- The Washington Times - Wednesday, February 9, 2005

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.