore edge to it."
Borden vows that she isn't a feminist, but she sees herself as kind of a gender pioneer. Her films, she says, have powerful messages for women: "For the most part I hope women will look at [my movies] and say, 'A woman made this, she directed it.' I'm saying, you can get your revenge, maybe not the way I did, but in your own way you can rise above it. You got to reach within yourself and apply it."
But the respect that Borden says she has earned is dubious: There are women, she admits, who no longer meet her eyes when they see her, and men who think she's a freak. In general, porn insiders say that Extreme fare is generally considered too gross by the more elitist hierarchies of the industry, and that Borden is considered an anomaly. But Borden also extols the fact that men on the sets no longer ask her to "fluff" them or demand blow jobs; she's sometimes even approached by female porn stars who admire what she does.
She's happy, she insists: Messed in the head, maybe, but happy. She's off drugs and alcohol -- the only thing she does now is drink too much coffee and take Zoloft. She's not sure if she wants children, but says that her porn friends are her family: All she needs is her husband Rob, whom she describes as "my savior, the love of my life," and her best friend Veronica, "a saint ... she completes me.
"We're like the land of misfit toys," she giggles.
Borden's not sure where she wants to be in 10 years; maybe on a beach in Florida, she says. She recently launched a second career as a wrestler, as part of Extreme Associates' new foray into WWF-style entertainment (more violent, of course, including accessories like barbed wire and thumbtacks). She's also thinking of going back to college with Caine, to learn how to do movie makeup, or set design, or maybe nursing.
When she talks like this, she sounds like an average young adult, unsure what she wants with the world but confident that she can conquer anything if she just sets her mind to it and has her best friend at her side.
Borden tells me that she is seeing a therapist. When I ask her what her therapist thinks of what she does, she tells me, "She thinks I'm interacting with the world, which is good. I accomplish goals instead of being 'Poor me, I was abused as a child so I'm going to sit on the couch and be depressed and eat dum-dums and watch Oprah and commiserate with every woman and man in the world that feels like that.' No, I'm going out there and doing my own thing."
She looks me in the eyes and puts on a challenging face that flickers between blasé and bravado. "Yeah, I'm fucked up," she says, shrugging. "I can admit it. People say they are sorry for me, and I'm like, why? It's made me a better person. I don't want to be a pansy."
Court Deals Blow to U.S. Anti-Porn Campaign
Judge Calls Obscenity Laws Unconstitutional, Derails Key Federal Anti-Pornography Case
January 24, 2005
By Jake Tapper
On the same day that President Bush was inaugurated for his second term, a federal court in Pittsburgh was handing him a major legal defeat on one of those "moral value" issues that helped return him to office. In what could be a crushing blow to his administration's stated goal of ramping up prosecutions of those who traffic in extreme pornography, a federal judge declared the government's anti-obscenity laws unconstitutional.
With an emphasis on the 2003 Supreme Court decision striking down Texas' laws against homosexual sodomy, U.S. District Judge Gary Lancaster of western Pennsylvania ruled Thursday that "the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd and lascivious thoughts as a legitimate, let alone a compelling, state interest."
This could severely complicate the plans of Attorney General-designate Alberto Gonzales, who recently informed the Senate that if confirmed as attorney general, he intends "to make the investigation and prosecution of obscenity one of my highest criminal enforcement priorities." During his confirmation hearings, Gonzales said that "obscenity is something else that very much concerns me. I've got two young sons, and it really bothers me about how easy it is to have access to pornography."
Lancaster dismissed obscenity charges this past week in the federal government's first major prosecution for obscenity in more than a decade, the United States of America vs. Extreme Associates. In August 2003, pornographers Rob Zicari and his wife, Janet Romano -- aka Rob Black and Lizzie Borden -- were indicted for 10 counts relating to the production and distribution of obscene materials, facing up to 50 years in prison and a fine of $2.5 million.
Mary Beth Buchanan, the U.S. attorney for western Pennsylvania who prosecuted the case, told ABC News in 2003 that the Bush administration saw its prosecution of Zicari as pivotal.
"In the last 10 years, we've really had very little, if any, prosecution of the federal obscenity laws," she said. "And because of that, the material that is being distributed today is far worse than any material that had been previously distributed. And it's really gotten out of hand."
