2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-8-2005

USA v. Extreme Assoc Inc

Precedential or Non-Precedential: Precedential

Docket No. 05-1555

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Extreme Assoc Inc" (2005). 2005 Decisions. Paper 26.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/26
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 05-1555

UNITED STATES OF AMERICA,

 Appellant

 v.

EXTREME ASSOCIATES, INC.;

ROBERT ZICARI, aka ROB BLACK;

JANET ROMANO, aka LIZZIE BORDEN

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No.: 03-cr-00203

District Judge: The Honorable Gary L. Lancaster

 

Argued October 19, 2005

Before: SMITH, STAPLETON, and NYGAARD,

Circuit Judges
2

(Filed: December 8, 2005)

 

Counsel:

Mary Beth Buchanan (Argued)

Office of United States Attorney

700 Grant Street

Suite 400

Pittsburgh, PA 15219

Christine A. Sanner

Office of United States Attorney

17 South Park Row

Room A330

Erie, PA 16501

Counsel for Appellant

H. Louis Sirkin (Argued)

Jennifer M. Kinsley

Sirkin, Penales, Schwartz

105 West Fourth Street

Suite 920

Cincinnati, OH 45202-2776

Counsel for Appellees

 

OPINION

 
 We hereinafter refer to Extreme Associates, Inc., Mr. Zicari, 1

and Ms. Romano collectively as “Extreme Associates.”

3

SMITH, Circuit Judge.

This appeal requires us to decide whether the District

Court erred by dismissing an indictment brought against

Extreme Associates, Inc. and its proprietors under 18 U.S.C. §§

1461 and 1465, which criminalize the commercial distribution

of obscene materials, on the ground that those statutes violate

the privacy rights of Extreme Associates’ customers under the

Fifth Amendment doctrine of substantive due process. Because

we conclude that the District Court improperly set aside

applicable Supreme Court precedent which has repeatedly

upheld federal statutes regulating the distribution of obscenity

in the face of both First Amendment and substantive due process

attacks, we will reverse the judgment of the District Court.

I.

A.

The parties do not dispute the relevant facts. Extreme

Associates, Inc. is a California corporation owned and operated

by Robert Zicari and Janet Romano. Extreme Associates 1

maintained a website through which it engaged in the business

of producing, selling, and distributing obscene video tapes,
 For purposes of the motion to dismiss in the District Court, 2

Extreme Associates stipulated that the material available on its

website is legally obscene.

 18 U.S.C. § 371 provides in pertinent part: 3

4

DVDs, and computer files in interstate commerce.2

As part of an investigation, undercover U.S. Postal

Inspectors visited the Extreme Associates website. The

Inspectors found that the website was divided into two sections,

one accessible to the general public, and one available to

members only. Members were required to register and to pay

$89.95 to gain access to the website for ninety days. From the

members-only portion of the website, a member, inter alia,

could download and view video clips. The general public could

order tapes for delivery by mail through the public portion of the

website. In the course of the investigation, Postal Inspectors

purchased certain videotapes from the public section of the

website, which Extreme Associates delivered through the U.S.

mails to undercover addresses. Inspectors also joined the

members-only section of the website and downloaded and

viewed several video clips.

On August 6, 2003, a federal grand jury returned a tencount indictment against Extreme Associates. The first count

was a conspiracy charge under 18 U.S.C. § 371 charging 3
If two or more persons conspire either to commit

any offense against the United States, or to

defraud the United States, or any agency thereof

in any manner or for any purpose, and one or

more of such persons do any act to effect the

object of the conspiracy, each shall be fined under

this title or imprisoned not more than five years,

or both.

18 U.S.C. § 371.

5

Extreme Associates with conspiring to violate 18 U.S.C. §§
 Section 1461 states in relevant part: 4

Every obscene, lewd, lascivious, indecent, filthy

or vile article, matter, thing, device, or substance

. . . [i]s declared to be nonmailable matter and

shall not be conveyed in the mails or delivered

from any post office or by any letter carrier.

Whoever knowingly uses the mails for the . . .

delivery of anything declared by this section . . .

to be nonmailable . . . shall be fined under this

title or imprisoned not more than five years, or

both, for the first such offense, and shall be fined

under this title or imprisoned not more than ten

years, or both, for each such offense thereafter.

