Opinion
Criminal No. 3:04-CR-170-H.
February 2, 2005
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Joint Motion to Reconsider Joint Motion to Dismiss on Substantive Due Process Grounds, filed January 27, 2005. Defendants' Joint Motion to Reconsider is based entirely on Judge Lancaster's recent opinion in the Western District of Pennsylvania in United States v. Extreme Assocs., Inc., et al., Cr. No. 03-0203, 2005 WL 121749 (W.D. Pa. Jan. 20, 2005) (Lancaster, J.), which held the federal obscenity statutes unconstitutional violations of the right to substantive due process as applied to those defendants. For the reasons stated below, the Court DENIES Defendants' Joint Motion to Reconsider.
As noted in the Court's Order, entered January 3, 2005, under Supreme Court precedent, the federal obscenity statutes are not unconstitutionally vague, Smith v. United States, 431 U.S. 291, 308-09 (1977); Hamling v. United States, 418 U.S. 87, 110-16 (1974); United States v. Hill, 500 F.2d 733, 739 (5th Cir. 1974), nor do they violate due process for a lack of notice of illegal behavior. Smith, 431 U.S. at 308-09; Roth v. United States, 354 U.S. 476, 492 n. 30 (1957); Hamling, 418 U.S. at 101.
Defendants assert that the statute in question burdens a fundamental right and therefore should be analyzed using the strict scrutiny standard. See Zablocki v. Redhali, 434 U.S. 374, 388 (1978). Defendants argue that a fundamental right to privacy exists to view obscene material in the home. (Def.'s Mot. at 3, 6.) However, "[e]xhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy. . . . Nor can the privacy of the home be equated with a 'zone' of 'privacy' that follows a consumer of obscene materials wherever he goes." Paris Adult Theatre I, 413 U.S. at 50 (distinguishing Stanley v. Georgia, 394 U.S. 557 (1969)) (internal citations omitted); see Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 574 (2002); United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 128 (1973); United States v. Orito, 413 U.S. 139, 141 (1973); United States v. Reidel, 402 U.S. 351, 354-55 (1971). Accordingly, the Court concludes that no fundamental right exists to receive commercially distributed obscene materials through public channels, even when those materials are eventually viewed in the privacy of one's home. See United States v. Thomas, 74 F.3d 701, 710 (6th Cir. 1996) ("[T]he right to possess obscene materials in the privacy of one's home does not create 'a correlative right to receive it, transport it, or distribute it' in interstate commerce even if it is for private use only.") (internal citations omitted).
Defendants next seek the Court to find a fundamental right to sexual privacy which would mandate the application of a strict scrutiny standard. However, the courts must "exercise the utmost care whenever asked to break new ground" by establishing a new fundamental right. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (internal citation omitted). Despite Judge Lancaster's interpretation in the Extreme Associates case, this Court is of the opinion that Lawrence v. Texas, 539 U.S. 558 (2003), did not create a new fundamental right to sexual privacy. See Lofton v. Sec'y of Dep't of Children Family Servs., 358 F.3d 804, 815-17 (11th Cir. 2004), pet. for reh'g en banc denied, Lofton v. Sec'y of Dep't of Children Family Servs., 377 F.3d 1275, 1283-90 (11th Cir. 2004) (concluding that Lawrence's holding was based upon a rational-basis review).
Because no fundamental right was created in Lawrence and no existing fundamental right was burdened by the statute, application of a strict scrutiny standard of review to the statutes in question is not appropriate. See Zablocki, 434 U.S. at 388; Shapiro v. Thompson, 394 U.S. 618, 634 (1969). The Court is further of the opinion that the relationship between the government action and the alleged fundamental right is too tenuous and indirect to warrant heightened review. See Flaskamp v. Dearborn Public Schools, 385 F.3d 935, 942 (6th Cir. 2004). Rational basis review is therefore proper. See Montgomery v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996).
Under the rational basis standard, the Fifth Circuit and Supreme Court have adequately addressed the government's reasons for establishing obscenity statutes and found them to be legitimate. See Miller v. California, 413 U.S. 15, 18-19 (1973) ("States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles."); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 76-77 n. 1 (1983) (Rehnquist, J., concurring) (recognizing a legitimate interest in protecting minors from accessing a home mailbox which may contain obscene materials and noting that reliance on the legitimate purposes that a statute now serves is sufficient, "even if the original reasons for enacting the statute would not suffice to support it") (internal citations omitted); see also Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1035 (5th Cir. 1981) (citing Miller). This Court is bound by Supreme Court and Fifth Circuit precedent, and therefore finds the government's proferred reasons, as argued in the Fifth Circuit and the Supreme Court, to be legitimate, rational, and reasonably related to the statutes in question.
Defendants rely on the Extreme Associates ruling for the proposition that Lawrence v. Texas, 539 U.S. 558 (2003), made protecting morality an illegitimate government reason. This Court does not agree with such an interpretation of Lawrence. See Williams v. Att'y General of Ala., 378 F.3d 1232 (11th Cir. 2004). Furthermore, the government has articulated, and the courts have accepted, other proffered reasons as legitimate. Accordingly, the Court finds the statutes both facially and as-applied to Defendants and consumers constitutional.
Accordingly, Defendants' Motion to Reconsider must be DENIED.
SO ORDERED.