Obscenity Trials in USA

 Adult film maker John Stagliano (Buttman) issued the following statement decrying the recent attacks on personal liberties by moral crusaders:

This week, the group 'Pornography Harms' continued its campaign to ban free speech and adult entertainment through a letter circulated around Capitol Hill with the goal of spurring elected officials into enacting the group's dangerous agenda. The letter cites worn-out and debunked claims that view.

Recent statistics show those claims simply are not true. A study from a Clemson University economist showed that violent and sexual crimes have actually decreased as Internet usages have increased. The study's author found that states whose Internet access expanded the fastest saw rapes and sexual crimes decline the most.

We are tired of being slandered. It is apparent that if people are left free to consume pornography, if they so choose, the world is a healthier, less violent place.'

In 2008, the Department of Justice's Obscenity Prosecution Task Force brought charges against Stagliano in a trial which gained national attention over its free speech implications. In July of 2010, the trial ended in a Judicial Acquittal after the Judge ruled there wasn't sufficient evidence presented by the prosecution to convict. Groups such as Pornography Harms have lobbied government agencies and elected officials to continue to stifle first amendment / free speech rights through similar prosecutions.

The recent Pornography Harms letter urges readers to donate to Morality in Media, an organization with a long history of First Amendment suppression tactics and alignment with other censorship driven groups. They have frequently used similar outlandish claims and factual distortions as part of their extremist agenda, such as claiming there's a link between gay marriage and mass killings. If these anti-speech activists are initially successful with their censorship agenda, they won't stop until they have turned all broadcasts and publications in line with their narrow worldview.

The only real violence involved is prosecuting someone like me with an obscenity law, a law that you can't know in advance when you are breaking it.'

A federal judge in Washington, D.C., refused to dismiss a case against pornography producers who were charged with trafficking hard-core porn films across state lines and displaying illicit movie trailers online.

U.S. District Judge Richard Leon rejected their claim that federal obscenity laws are unconstitutional.

John Stagliano and Evil Angel Productions Inc. claimed that federal laws criminalizing the interstate trafficking of obscenity were unconstitutional. They argued that the law barring a Web site from displaying obscene materials was unconstitutionally vague and overbroad, because made online material subject to the community standards of the most conservative jurisdictions in the country.

But Judge Leon said the law was confined to a very narrow legal definition of obscenity. He said he is certain that online material will be judged as a whole and not individually according to obscenity laws, quashing filmmakers concerns that the trailer would be taken out of context.

Federal obscenity statutes require items to be judged in context of surrounding work. The government will have to show that the trailer is obscene in the context of the Web page, Leon said.

He also rejected their claim of a right to sexual privacy, saying such a right does not cover the distribution of obscene materials. He said the producers' case pales in comparison and does not even remotely approach the sexual privacy cases concerning homosexual rights and rights to obtain birth control. However you look at it, obscene material is not protected by the First Amendment, Leon concluded.

Update: Trial Set

26th March 2010. See article from xbiz.com

A federal judge has set a July 7 trial date for the obscenity case against John Stagliano and his two production companies, Evil Angel Productions Inc. and John Stagliano Inc.

U.S. District Judge Richard Leon, at a status conference in Washington at 3 p.m., set the trial date one month and one day after he rejected Stagliano's claim that federal obscenity laws are unconstitutional.

Leon said last month that obscene material is not protected by the 1st Amendment: Having considered the defendants' overbreath of arguments, I am not convinced that such strong medicine is warranted in this case. Nor am I convinced that the federal obscenity statutes are unconstitutionally vague as applied to Internet speech.

One of the issues we've talked about repeatedly over the years is the question of what is the internet jurisdiction .

If you think that just because it appears on the internet, anyone's laws apply, then you reach an untenable situation where all online content is controlled by the strictest, most draconian rules out there. That makes little sense.

And yet some courts still think this is the appropriate interpretation of the law.

In the US it's already troubling enough that the issue of indecency is measured on an amorphous community standards basis, but when it comes to the internet, what community applies?

A recent ruling in the 11th Circuit Court of appeals on a pornography case, the court seems to have made a ruling that effectively says all online content should be held to the standards of the strictest communities. Thus, an erotica website targeting a NY subculture should be held to the standards of a southern bible belt rural community? That seems ridiculous, but it's what the court said.