After Thursday's decision, Buchanan issued a written statement that she was "very disappointed by the court's decision to dismiss the indictment."
Buchanan said her office continues "to believe that the federal obscenity statues are valid and constitutional" and that her team of lawyers was "reviewing our options, which could include an appeal to the United States Court of Appeals for the Third Circuit."
Reached in Los Angeles, Zicari was ecstatic about the decision. He will give an exclusive interview to ABC News on the subject for tonight's "Nightline" broadcast.
Extreme Associates bills itself as the hardest hard-core porn on the Web. "Forced Entry" features three graphic scenes of simulated rapes and killings. The women are also spat upon. "Extreme Teen 24" has adult women dressed up and acting like little girls in various hard-core scenes.
Paul Fishbein, president of Adult Video News, the trade journal of the pornographic film industry, said Zicari produced "horrible, unwatchable, disgusting, aberrant movies." Nonetheless, Fishbein said were he judging the case he'd have to rule that they "were not obscene, because the First Amendment is pure and has to remain pure."
"You might not like what you had just seen," Zicari told ABC News before his arraignment. "It might have disturbed you, it might have repulsed you, it might have given you all sorts of emotions. But are you going to limit and be that person that has the right to say 200 million other citizens cannot watch that because you don't like it?"
In an interview with ABC's Ted Koppel, Andrew Oosterbaan, chief of the Child Exploitation and Obscenity section of the Justice Department, said that was precisely the decision of the local community.
"Under the law of obscenity, it's the community's job to draw that line," he said. "What prosecutors do in investigating obscenity cases, especially considering how vast the problem seems to be ... is finding a way to make a difference in the environment that we face right now. And the Extreme Associates case shows just how egregious the conduct can be."
In some ways, Zicari asked for the government's attention. In a February 2002 episode of PBS' "Frontline," Zicari talked about the taboo nature of his films. In the transcript of that interview, posted on the "Frontline" Web site, Zicari stated, "We've got tons of stuff they technically could arrest us for. I'm not out there saying I want to be the test case, but I will be the test case. I would welcome that. I would welcome the publicity. I would welcome everything to make a point in, I guess, our society."
Buchanan told ABC News: "Zicari's statements on the 'Frontline' edition and the transcript of those interviews were very helpful for law enforcement to be able to assess what Rob Zicari's intent was. It helped us to determine that this was not a producer who was trying to comply with the law. This is not a producer who wanted to make sure that his products wouldn't violate the community standards. What we learned from this interview is that Rob Zicari intended to violate federal law."
On Sept. 5, 2002, U.S. postal inspector Joseph McGowan went to Zicari's Web site, where he registered as "Kim Wallace," providing name, address and credit card information. He paid $89.95 to join the organization for three months.
McGowan and other postal inspectors then viewed some clips from the Web site, including some from an area of the site called "The Piss Zone." McGowan also ordered three videotapes from the company, which were sent to an undercover postal agent in Pittsburgh.
On April 8, 2003, law enforcement seized five movies at Extreme Associates in Los Angeles. The search warrant from that time referred to the "Frontline" episode as a place where Zicari "issued a challenge to Attorney General [John] Ashcroft," saying that Ashcroft "could not do anything about his films." Zicari told ABC News that the language of the warrant indicated Ashcroft was waging a "vendetta" against him.
On Aug. 6, 2003, a federal grand jury in Pittsburgh returned a 10-count indictment against Extreme Associates Inc., for violating federal obscenity statutes by distributing, either through the mail or over the Internet, films judged obscene.
Since then, federal prosecutors have pursued similar cases. In March 2004 in Texas, a former Dallas police officer, Garry Layne Ragsdale, and his wife, Tamara Michelle Ragsdale, were convicted on charges relating to distributing obscene material from their business, labeled on their Web site as "the real rape video store." U.S. District Judge Sidney A. Fitzwater sentenced them to 33 months and 30 months in jail, respectively.
In July 2004 in Ohio, a couple pleaded guilty to a seven-count indictment relating to the selling or transferring of obscene material including some involving defecation, urination and bestiality. In November 2004, U.S. District Judge Paul R. Matia sentenced Ronald Urbassik to one year and one day in prison, as well as a $3,000 fine; his wife, Alina Urbassik, was sentenced to four months in prison.
