BOSTON—The premiere issue of the Harvard Law School's Journal of Sports & Entertainment Law contains an article by Univ. of Florida Prof. Clay Calvert and three of his students titled "Judicial Erosion of Protection for Defendants in Obscenity Prosecutions?: When Courts Say, Literally, Enough is Enough and When Internet Availability Does Not Mean Acceptance." The article focuses on evidentiary rulings in obscenity cases that, if upheld by higher courts, will likely cause major problems for any attorney seeking to defend a client against federal (or even state) obscenity charges.
The first adverse ruling involves the concept of "taken as a whole," a phrase included in two of the three prongs of the "Miller test" for obscenity adopted by the U.S. Supreme Court in 1973, but present in obscenity rulings as far back as U.S. v. Roth in 1957. Basically, it requires that for any work to be found obscene, the entire work must be considered; not merely the allegedly most offensive excerpts taken out of context.
The doctrine was perhaps best explicated by U.S. District Judge Gary Lancaster in a 2009 decision regarding the sentencing of Extreme Associates and its principals, Rob Black and Lizzy Borden: "we must view the context and manner in which the material has been created, packaged, and presented by the author to the intended audience in order to decide what the work 'as a whole' is for purposes of the Miller test." [Emphasis added by Calvert]
The concept was reaffirmed in Judge Anthony Kennedy's majority opinion in Ashcroft v. Free Speech Coalition, the ruling which struck down the Child Pornography Prevention Act: "Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive."
Trouble is, several federal judges have ruled that "taken as a whole" can mean almost the exact opposite of Lancaster's and Kennedy's holding. In United States v. Loren Jay Adams, according to the article, "the United States Court of Appeals for the Fourth Circuit gutted the taken-as-a-whole requirement and held that it was sufficient for prosecutors to merely show 'representative portions' of the adult videos at issue in the case. Rather than requiring the videos to be shown to jurors in their entirety, the Fourth Circuit ruled it was sufficient that a federal agent 'testified that he had viewed each movie in its entirety, summarized the remainder of the films for the jury, and stated that the unplayed portion of each showed sexual acts similar to those contained in the excerpts.' The court also found it significant that the federal agent read aloud the defendant's 'website’s descriptions of the films to the jury, and testified that the descriptions accurately detailed the content of each movie.' Taken together, this was, according to the appellate court, all that was required 'despite the jury’s failure to view the films in their entirety.' The three-judge panel found 'that the Government presented evidence sufficient to support the jury's conclusions that, taken as a whole, the films appealed to prurient sexual interests and lacked serious literary, artistic, political, or scientific value.'"
The article then goes on to explain several flaws in the Fourth Circuit's reasoning beyond its failure to require the jury to view the entire contents of the videos at issue, including the question of how much of the video should be shown to be considered a "representative portion," and why an FBI agent should be considered expert enough to choose such a portion.
But the "taken as a whole" ruling most familiar to AVN readers is United States v. Paul F. Little, where Judge Susan C. Bucklew allowed prosecutors Lisamarie Freitas and Edward McAndrew to play only portions of the charged Max Hardcore videos because "playing the entire movies would be repetitive, since similar sex acts appear throughout the material"—though in fact their reasoning was, as McAndrew remarked during argument on the issue, "It all turns on who the jury is going to blame. We don’t want them to blame us for seeing the whole movie. We want them to blame the defense." Judge Bucklew's agreement with this tactic forced the defense to play the unplayed portions of the movies during its case, and it remains unclear if that influenced the jury toward its eventual guilty verdicts.
As one of Little's defense attorneys, Jeffrey Douglas, told Calvert, "The problem for us, in terms of preserving an appeal, is that we were asked to play chicken. If we hadn’t shown the material on cross-examination, would we have waived the issue that the government failed to show it as a whole? In other words, if we didn’t show it when we could show it, would we then be barred from arguing about it? The government’s gamesmanship was rewarded."
"In summary," the article's authors write, "if one accepts the statements of both Douglas and [co-counsel H. Louis] Sirkin, then the prosecution in United States v. Little deliberately manipulated Miller’s taken-as-a-whole requirement in order to play a blame-game to curry favor with the jury." The Eleventh Circuit Court of Appeals affirmed the prosecution's tactic, reasoning that, "[t]here was sufficient evidence presented during the government's case-in-chief to meet the government's burden of proving obscenity in the DVDs."
The article then proceeds to analyze the pros and cons of showing (or being forced to show) the movies in their entirety, concluding, "It is impossible to know, of course, whether forcing the prosecution in United States v. Little to show each of the DVDs at issue, from start to finish, would have made any difference in the minds of the jurors. However, Little’s attorney, Jeffrey Douglas, contended that showing only clips from the movies harmed the defendant's case and aided the prosecution. Douglas asserted 'that showing only portions of the films was a ploy by the prosecution to make the movies appear more jarring than they actually are... If jurors watched the movies as they were intended to be seen, it would desensitize them and take some of the force out of the government's case.'"
The article also gives little credence to the idea that the court might not want the entire movies played out of deference to the possible sensitivities of some jurors to the content. However, the authors note, "Potential jurors who take such umbrage to the content that they cannot watch an entire movie should simply be removed in defense challenges during voir dire."
The article next discusses the concept of "contemporary community standards" and what role the introduction of "comparable" material plays in establishing those standards.
"A review of the paucity of legal literature on this particular facet of obscenity law," the article argues, "reveals that the gist of the comparables argument is that 'in determining whether materials are obscene, the trier of fact may rely upon the widespread availability of comparable materials to indicate that the materials are accepted by the community and hence not obscene under the Miller test.'... [A] successful comparables argument requires three foundational elements be present with the proffered evidence: similarity or 'reasonable resemblance' of content; availability of content; and acceptance, to reasonable degree, of the similar, available content."
But how does one find and argue for comparables in an obscenity trial based on Web content, and who would be considered expert enough to argue what is "comparable" on the Web and what isn't—or even how much of the Web can be searched to find such "comparables"? All of these are thorny issues, and the article does its best to analyze court decisions on the issue thus far.
The article references First Amendment attorney Lawrence Walters' plan to introduce local residents' Google searches for sexual terms, using the Google Trends software as well as information obtained from Google via a subpoena, in his intended defense of webmaster Clinton Raymond McCowen, but Walters never got the chance: An out-of-court settlement was reached. A similar plan was intended for the trial of Loren Jay Adams, but the trial judge excluded such testimony. However, just that sort of testimony was used in the Little case, although Judge Bucklew refused to instruct the jury that it had a right to consider the Google Trends-obtained comparable evidence. The article goes on to discuss the viability of such evidence in light of the "acceptance" requirement of the "comparables test," and distinguishes between "brick and mortar" comparables and Web-based material.
All in all, the Calvert article is a terrific read for anyone interested in the inner workings of modern obscenity jurisprudence—and it's a hell of a coup for Calvert and his co-authors to have their article appear in the premiere issue of a law journal, especially one as prestigious as issuing from the Harvard Law School.