18 U.S.C. § 1461.

 Section 1465 states in relevant part: 5

Whoever knowingly transports or travels in, or

uses a facility or means of, interstate or foreign

commerce or an interactive computer service . . .

in or affecting such commerce for the purpose of

sale or distribution of any obscene, lewd,

lascivious, or filthy book, pamphlet, picture, film,

paper, letter, writing, print, silhouette, drawing,

figure, image, case, phonograph recording,

electrical transcription or other article capable of

6

1461 and 1465 by distributing obscene material through the 4 5
producing sound or any other matter of indecent

or immoral character, shall be fined under this

title or imprisoned not more than five years, or

both.

18 U.S.C. § 1465.

 Although the Government brought no charges in this case 6

under 18 U.S.C. § 1462, Extreme Associates’ Motion to Dismiss

attacked the constitutionality of that statute as well, and the

District Court struck it down. We hereinafter refer to §§ 1461,

1462, and 1465 collectively as the “federal statutes regulating

the distribution of obscenity” or the “statutes.” Section 1462

states in relevant part:

Whoever brings into the United States . . . or

knowingly uses any express company or common

carrier or interactive computer service . . . for

carriage in interstate or foreign commerce – (a)

any obscene, lewd, lascivious, or filthy book,

pamphlet, picture, motion-picture film, paper,

7

mails and over the Internet. The remaining counts charged

substantive violations of §§ 1461 and 1465 and alleged

particular acts of distributing obscene materials in interstate

commerce via the mails and the Internet.

On October 9, 2003, Extreme Associates filed a motion

to dismiss the indictment on the ground that the “federal

obscenity statutes” violate the right to privacy protected by the 6
letter, writing, print, or other matter of indecent

character; or (b) any obscene, lewd, lascivious, or

filthy phonograph recording, electrical

transcription, or other article or thing capable of

producing sound . . . or [w]hoever knowingly

takes or receives, from such express company or

other common carrier or interactive computer

service . . . any matter or thing the carriage or

importation of which is herein made unlawful –

[s]hall be fined under this title or imprisoned for

not more than five years, or both, for the first such

offense and shall be fined under this title or

imprisoned for not more than ten years, or both,

for each such offense thereafter.

18 U.S.C. § 1462.

8

Due Process Clause of the Fifth Amendment. After briefing and

a hearing, the District Court declared the federal statutes

regulating the distribution of obscenity unconstitutional as

applied to Extreme Associates and dismissed the indictment in

a Memorandum and Order on January 20, 2005. The

Government appealed the dismissal.

B.

The analytical path taken by the District Court in

dismissing the indictment warrants particular attention. The

District Court began by concluding that Extreme Associates had
9

derivative standing to challenge the federal statutes regulating

the distribution of obscenity on behalf of its customers. Turning

to the merits, the Court noted that in Stanley v. Georgia, 394

U.S. 557 (1969), the Supreme Court recognized the First

Amendment right of an individual to possess, read, observe, and

receive obscene materials in the privacy of that individual’s

home, and that such a right is “fundamental” under the

Constitution. Because the Stanley Court also spoke of a privacy

right having to do with Stanley’s home, the District Court

opined that the case “represents a unique intersection between

the substantive due process clause’s protection of personal

liberty and privacy and the First Amendment’s protection of an

individual’s right to receive, and consider, [sic] information and

ideas.”

The District Court acknowledged that the Supreme Court

has refused to strike down the federal statutes regulating the

distribution of obscenity, or to recognize, as a corollary to the

right recognized in Stanley, a First Amendment right to

distribute obscene material. The District Court, however,

adopted the position advocated by Extreme Associates that

Stanley and its progeny, i.e., United States v. Reidel, 402 U.S.

351 (1971), United States v. Thirty-Seven (37) Photographs, 402

U.S. 363 (1973), United States v. 12 200-Ft. Reels of Super 8mm

Film, 413 U.S. 123 (1973), United States v. Orito, 413 U.S. 139

(1973), and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973),

were decided solely on First Amendment grounds rather than on

privacy grounds under the Substantive Due Process Clause. The
 To survive strict scrutiny, a statute must be narrowly tailored 7

to further a compelling state interest. See, e.g., Griswold v.

Connecticut, 381 U.S. 479, 497-98 (1965) (Goldberg, J.,

10

District Court also agreed with Extreme Associates that the

above cases are factually distinguishable from the case at bar in

that they dealt either with the importation of obscene material

from abroad or involved methods of distribution that were more

“public” than the Internet transmissions at issue here. 

