The U.S. Attorney believes it's a decision that should be left to the community -- more specifically a jury -- as to whether violent and graphic pornography depicting rape and murder is acceptable.

The opposition does not, claiming that an individual's guaranteed right to liberty under the Fifth Amendment of the Constitution allows them to not only view such pornography but also gives them the right to purchase it.

The two sides squared off in federal court yesterday, arguing to a three-judge panel of the 3rd U.S. Circuit Court of Appeals. A decision is not expected for several months.

The appeal was brought by Mary Beth Buchanan, U.S. Attorney for the Western District of Pennsylvania. Her office indicted California-based Extreme Associates Inc., as well as its owners, Robert Zicari and his wife, Janet Romano, for violating federal obscenity laws by distributing videos through the mail and online which depict women being defecated on and having their throats slit.

Under federal law, an individual has the right to view obscenity in private at home, but it is illegal to distribute it across state lines.

U.S. District Judge Gary L. Lancaster in January dismissed the indictment, saying that federal obscenity laws violate the Constitution.

Citing the Supreme Court case of Lawrence v. Texas, in which the court ruled that laws prohibiting same-sex sodomy are unconstitutional, Judge Lancaster wrote: "the government can no longer rely on the advancement of a moral code, preventing consenting adults from entertaining lewd or lascivious thoughts, as a legitimate, let alone compelling, state interest."

But Ms. Buchanan told the three-judge panel that reading of Lawrence is simply wrong.

The government's interest in prosecuting Extreme Associates is in "protecting adults, children, morality, the order of society and the proliferation of obscenity," Ms. Buchanan argued.

Both sides stipulated for the oral argument that what Extreme Associates produces is obscene under the law.

During her 25-minutes before the bench, Ms. Buchanan said the right to view obscenity is restricted. "The right is one that exists in the home," she said. "It doesn't go anywhere else."

But H. Louis Sirkin, a Cincinnati attorney representing Extreme Associates, disagreed. He told the court that if people have the right under the law to possess obscenity in their homes, then they must be able to buy it.

"In order for me to exercise my right to liberty, I have to be able to get it," Mr. Sirkin said .

He also agreed with Judge Lancaster's opinion that morality is not a legitimate state interest, based on the Lawrence decision.

Because it's considered a national test case, several organizations filed friend of the court briefs on the matter. Eight were filed in support of the U.S. Attorney's position, and seven were filed on behalf of Extreme Associates.

Patrick Trueman, senior legal counsel for the Family Research Council in Washington, D.C., called the lower court's ruling that dismissed the indictment "ridiculous," and "silly."

"The lower court judge seems to be an activist judge," said Mr. Trueman, the former head of the Justice Department's Child Exploitation and Obscenity section from 1987 through 1992. "It's not this judge's freedom to decide cases differently than the Supreme Court."

He said there have already been Supreme Court cases that have found the laws that prohibit interstate distribution of obscene materials to be constitutional, including the 1973 case, Miller v. California. He does not believe the Lawrence case strikes down any obscenity laws.

Reed Lee, filed friend of the court briefs in support of Extreme Associates on behalf of the First Amendment Lawyers Association; Free Speech Coalition and Association of Club Executives -- three organizations he said that work to protect sexually oriented expression.

Mr. Lee argued the indictment against Extreme Associates is improper based on the First Amendment right to freedom of expression.

Though obscene materials are not protected by the First Amendment, Mr. Lee believes they should be. All obscenity, he argues, is an expression, whether it's through movies, photographs or literature, and therefore should be protected.

"We can't forget, this is a case about movies," Mr. Lee said.