                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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




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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
                 (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



                             2
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.1 Extreme Associates
maintained a website through which it engaged in the business
of producing, selling, and distributing obscene video tapes,



  1
  We hereinafter refer to Extreme Associates, Inc., Mr. Zicari,
and Ms. Romano collectively as “Extreme Associates.”

                               3
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 ten-
count indictment against Extreme Associates. The first count
was a conspiracy charge under 18 U.S.C. § 371 3 charging



  2
   For purposes of the motion to dismiss in the District Court,
Extreme Associates stipulated that the material available on its
website is legally obscene.
  3
      18 U.S.C. § 371 provides in pertinent part:


                                 4
Extreme Associates with conspiring to violate 18 U.S.C. §§




      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
1461 4 and 1465 5 by distributing obscene material through the


  4
      Section 1461 states in relevant part:

         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.
  5
      Section 1465 states in relevant part:

         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
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” 6 violate the right to privacy protected by the


       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.
   6
    Although the Government brought no charges in this case
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
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



      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
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

                                9
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.7 The Court concluded


  7
   To survive strict scrutiny, a statute must be narrowly tailored
to further a compelling state interest. See, e.g., Griswold v.
Connecticut, 381 U.S. 479, 497-98 (1965) (Goldberg, J.,

                               10
that, under such 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



concurring).
  8
   To survive rational basis review, a statute must be rationally
related to the advancement of a legitimate state interest. See,
e.g., Griswold, 381 U.S. at 504 (White, J., concurring).

                               11
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

                                12
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. Ledesma-
Cuesta, 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

                                13
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.



                                14
                               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

                               15
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

                               16
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,9 upheld the
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-

  9
    Although it does not deal directly with the question, Stanley
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
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

                                18
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.10 We
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


   10
     The District Court held, and Extreme Associates argues,
further, that certain key cases are meaningfully factually
distinguishable. We reject that argument. See section III.C.,
infra.

                               19
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

                              20
‘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” 11 referred to a right
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


    11
      Paris Adult Theatre dealt with a state statute, so the
operative due process provision was that of the Fourteenth
Amendment, rather than that of the Fifth Amendment at issue
here.

                                21
          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

                                  22
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.



                                23
       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-to-
privacy 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

                                24
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


  12
    We find especially puzzling the District Court’s conclusion
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
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; Thirty-
Seven 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.” 13 We decline to join appellees in that


     13
      We note that Extreme Associates’ Internet argument
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
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




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
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,


    14
      Were we to concede that the Supreme Court has or is
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
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 transactions that 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 overrules the 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

                               29
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.




                               30