Noting that Extreme Associates sought to challenge the

statutes not on its own behalf but on behalf of the individual

privacy rights of its customers, the District Court concluded that

because “[n]either the Supreme Court nor the Court of Appeals

for the Third Circuit has considered a substantive due process

challenge to the federal obscenity statutes by a vendor arguing

that the laws place an unconstitutional burden . . . on an

individual’s fundamental right to possess and view what he

pleases in his own home,” Extreme Associates’ challenge was

not precluded by the Reidel/Orito line of cases. According to

the District Court, the instant case is controlled instead by

Griswold v. Connecticut, 381 U.S. 479 (1965), Roe v. Wade, 410

U.S. 113 (1973), and their progeny.

Because Extreme Associates based its substantive due

process challenge on the existence of a “fundamental” right, the

District Court applied strict scrutiny to the federal statutes

regulating the distribution of obscenity. The Court concluded 7
concurring).

 To survive rational basis review, a statute must be rationally 8

related to the advancement of a legitimate state interest. See,

e.g., Griswold, 381 U.S. at 504 (White, J., concurring).

11

that, undersuch heightened scrutiny, the statutes could not stand

as applied to Extreme Associates because they were not

narrowly drawn to advance any compelling government interest.

Indeed, the District Court stated that the statutes could not be

sustained even under less stringent rational basis review.8

The District Court offered two reasons for its ruling.

First, the Court concluded that the principal rationale

undergirding the federal statutes regulating the distribution of

obscenity and the line of Supreme Court decisions upholding

them is no longer valid. More specifically, the District Court

stated that after the Supreme Court’s decision in Lawrence v.

Texas, 539 U.S. 558 (2003), “the government can no longer rely

on the advancement of a moral code, i.e., preventing consenting

adults from entertaining lewd or lascivious thoughts, as a

legitimate, let alone a compelling, state interest.” As such, the

District Court indicated that the Lawrence decision seriously

undermines the validity of the statutes themselves, as well as

earlier Supreme Court decisions upholding those statutes on

public morality grounds. Applying the above analysis to

Extreme Associates’ motion to dismiss, the Court concluded that

because “upholding the public sense of morality is not even a
12

legitimate state interest that can justify infringing one’s liberty

interest to engage in consensual sexual conduct in private,” such

a “historically asserted state interest certainly cannot rise to the

level of a compelling interest, as is required” under strict

scrutiny.

 Second, the District Court held that the Government’s

alternative asserted interests, i.e., putatively non-morality based

interests, were not narrowly advanced by the complete ban on

distribution of obscene materials embodied in the federal

statutes regulating the distribution of obscenity. The Court

stated that, owing to the character of the Internet generally and

the particular protective technologies employed by Extreme

Associates, the Government’s asserted interests of protecting

children and unwitting adults from exposure to obscenity could

be accomplished by means less restrictive than a total ban on

distribution. The Court added that because the latter of the two

interests was likely motivated, at least partially, by regard for

public morality, it would fail even rational basis review.

In sum, the District Court ruled that because Lawrence

invalidated the primary rationale for the federal statutes

regulating the distribution of obscenity and the Government’s

cited authority upholding them, and because the Government’s

remaining asserted interests, even if compelling, were not

narrowly advanced by those statutes, the statutes were

unconstitutional as applied to Extreme Associates on behalf of

its customers. The District Court dismissed the indictment on
13

that basis.

II.

A.

The District Court had original jurisdiction over this

criminal action under 18 U.S.C. § 3231. We exercise appellate

jurisdiction over the final judgment of a district court under 28

U.S.C. § 1291. Whether the District Court properly dismissed

the indictment against Extreme Associates is a question of law

of which our review is plenary. United States v. LedesmaCuesta, 347 F.3d 527, 530 (3d Cir. 2003); United States v.

DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000).

B.