The Court Case
Oral arguments in the case were heard on Nov. 1, 2004. Zicari's attorney, H. Louis Sirkin, repeatedly cited the Supreme Court's Lawrence vs. Texas ruling, noting that "the right to privacy really goes nowhere if I have no way to get it." Sirkin pointed out that the world has changed quite a bit since the "community standard" test was first established, in large part because of the Internet.
But Assistant U.S. Attorney Stephen Kaufman pointed out that though the Supreme Court has long ruled in favor of an individual's right to privacy, it has not ruled in favor of the right of individuals to produce and traffic in obscene materials.
"If you have the right to possess, does that mean someone else has a correlating right to distribute?" Kaufman asked. "The cases say no."
But Lancaster wondered if there was an inherent contradiction in an idea that Americans can possess obscene materials, but they cannot legally distribute them. Noting the First Amendment right of reporters covering the case to criticize him or Kaufman in print, he asked if the government could also find a way around that.
"Could you pass a law preventing the sale of ink?" Lancaster asked pointedly.
Ultimately, Lancaster's ruling leaned on two U.S. Supreme Court cases. One of them was Stanley vs. Georgia, a 1969 case involving an alleged bookmaker in whose home police found three reels of eight-millimeter pornographic material.
"If the First Amendment means anything," Justice Thurgood Marshall said in the 1969 majority decision, "it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."
The other case was Lawrence vs. Texas, which conservatives warned at the time would have much more far-reaching implications than just the Texas anti-sodomy law.
"The nation's obscenity laws cannot stand in light of Lawrence," Lancaster wrote.
Though Chief Justice William Rehnquist, and Justices Clarence Thomas and Antonin Scalia offered a dissenting opinion in Lawrence vs. Texas, in which they argued for a state's ability to establish a "moral code" of conduct, they were in the minority. The Lawrence 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."
Lancaster also found that federal anti-obscenity laws were drafted too broadly. Kaufman argued that the government's stated interest was to prevent minors and unwitting adults from being exposed to obscene materials. But Lancaster concluded that applied to the Extreme Associates case, "the federal obscenity statutes violate the constitutional guarantees of personal liberty and privacy of consenting adults who wish to view defendants' films in private."
Children and unwitting adults are adequately protected from the materials, Lancaster ruled. To receive them, one would have to access the defendants' Web site and join the members-only section, which requires a name, address and credit card.
"[O]nly those individuals who want to see defendants' films, indeed, want to see them badly enough that they are willing to pay to see them, are able to do so," Lancaster said.
There are adequate protections for children out there currently, he said, with software available for parents and schools to keep children off such Web sites, and the Federal Communications Commission judging that requiring payment by credit cards effectively restricts minors' access to porn phone lines, since such cards are not generally issued to minors.
Justice Department officials said they were reviewing the ruling and had no further comment beyond Buchanan's written statement.
DOJ to appeal obscenity case dismissal
Pittsburgh Business Times
February 16, 2005
U.S. Department of Justice officials said Wednesday that the government will appeal a recent Pittsburgh ruling that dismissed obscenity charges against a husband and wife who run a pornography business.
Robert Zicari and Janet Romano, of Northridge, Calif., and their company, Extreme Associates Inc., were charged in August 2003 with distributing obscene videos to Pittsburgh addresses through the mail and transmitting obscene images over the Internet.
U.S. Attorney Mary Beth Buchanan claimed that Extreme's videos showed "violent, brutal, degrading" material that depicted rape and murder of women.
Last month, U.S. District Court Judge Gary Lancaster threw out the charges, saying that people have a right to view such material in the privacy of their homes and Extreme has the right to market it.
But, in a press release announcing plans to appeal to the U.S. Circuit Court of Appeals for the Third Circuit, the Justice Department said that ruling, if upheld, "would undermine not only the federal obscenity laws, but all laws based on shared view of public morality, such as laws against prostitution, bestiality and bigamy."
Recently confirmed Attorney General Alberto Gonzales said the sale and distribution of obscene materials are not protected under the First Amendment.
"The Department of Justice remains strongly committed to the investigation and prosecution of adult obscenity cases," Mr. Gonzales said in a statement.
'Extreme' judicial activism
February 10, 2005
The Washington Times
By Orrin Hatch and Sam Brownback
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.