This is a great article, with the legal arguments for both sides spelled out. There is no way to even get the gist of the whole article in 4 paragraphs, so I have provided a snippet of the defense argument.
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Extreme Case Is About Privacy, Not Obscenity: Attorney
By: Mark Kernes
Posted: 2:23 pm PDT 10-20-2005
<snip>
When it came Sirkin’s turn to present his case, he cut right to the heart of the matter. What is missed, he said, is that this isn’t a First Amendment liberty interest challenge, but rather a challenge based on the liberty and privacy interests to be found in the substantive due process rights guaranteed under the Fifth Amendment.
“She
didn’t address the Fifth Amendment argument, the substantive due process argument, which is the whole guts of the case and the whole guts of Judge Lancaster’s decision,” Sirkin later noted. “She absolutely did not talk about it. She talked about traditional First Amendment law, and I don’t think she can. After Lawrence opened the door back up, they have to go back and revisit Stanley.”
<snip>
“It’s Stanley to Griswold to Lawrence,” analyzed attorney Allan Gelbard, who also observed the proceedings. “The history is that initially when contraception was a big deal, the Supreme Court ruled that people had a right to practice it, but there were still states that restricted sales because of their religious beliefs by saying, ‘Well, you can have it, but we’re not going to let anybody sell it to you.’ What Griswold is all about is that particular issue.”
“Now, in light of Lawrence, where people have fundamental rights to sexuality and a much broader sense of it than was anticipated before, if you have a fundamental right to watch dirty movies in the privacy of your own home, which is what Stanley says, then somebody has a right to get them there, and if the fundamental right of the liberty interest is expanded, which is what Lawrence does, then the old cases like Paris Adult Theatre aren’t good law anymore. They’re not overruled in the sense that the Court is going to say, ‘We hold Paris Adult Theatre to be overruled.’ What it does is, it undercuts the rationale for Paris, which is, the government has the ability to restrict these types of establishments because they want to protect the morality of the public, and people could walk into a movie theater not knowing what they’re going to see, and this type of a seedy theater would bring down the society and arguments like that, all based on morality. What Lawrence says is, morality isn’t a good enough reason anymore, and when you look at that, you ask, what is the government interest? It doesn’t have one anymore. Now you’re looking at a fundamental right.”
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Much, much more in the article (WARNING - from adult video news, may contain sexually explicit advertising and not work friendly)
http://www.avnonline.com/index.php?Primary_Navigation=Web_Exclusive_News&Action=View_Article&Content_ID=244184
As a side note: Lou Sirkin is my law office, and Jennifer Kinsley (mentioned in the article) is my lawyer. I worship the ground she walks on!
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