As a preliminary matter, we agree with the District Court

that Extreme Associates has derivative standing to challenge the

constitutionality of the federal statutes regulating the distribution

of obscenity on behalf of its customers. The Supreme Court

consistently has upheld the ability of vendors to challenge the

constitutionality of statutes on their customers’ behalf where

those statutes are directed at the activity of the vendors. In

Carey v. Population Services International, 431 U.S. 678, 682-

84 (1977), the Court held that a mail-order seller of non-medical

contraceptives had standing to argue that a state statute

prohibiting the distribution of non-medical contraceptives
14

violated its customers’ substantive due process rights to use such

contraceptives. Also, in Craig v. Boren, 429 U.S. 190, 195

(1976), the Court upheld the ability of a beer seller to challenge

a state statute on behalf of certain underage customers. The

Court noted that “vendors and those in like positions have been

uniformly permitted to resist efforts at restricting their

operations by acting as advocates of the rights of third parties

who seek access to their market or function.” Id. Accordingly,

Extreme Associates has standing to challenge the federal

statutes regulating the distribution of obscenity as violative of

the substantive due process rights of its customers.

III.

In its Memorandum, the District Court notes briefly, but

never directly addresses, the Government’s contention that

“because the federal obscenity statutes have withstood

constitutional attack for more than thirty-five years, this court

lacks the authority to find that they are unconstitutional.” The

Government’s brief on appeal raises the same issue by asserting,

essentially, that the District Court erred by granting relief which

effectively overturns applicable Supreme Court precedents on

the ground that those precedents have been undermined or

implicitly overruled by a subsequent Supreme Court decision.

We agree with the Government that the District Court was in

error, and we conclude that the District Court’s violation of the

principle articulated below requires reversal.
15

A.

In Rodriguez de Quijas v. Shearson/American Express

Inc., 490 U.S. 477, 484 (1989), the Supreme Court explicitly

admonished lower courts that “[i]f a precedent of this Court has

direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.” See also

id. (pointing out specifically that the Court of Appeals, “on its

own authority,” should not have “taken the step of renouncing”

a previous Supreme Court decision interpreting the Securities

Act, even as the Court itself goes on to overrule the decision in

that very case). The Court reiterated its position in Agostini v.

Felton, 521 U.S. 203, 237 (1997), stating “[w]e do not

acknowledge, and we do not hold, that other courts should

conclude our more recent cases have, by implication, overruled

an earlier precedent.” Id. The Court then proceeded to

“reaffirm” the precise language quoted above from Rodriguez.

Id. The Court explained that “[a]dherence to this teaching by

the District Court and Court of Appeals in this litigation does

not insulate a legal principle on which they relied from our

review to determine its continued vitality,” as lower courts are

free to consider the issues and preserve them for the Court even

as they obey controlling precedent. Id. at 237-38. In fact, even

as the Court in Agostini concluded that its own adherence to the

old precedent “would undoubtedly work a ‘manifest injustice’”

in light of later decisions, it emphasized that “the trial court
16

acted within its discretion in entertaining the motion [requesting

relief under the newer cases] with supporting allegations, but it

was also correct to recognize that the motion had to be denied

unless and until this Court reinterpreted the binding precedent.”

Id. at 236, 238 (emphasis added).

Our own cases steadfastly apply the Agostini doctrine.

See United States v. Singletary, 268 F.3d 196, 205 (3d Cir.

2001) (quoting Agostini and indicating that “[w]e have always

sought to adhere strictly to that counsel”); United States v.

Abuhouran, 161 F.3d 206, 215 n.9 (3d Cir. 1998); Moldonado

v. Houstoun, 157 F.3d 179, 190 (3d Cir. 1998); United States v.

Bishop, 66 F.3d 569, 588 n.28 (3d Cir. 1995); Swin Resource

Sys., Inc. v. Lycoming County, 883 F.2d 245, 255 (3d Cir. 1989).

In fact, we emphasized in Singletary that even where a lower

court’s analytical position has merit, the obligation to follow

applicable Supreme Court precedent is in no way abrogated:

even if there were merit to Singletary’s argument

that the Supreme Court’s [later] decisions have

somehow weakened the precedential value of [the

older case], we may not precipitate its decline.

The Supreme Court itself has admonished lower

courts to follow its directly applicable precedent,

even if that precedent appears weakened by

pronouncements in subsequent decisions . . . .

Singletary, 268 F.3d at 205. We reaffirm our intent to adhere
 Although it does not deal directly with the question, Stanley 9

itself, by implication, recognized the constitutionality of the

federal statutes regulating the distribution of obscenity even as

it recognized the right to possess and observe obscene materials

in the home. See Stanley, 394 U.S. at 567-68 (indicating that

even if prohibiting obscenity possession is necessary to facilitate

the enforcement of statutory schemes prohibiting its distribution,

the right to possess materials within the privacy of the home is

so important that “its restriction may not be justified by the need

to ease the administration of otherwise valid criminal laws.”)

