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74 U. Cin. L. Rev. 607 (2005-2006)
United States v. Extreme Associates, Inc.: The Substantive Due Process Death of Obscenity Law

handle is hein.journals/ucinlr74 and id is 619 raw text is: UNITED STA TES V. EXTREME ASSOCIATES, INC.:
THE SUBSTANTIVE DUE PROCESS DEATH OF
OBSCENITY LAW
Jennie G. Arnold*
I. INTRODUCTION
In January 2005, a federal district court invalidated the application of
four federal obscenity statutes, ruling the statutes unconstitutional as
they were applied.' Federal obscenity statutes have long been used to
prosecute those accused of distributing or transporting obscene
materials, but the recent decision of United States v. Extreme Associates,
Inc. uprooted the norm of obscenity law.2 The Extreme Associates court
accepted arguments that privacy and substantive due process rights
prevent the federal government from enforcing obscenity laws.3 This
new development marks an important shift in the law and demonstrates
that obscenity defense must not always be based on First Amendment
arguments.4 The district court's Extreme Associates decision was
overturned   in  December     2005.5     Nonetheless, this    Casenote's
examination of the district court decision is important for two reasons.
First, the appellate court did not deny that recent Supreme Court
decisions have undercut the foundational premises of obscenity law.
Further, more substantive due process attacks on obscenity law can be
expected and have strong potential to succeed.6
Obscenity has long clouded First Amendment jurisprudence.7
Obscenity has historically been analyzed under the First Amendment,
and obscenity defense teams have generally rebutted attempts to stifle
obscene speech with First Amendment arguments.8 After repeated
* Associate Member, 2004-2005 University of Cincinnati Law Review.
1. 352 F. Supp. 2d 578 (W.D. Pa.), rev'd, 431 F.3d 150 (3d Cir. 2005).
2. Id.
3. Id.
4. Id.
5. United States v. Extreme Associates, Inc., 431 F.3d 150 (3d Cir. 2005).
6. This Casenote focuses only on the district court decision.
7. In Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), Justice Potter Stewart noted that obscenity
may be indefinable, writing I know it when I see it. This represented the vagueness of the law of
obscenity prior to Miller v. California, 413 U.S. 15 (1973), being indefinite and subject to the perception
of the Supreme Court.
8. See, e.g., id.; Miller v. California, 413 U.S. 15 (1973); Paris Adult Theatre v. Slaton, 413

607

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