They missed it when a Pittsburgh federal judge dismissed charges against Extreme Associates at the urging of Cincinnati lawyers H. Louis Sirkin and Jennifer Kinsley (see Media, Myself & I, issue of Feb. 2-8). Judge Gary L. Lancaster agreed that federal anti-obscenity laws were unconstitutional.
The Department of Justice is appealing that decision to the free-speech-friendly U.S. Court of Appeals for the Third Circuit. Again, nothing reported here as of this writing. The New York Times reported the Justice Department's appeal, but it missed the initial decision.
You can follow the case here or on avn.com, a news site for the porn industry that includes Sirkin's pokes at Cincinnati pieties.
Then there was the Sirkin-Kinsley loss in the Shawn Jenkins case on Dec. 30 in the First District (Hamilton County) Court of Appeals. It went unreported although Jenkins' conviction under Ohio law for pandering obscenity was covered. He was prosecuted for selling Max Hardcore Extreme Volume No. Seven at his Tip Top Video store in Corryville. Sirkin and Kinsley are asking the Ohio Supreme Court to reverse that decision.
At the risk of writing about law in a media column, these decisions deserve further comment.
In both cases, Sirkin and Kinsley relied on the U.S. Supreme Court's 2003 Lawrence vs. Texas decision striking down the state ban on homosexual sodomy. The Supreme Court said the ban was an unconstitutional violation of the Due Process Clause because "liberty protects the person from unwarranted government intrusions into a dwelling or other private places."
But Sirkin and Kinsley also used Justice Antonin Scalia's dissent in Lawrence to extend that defense to people who sell obscene videos for private pleasure. Scalia had bemoaned the majority's decision as the death of morality-based laws. Yes, said Sirkin and Kinsley, and Judge Lancaster agreed, saying, "Public morality is not a legitimate state interest sufficient to justify infringing on adult, private consensual sexual conduct even if that conduct is deemed offensive to the general public's sense of morality."
But Pittsburgh isn't Cincinnati, Toto.
Writing for the 3-0 decision here, Judge Robert Gorman said, "Justice Scalia was entitled to his opinion, but we do not share his view that Lawrence was intended to have such dire consequences for a moral majority. Nor do we accept Jenkins' attempt to use Justice Scalia's remarks to turn Lawrence into . . . a substantive due process right to sell obscene materials."
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If a terrorist infiltrated a White House news briefing by pretending to be a reporter and tossed a bomb instead of a softball question, the press corps would find bodies blown instead of their minds. So might the president.
Lest you think this fantasy arises from my frostbitten Democratic Farmer-Labor Party mind, heed chattering classes: How did "Jeff Gannon," a Republican shill posing as a reporter -- when not offering himself as a Web-based gay stud -- fool everyone protecting the president?
Gannon was a nom de guerre embraced by James Dale Guckert, then Washington "bureau chief" for conservative TalonNews.com and GOPUSA. He attended White House press conferences on daily visitor press passes because Talon is not a real news agency and he couldn't get a regular pass.
Presidential spokesman Scott McClellan and Bush called on him for friendly questions. Real reporters finally asked, "Who the hell is this guy?" and bloggers, albeit not those who torpedoed Kerry's not-so-Swift candidacy, joined the chase. Together they blew Gannon's cover, found his naked escort photos and quicker than you can say Eason Jordan or Dan Rather he quit Talon.
"There are people out there who will turn people's lives inside out," The Wilmington New-Journal quoted Gannon/Guckert as saying. "They tried to intimidate me, punish me. Then they tried to embarrass me and they've done a pretty good job of that."
Why didn't he add, "I'm shocked, shocked"?
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At the World Economic Forum in Davos, Switzerland, Eason Jordan, then head of news at CNN, suggested that American troops in Iraq are targeting journalists. A Miami area businessman, Rony Abovitz, was in the audience. When no one reported Jordan's comment, Abovitz posted it on his blog.
"It sounded as if he was saying the killings had been deliberate," U.S. Rep. Barney Frank (D-Mass.), who was in the audience, told The Miami Herald. Frank said he challenged Jordan, who responded, "I'm not saying this is American military policy." Then, Frank continued, "My recollection is that he next said that American military personnel had deliberately shot at journalists and had not been punished." Frank said he asked Jordan if he were talking about mistaken identify or the heat of battle, and Jordan said no.
Sen. Christopher Dodd (D-Conn.) and a spokeswoman for David Gergen, editor of U.S. News & World Report who led the program, confirmed this understanding of Jordan's comments. Alerted by Abovitz, bloggers went after Jordan. He quit CNN, giving media-hostile bloggers another victim and raising further questions about the timidity of mainstream media.
Jordan's accusation was not unique ... or news. The press corps said it when a tank gunner killed a TV videographer and others in the hotel that everyone knew was Press Central in Baghdad. The accusation was renewed after an attack on Al-Jazeera's headquarters there. It is raised each time U.S. forces kill a journalist.
Jordan also is the guy who said CNN suppressed news of Saddam Hussein's atrocities for a decade to protect Baghdad staff. Others heard that as his attempt to spin CNN's quid pro quo for access to Hussein.
Ben L. Kaufman teaches journalism ethics at Northern Kentucky University.