(emphasis added).

17

strictly to the principle articulated by the Supreme Court in

Agostini. It follows that the District Court also was bound by

that principle as it considered Extreme Associates’ motion to

dismiss the indictment.

B.

In this appeal, then, we must decide whether Reidel’s

progeny, which the District Court found to be undermined by

Lawrence, was “directly applicable” to Extreme Associates’

motion to dismiss the indictment. As an analytical matter, we

answer that question in the affirmative. In the broadest and

most obvious sense, the Supreme Court has explicitly and

repeatedly, in decisions rendered post-Stanley, upheld the 9

constitutionality of federal statutes regulating the distribution of

obscenity. See Reidel, 402 U.S. at 351; Thirty-Seven

Photographs, 402 U.S. at 363; Orito, 413 U.S. at 139; 12 200-
18

Ft. Reels, 413 U.S. at 123.

Furthermore, the above cases consistently uphold the

constitutionality of the statutes as applied to the right recognized

in Stanley. See, e.g., Thirty-Seven Photographs, 402 U.S. at

376; Orito, 413 U.S. at 141. The Court has stated clearly that

the right recognized in Stanley to possess obscene material

within the home (and, by logical implication, the ability to

exercise that right) “does not mean” that there is a correlative

right to distribute that material, Thirty-Seven Photographs, 402

U.S. at 376, that it “does not require” the Court to fashion a right

to distribute, Reidel, 402 U.S. at 356, and that the Stanley

“‘right to receive’ is not a right to the existence of modes of

distribution of obscenity, which the State could destroy without

serious risk of infringing on the privacy of a man’s thoughts;

rather, it is a right to a protective zone ensuring the freedom of

a man’s inner life . . . .” Id. at 359 (Harlan, J., concurring)

(emphasis added).

It bears noting as well that in more than one of the cases

following Stanley, the Court heard and rejected the arguments

of dissenting Justices that proscribing distribution or private

transportation of obscene materials evacuated the Stanley right

of any significant meaning. See Thirty-Seven Photographs, 402

U.S. at 381 (Harlan, J., dissenting) (arguing that the right to

possess and read obscene material at home “is hollow indeed”

without some right to transport it); Orito, 413 U.S. at 14

(Douglas, J., dissenting) (asserting that there is no distinction
 The District Court held, and Extreme Associates argues, 10

further, that certain key cases are meaningfully factually

distinguishable. We reject that argument. See section III.C.,

infra.

19

between private possession and private carriage of obscene

material, and arguing that upholding the federal statutes

regulating the distribution of obscenity necessitates overruling

Stanley).

Most relevant to this appeal, the Supreme Court also has

upheld the federal statutes regulating the distribution of

obscenity specifically in light of the Court’s broader privacy

jurisprudence. The District Court stated that Stanley and its

progeny do not control the Extreme Associates’ motion to

dismiss because those cases were all decided merely on the basis

that obscenity is not protected under the First Amendment.

Extreme Associates argues that Reidel’s progeny dealt only with

a “First Amendment concept of privacy.” As such, the argument

runs, the pivotal obscenity cases ignored substantive due process

analysis of the “private possession” right recognized in Stanley

and, therefore, did not govern the motion to dismiss. We 10

disagree. It is true that none of the major cases use the phrase

“substantive due process” in their holdings, but it is clear –

particularly in Orito and Paris Adult Theatre – that the Court

analyzed the federal statutes regulating the distribution of

obscenity under both the principles and precedents that,

according to the District Court and Extreme Associates, should
20

control this case. Moreover, where such analysis does appear,

the Court has found challenges to the statutes under the general

constitutional right to privacy unavailing.

In Orito, for example, the defendant was prosecuted

under § 1462 for privately transporting obscene material in

interstate commerce (to wit, knowingly carrying obscene

materials in his private luggage on a domestic commercial

flight). Orito “moved to dismiss the indictment on the ground

that the statute violated both his First and Ninth Amendment

rights.” Orito, 413 U.S. at 140 (emphasis added). In dismissing

the indictment, the Supreme Court explained that the District

Court had misinterpreted not only Stanley, but also Griswold to

establish constitutional protection for the “non-public”

transportation of obscene material. Id. at 140-41.