In this case, a guy who produced porn content in California was tried in Tampa, Florida, because investigators downloaded his content there:

The Atlanta-based court rejected arguments by Paul Little (Max Hardcore)'s attorneys that applying a local community standard to the Internet violates the First Amendment because doing so means material can be judged according to the standards of the strictest communities.

Other courts, including one in California, have found differently on similar questions, so it seems likely that, at some point, this issue will finally go back to the Supreme Court. Unfortunately, it seems likely that the Supreme Court will focus on what counts as community standards rather than whether or not laws against obscenity even make legal sense under the First Amendment.

Rob Zicari better known as Rob Black and his wife Janet Romano (stage name Lizzie Borden) were each sentenced to one year and one day in federal prison after pleading guilty to once count of conspiracy to distribute obscene materials last March.

As part of the guilty plea, Zicari and Romano admitted that through the parent company of XPW, Extreme Associates, Inc., they mailed three obscene movies to Pennsylvania, where this whole thing started.

The movies that essentially brought down the company were Forced Entry - Director's Cut, Cocktails 2 - Directors Cut , and Extreme Teen #24 .

They also got in hot water for distributing the material through Internet streams.

As part of of their plea agreement the couple was also sentenced to a two year probationary term upon their release from prison.

Offsite: In Defense of Extreme Pornography

29th October 2009. See article from reason.com

Attorneys for "Max Hardcore" (Paul Little) and Max World Entertainment yesterday filed a Motion for New Trial And/Or Judgment of Acquittal on behalf of both defendants in the U.S. District Court for the Middle District of Florida.

The motion, largely written by Max World attorney Jennifer Kinsley, cites six reasons for overturning the jury's verdict of guilty on all counts, including:

1. That the federal obscenity statutes are invalid under the Fifth and Fourteenth Amendment substantive due process rights, as well as being unworkable when applied to Internet speech under the current COPA holding that the "community" for the 'Net is the entire world
2. That the judge erred in allowing prosecutors to present only excerpts from the charged videos - the "Euro" versions of Max Extreme 20, Pure Max 19, Golden Guzzlers 7, Fists of Fury 4, and Planet Max 16 - thereby prohibiting the jury from considering the material "as a whole," as well as prohibiting the defense from playing some "extras" on four of the DVDs
3. That the Court should have recused herself from presiding over the trial after she made comments indicating that she had already formed an opinion as to the guilt of the defendants without having heard all the evidence
4. That the Court should have dismissed the counts involving mailing of the five DVDs to Tampa on the basis that the government presented insufficient evidence that defendants knew the mails would be used to send the videos, and also that the defendants did not in fact mail the videos at all
5. That the Court failed to properly handle several jury irregularities, including a note sent from one juror during the trial asking that only excerpts of the charged videos be played rather than the videos in their entirety, and the fact that on the evening of the first day of deliberations, one juror was informed that she had been fired from her job that day, and such firing was not brought to the attention of either the prosecution or the defense
6. That the government failed to show that the charged material met the federal standards for obscenity in relation to the material's target audience: the "dominant and submissive sexually deviant group."

The prosecution has 30 days to respond to the defense motion, and Judge Bucklew will rule shortly thereafter.

Producer Max Hardcore was found guilty today of 10 federal counts of distributing obscene materials over the Internet and through the mail. His company Max World Entertainment was also found guilty on 10 related charges.

It's a sad day for all Americans when they smash any kind of free speech and that's what happened in Tampa today, Max Hardcore told AVN. They trampled on free speech, and I intend to appeal.

The government had separately sought the forfeiture of Hardcore's home in Altadena, California, but the jury ruled against that sanction.

I'm full of good spirits and they didn't get my house, Hardcore said. We're talking to a couple of jurors and they felt very strongly for me, but the way the laws are formulated, they were boxed in to a corner. I should have got off for this nonsense; obscenity is an archaic term, it's not defined well. I received no warning and they attempted to put me behind bars; they've got a conviction, but we intend to fight on.

The jury returned its verdict after deliberating for a total of 14 hours in the past two days. After the jury returned its verdict, the judge dismissed the defense's motion to dismiss the case which had been held in reserve.

It was a travesty but we had no choice because of the way the law is written, one juror told AVN. Several jurors approached Max Hardcore and his attorneys to express their sympathy at having been forced to convict him on the counts due to the "poorly written" law regarding the transportation of obscene material via the internet and the mailing of the DVDs to the middle district of Florida. Another juror reportedly said that if two words in the law had been different, he would have held out for acquittal.

Max Hardcore will be sentenced September 5. He is free on bail until that date.