obscenity prosecutions and the federal government

[basschick]

it's long, but it has some facts well worth knowing.

"WASHINGTON - Who would have guessed that a 1942 case involving the federal government's power to control the growing of wheat for personal consumption might lead to the federal government's usurping from the states all power over obscenity prosecution?

Here's the slippery slope:

"Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce," wrote Justice John Paul Stevens in the U.S. Supreme Court's recent decision in the medical marijuana case, Gonzales v. Raich. "As we stated in Wickard [v. Filburn], "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."

"In Wickard," Justice Stevens continued, "we upheld the application of regulations promulgated under the Agricultural Adjustment Act of 1938 ... which were designed to control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices. The regulations established an allotment of 11.1 acres for Filburn's 1941 wheat crop, but he sowed 23 acres, intending to use the excess by consuming it on his own farm. Filburn argued that even though we had sustained Congress' power to regulate the production of goods for commerce, that power did not authorize 'federal regulation [of] production not intended in any part for commerce but wholly for consumption on the farm.' Justice Jackson's opinion for a unanimous Court rejected this submission." [Citations omitted here and below]

But the adult industry doesn't grow wheat, so what the fuck, right? However, one or two adult industry members do smoke marijuana, and may someday necessarily do so because they have cancer or some other disorder for which marijuana use would relieve pain or increase appetite – which is exactly the situation of Angel Raich and Diane Monson, who sued the federal government after Drug Enforcement Administration agents raided Monson's home in 2002 to confiscate her homegrown pot plants, even though California had passed a law allowing the cultivation and prescription of pot for medicinal purposes.

Raich/Monson's argument that since their marijuana was grown purely for their own consumption, and for sale to other similar patients strictly within the state of California, and since the California legislature had legalized that activity, the feds had no power to interfere, since their activity didn't cross any state lines. The Constitution's "commerce clause," after all, relates only to interstate commerce.

Right!

"The similarities between this case and Wickard are striking," wrote Justice Stevens. "Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. Just as the Agricultural Adjustment Act was designed 'to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses . . .' and consequently control the market price, a primary purpose of the CSA [Controlled Substances Act] is to control the supply and demand of controlled substances in both lawful and unlawful drug markets... In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity."

And in case there was any question about Congress' power over a putatively illegal market, a footnote to the above quote notes, "To be sure, the wheat market is a lawful market that Congress sought to protect and stabilize, whereas the marijuana market is an unlawful market that Congress sought to eradicate. This difference, however, is of no constitutional import. It has long been settled that Congress' power to regulate commerce includes the power to prohibit commerce in a particular commodity."

But what the hell; the adult industry doesn't sell grass, so why pay attention to a few hundred or thousand people who, because of this decision, will die of starvation, since pot is the only thing that controls their nausea enough to allow them to eat? Read on.

"The U.S. Supreme Court told a lower court to reconsider a decision that trimmed the power of federal prosecutors to press cases against child pornographers," begins an article posted Monday on bloomberg.com.

"The one-paragraph order, issued in Washington, revived a Justice Department case against Florida resident Alvin Smith for producing lewd photographs of young girls. The Atlanta-based 11th U.S. Circuit Court of Appeals had overturned Smith's conviction, saying his conduct was a local matter, beyond the reach of federal prosecutors."

Smith was convicted in U.S. District Court in Florida of one count each of producing and possessing child porn, violating §§ 2251(a) and 2252A(a)(5)(B) of the U.S. criminal code, Title 18. The 11th Circuit reversed that decision, relying on its 2004 decision in U.S. v. Maxwell, where the court held that "purely intrastate possession of child pornography was not converted 'into an activity subject to Commerce Clause regulation' simply because 'the disks on which the pornography was ultimately copied traveled, when blank, to Florida from someplace outside of Florida.'"

Can you guess on what basis the Supreme Court remanded the Smith case to the 11th Circuit?

"The questions whether 18 U.S.C. 2251(a) and 2252A(a)(5)(B) are constitutional as applied to the intrastate production and possession of child pornography are important ones that may ultimately warrant plenary review by this Court," argued the U.S. Department of Justice in its brief to the Supreme Court, which accompanied its petition to have the high court overturn its 11th Circuit loss. "On November 29, 2004, however, the Court heard argument in Ashcroft v. Raich, which involves an analogous as-applied constitutional challenge to the Controlled Substances Act. This Court's decision in Raich may significantly influence the analysis of the issues in this case."

Sure enough, the Supreme Court issued an order in the case Monday, reading in part, "The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Gonzales v. Raich."

Why? According to the Bloomberg News story, "At the 11th Circuit, the Justice Department argued that the [child porn] photos had a connection to interstate commerce because they were developed at a drug store using paper and processing equipment that had been shipped across state lines." [Emphasis added]

Anybody feeling a cold chill right about now? Doesn't just about every tape and disk that's prosecuted in every state obscenity case arrive at a video store after having been shipped across state lines? Doesn't the U.S. Supreme Court suggest, by referencing Gonzales v. Raich in its remand order, that such interstate shipment of product may automatically place the contents of the adult production at issue within the jurisdiction of the federal courts?"

http://www.avn.com/index.php?Primary...tent_ID=231211

[Lee]

Interesting stuff for sure although im not sure if all cases will go through th federal systems.

Regards,

Lee