As part of its analysis, the Orito Court noted that the

Constitution “extends special safeguards to the privacy of the

home, just as it protects other special privacy rights such as

those of marriage, procreation, motherhood, child rearing, and

education.” Id. at 142. To support that assertion, the Court

cited, inter alia, Eisenstadt v. Baird, 405 U.S. 438 (1972), and

Griswold. Id. The Court elected, fully conscious of the right

recognized in Stanley, to exclude transporting obscene material

in interstate commerce from “such special consideration.”

Orito, 413 U.S. at 142. In upholding the statute at issue, the

Court pointed out that the District Court had “erred in striking

down 18 U.S.C. § 1462 and dismissing the indictment on these
 Paris Adult Theatre dealt with a state statute, so the 11

operative due process provision was that of the Fourteenth

Amendment, rather than that of the Fifth Amendment at issue

here.

21

‘privacy’ grounds.” Id. at 141 (emphasis added). The Court

also stated – again, fully conscious of and having made

reference to the right articulated in Stanley – that in its decision

to uphold bans on transporting obscene material within the

stream of commerce, “no constitutionally protected privacy is

involved.” Id. at 143.

Similarly, in Paris Adult Theatre, though the Court dealt

with obscenity in a “place of public accommodation” (a theater),

much of the Court’s analysis dealt squarely with the general

constitutional right to privacy as it relates to the Stanley right.

The Court first explained the scope of the right in question by

indicating that its “prior decisions recognizing a right to privacy

guaranteed by the Fourteenth Amendment” referred to a right 11

that “encompasses and protects the personal intimacies of the

home, the family, marriage, motherhood, procreation and child

rearing.” Paris Adult Theatre, 413 U.S. at 65 (emphasis added).

To support this proposition, the Court cited Eisenstadt, Griswold

and Stanley. Id. The Court noted the legally operative

difference between the Stanley right and those deriving from

Griswold and Roe:

The protection afforded by Stanley . . . is
22

restricted to a place, the home. In contrast, the

constitutionally protected privacy of family,

marriage, motherhood, procreation, and child

rearing is not just concerned with a particular

place, but with a protected intimate relationship.

Such protected privacy extends to the doctor’s

office, the hospital, the hotel room, or as

otherwise required to safeguard the right of

intimacy involved.

Id. at 66 n.13 (citing Roe and Griswold).

The Court applied the above analysis in reaching its

result:

If obscene material . . . carried with it a

‘penumbra’ of constitutionally protected privacy,

this Court would not have found it necessary to

decide Stanley on the narrow basis of the ‘privacy

of the home,’ which was hardly more than a

reaffirmation that a man’s home is his castle. . . .

Moreover, we have declined to equate the privacy

of the home relied on in Stanley with a ‘zone’ of

‘privacy’ that follows a distributor or a consumer

of obscene materials wherever he goes.

Paris Adult Theatre, 413 U.S. at 66 (citing Stanley, Orito)

(emphasis added). Finally, summarizing the case, the Court
23

indicated it had “reaffirmed [its] holding[]” that “commerce in

obscene material is unprotected by any constitutional doctrine

of privacy.” Id. at 69 (citing Orito, Reidel, Thirty-Seven

Photographs and 12 200-Ft. Reels) (emphasis added).

We conclude that the Supreme Court has analyzed and

upheld the federal statutes regulating the distribution of

obscenity under the constitutional right to privacy embodied

collectively in the First, Ninth, and Fourteenth (thus also the

Fifth) Amendments, as well as the Griswold line of decisions

that the District Court asserted should control this case. The fact

that such analysis has never been applied within the precise

scenario outlined by the District Court – i.e., use of the

talismanic phrase “substantive due process” in the context of a

vendor proceeding under derivative standing on behalf of a

consumer’s right to privately possess obscene material – does

not negate the binding precedential value of the Supreme Court

cases employing that analysis. The Court’s analysis need not be

so specific in order to limit a district court’s prerogative to

overturn an entire category of federal statutes, even as applied

to particular defendants, based on speculation about a later

decision that fails even to mention those statutes. The Court has

considered the federal statutes regulating the distribution of

obscenity in the context of the broader constitutional right to

privacy and upheld them. That such analysis was conducted

absent its constitutional brand name does not negate its

precedential value.
24

In sum, the District Court’s Order granting Extreme

Associates’ motion to dismiss the indictment, as well as Extreme

Associates’ brief on appeal, deal with the same statutes upheld

repeatedly by the Supreme Court. They assert (albeit

derivatively) the same right referenced and analyzed in multiple

Supreme Court decisions – all of which declined to strike down

any part of any statute regulating the distribution of obscenity .

Finally, the Supreme Court has analyzed and upheld the

constitutionality of the federal statutes regulating the distribution

of obscenity specifically in light of the Court’s broader right-toprivacy jurisprudence.

C.

We now turn to whether Reidel and its progeny, which

we find analytically apposite, are meaningfully factually

distinguishable from the case at bar. If there is a material

factual distinction between the instant case and the putatively

controlling precedent, analysis under Agostini is wholly

inappropriate. Where, as here, an “as applied” constitutional

challenge, rather than a facial one, is before the court, this

analytical step is of particular importance. The District Court

concluded, and Extreme Associates now argues on appeal, that

the key cases in the Reidel line can be distinguished on their

facts inasmuch as (1) none of the key cases address substantive

due process privacy rights; (2) certain of the cases dealt

exclusively with border and importation issues; and (3) none of

the previous obscenity decisions involved transmissions over the
 We find especially puzzling the District Court’s conclusion 12

that Orito is “distinguishable on [its] facts.” The District Court

concluded that Orito was factually distinguishable because the

Court in that case “held that the obscenity statutes could be

justified as a method of protecting the public morality, a

justification no longer valid after Lawrence.” That observation

fails to distinguish Orito factually in any way, and, as we discuss

below, is analytically irrelevant to the disposition of this case.

25

Internet. We are unpersuaded by these arguments, however, and

we conclude that Orito and the other key cases discussed above

are sufficiently similar to the instant case to govern it.12

First, as discussed at length in section III.B., the District

Court Memorandum adopted Extreme Associates’ position that

all of the relevant obscenity cases following Stanley are

distinguishable inasmuch as none of those cases involved a

substantive due process privacy challenge against the federal

statutes regulating the distribution of obscenity or engaged in

such privacy analysis. As we have indicated, we adjudge those

assertions to be incorrect, and we need not discuss them further

here.

Second, both the District Court and Extreme Associates

attempt to distinguish 12 200-Ft. Reels and Thirty-Seven

Photographs on the ground that they deal exclusively with

importation and border issues, arguing that such a context

necessarily triggers a different analytical framework. This
We note that Extreme Associates’ Internet argument 13

necessarily fails to distinguish three of the counts of the

indictment involved in this case. Three counts allege that

Extreme Associates distributed obscene materials through the

26

argument is a closer call, but it is also unavailing. Though

importation issues do provide the factual backdrop of both

cases, both cases engage in standard Stanley analysis and are at

least generally concerned with Congress’s ability, upheld in both

cases, to bar transportation of obscene materials in the channels

of commerce. See 12 200-Ft. Reels, 413 U.S. at 128; ThirtySeven Photographs, 402 U.S. at 376. At all events, even if we

were to grant that 12 200-Ft. Reels and Thirty-Seven

Photographs are relevantly distinguishable, Orito still deals

squarely with Stanley, the federal statutes regulating the

distribution of obscenity, privacy, and the ability of Congress

constitutionally to ban any presence of obscene material in

domestic interstate commerce. Orito alone provides directly

applicable precedent as to the instant appeal.

Finally, Extreme Associates argues that the relevant cases

are distinguishable because they “were all decided before the

advent of the Internet,” suggesting that “the commercial

transportation of obscenity considered by the Court [in those

cases] was of a more public variety than the Internet commerce

at issue here.” As such, “[t]he concern for community decency

and order that arose in [the other obscenity cases] is irrelevant

to this prosecution.” We decline to join appellees in that 13
United States mail. Identical conduct was at issue in the case of

United States v. Reidel, 402 U.S. 351 (1971). Seven of the ten

counts in the present indictment, however, do pertain to

distributing video clips to home computers through the Internet.

27

analytical leap. The mere fact, without more, that the instant

prosecution involves Internet transmissions is not enough to

render an entire line of Supreme Court decisions inapplicable

given their analytical and other factual similarities to this case.

Extreme Associates correctly quotes dicta from Reno v.

American Civil Liberties Union, 521 U.S. 844 (1997), indicating

that the Internet is “a unique and wholly new medium of

worldwide communication.” Id. at 850 (citing without comment

finding of fact 81 from the District Court in that case). In the

same case, however, the Court noted that “[t]ransmitting

obscenity . . . whether via the Internet or other means, is already

illegal under federal law for both adults and juveniles,” and

implied that the “Child Decency Act,” a statute regulating

pornography over the Internet at issue in Reno, might be

unnecessary owing to the existing federal statutes regulating the

distribution of obscenity. Id. at 878 n.44 (citing 18 U.S.C. §

1465). In other words, the Court thus far has not suggested that

obscenity law does not apply to the Internet or even that a new

analytical path is necessary in Internet cases. If the Supreme

Court wishes to treat all Internet obscenity cases as sui generis

for purposes of federal obscenity law analysis, it has not yet said
 Were we to concede that the Supreme Court has or is 14

prepared to analyze obscene Internet transmissions differently

because, unlike the acts involved in Orito and other cases, such

transmissions involve no “physical” transportation of obscenity

outside the home, that concession would not save Extreme

Associates’ motion. The holding in Orito, for example, involves

two prongs: (1) Congress may regulate obscenity on the basis of

the danger that it will not remain private once it physically

leaves the home in any way, Orito, 413 U.S. at 143; and (2)

irrespective of any such danger, Congress may prevent interstate

commerce and the channels thereof from being used to spread

evil of a physical, moral or economic nature. Congress may

therefore keep all obscene material entirely out of the stream of

commerce. Id. at 143-44. At most, the aforementioned

concession regarding the Internet would compromise prong (1).

As we discuss below, the second prong stands unscathed for

purposes of this appeal and, on its own, would dictate the result.

28

so, “tacitly” or otherwise.14

Even clearer is the fact that Orito and Paris Adult

Theatre affirm the power of Congress to “regulate interstate

commerce to the extent of forbidding and punishing the use of

such commerce as an agency to promote immorality . . . or harm

to the people of other states from the state of origin.” Orito, 413

U.S. at 144 n.6; see also id. at 144 (“Congress may impose

relevant conditions . . . on those who use the channels of

interstate commerce in order that those channels will not

become the means of spreading evil, whether of a physical,
29

moral or economic nature”); id. at 143 (“[t]hat the transporter

has an abstract proprietary power to shield the obscene material

from all others and to guard the material with the same privacy

as in the home is not controlling”); Paris Adult Theatre, 413

U.S. at 58 (“we hold that there are legitimate state interests in

stemming the tide of commercialized obscenity, even assuming

it is feasible to enforce effective safeguards against exposure to

juveniles and passersby”); id. at 69 (“commerce in obscene

material is unprotected by any constitutional doctrine of

privacy”) (emphasis added). The Internet is a channel of

commerce covered by the federal statutes regulating the

distribution of obscenity. Extreme Associates was indicted for

engaging in commercial transactionsthat its own brief on appeal

describes as “Internet commerce.” This case cannot be

meaningfully distinguished merely because it involves the

Internet.

IV.

We are satisfied that the Supreme Court has decided that

the federal statutes regulating the distribution of obscenity do

not violate any constitutional right to privacy. For district and

appellate courts in our judicial system, such a determination

dictates the result in analogous cases unless and until the

Supreme Court expressly overrulesthe substance of its decision.

Lawrence v. Texas represents no such definitive step by the

Court. It was therefore impermissible for the District Court to

strike down the statutes at issue based on speculation that Orito
30

and other pivotal obscenity cases “appear[] to rest on reasons

rejected in” Lawrence. Agostini, 521 U.S. at 237. Even if there

were analytical merit to such speculation, an issue on which we

do not opine, the constraint on lower courts remains the same.

The possibility that Lawrence has “somehow weakened the

precedential value of” the Reidel line of cases is irrelevant for

purposes of ruling on the instant indictment. Singletary, 268

F.3d at 205.

We conclude that directly applicable Supreme Court

precedent, upholding the constitutionality of the federal statutes

regulating the distribution of obscenity under First Amendment

and substantive due process privacy rights, governs this case.

The District Court was bound by that authority, as are we, to

uphold those statutes as applied to Extreme Associates on behalf

of its customers. As such, the District Court erred in striking

down the statutes and dismissing the indictment against Extreme

Associates. 

Accordingly, we will reverse the Order of the District

Court and remand the case for further proceedings consistent

with this opinion.