WASHINGTON, D.C. - There's got to be something daunting about arguing a motion to dismiss an obscenity case in the nation's capital, in a courtroom that's less than a mile from the U.S. Supreme Court.
But such was the scene Tuesday morning at the E. Barrett Prettyman Federal Courthouse when four attorneys representing the adult industry - Paul Cambria, H. Louis Sirkin, Jennifer Kinsley and Allan Gelbard - walked into Judge Richard J. Leon's courtroom along with Justice Department trial attorney Pamela Satterfield to argue for the dismissal of all charges against John Stagliano, John Stagliano Inc. and Evil Angel Productions Inc.
"It was very encouraging," said Sirkin, who represents John Stagliano Inc.. "The judge asked really interesting questions. I think that what he thought he was going to be hearing from us was certainly much more intellectual than he ever expected, because he told us that we only had an hour on our side, the government had 45 minutes, and that we had to reserve time for rebuttal. When we said, fine, we'd like to have 10 minutes for rebuttal, he changed his mind and said, no, we're not going to have any rebuttal; each side will present their arguments and that will be it."
"But lo and behold, he asked really great questions; he seemed to be very interested in our arguments and he ended up giving us rebuttal, and said that he was going to take it under advisement. He complimented everybody on the briefs and the argument."
Since Gelbard represents the sole individual defendant, he was tasked to argue first. The judge had cautioned the attorneys not to duplicate each other's arguments, but since there were several issues common to all defendants, some overlap was unavoidable, and the judge didn't seem to mind.
Much of the discussion at the hearing revolved around Counts 3, 6 and 7, all having to do with the availability of the trailer for Belladonna's Fetish Fanatic 5 on Evil Angel's website.
"The Internet case was pretty compelling," Gelbard said. "We all talked about the community standards issue, which is a big issue, as is the 'taken as a whole' issue, and the government's position is, 'Well, you can just do softcore if you're going to put it on the Internet,' to which I replied, 'No, that doesn't work.'"
"He's the first judge to basically tackle this, as Justice Kennedy called it, 'vexing question'," Cambria added, "namely, what does 'taken as a whole' mean when you're dealing with the Internet? And secondly, what is the 'community' when you're talking about the Internet? Of course, we pointed out to him various opinions by the Supreme Court justices and the Third Circuit as they went up and down on COPA and the Communications Decency Act."
Justice Kennedy had expressed his problem with the Miller v. California requirement for obscenity guilt that a work be "taken as a whole" as early as the Supreme Court's first COPA opinion, where he concurred with the majority but noted, "Likewise, it is essential to answer the vexing question of what it means to evaluate Internet material 'as a whole' when everything on the Web is connected to everything else. As a general matter, '[t]he artistic merit of a work does not depend on the presence of a single explicit scene ... [T]he First Amendment requires that redeeming value be judged by considering the work as a whole.'"
The subject of "taken as a whole" figured prominently in both the Five Star Video trial in Phoenix and the Max Hardcore prosecution in Tampa, and Sirkin has been refining his view of the issue with each successive legal battle.
"I've been expanding on something Al had written, which is that a website is put together like you would put together an art exhibit," Sirkin explained. "People spend a lot of time planning and putting together a website, just as a curator spends a lot of time to put together an art exhibit, how to flow people through the gallery, and you don't take pieces out of it; 'the whole' is in reality the entire website. I also further refined something Paul had said about how, in Hollywood, you don't judge the Oscar for the best movie based on a four-minute clip, and it's the same for a preview on a website. You don't award the Oscar based on the preview that you see in the theater; you have to put it together with the whole. That's how it has to be looked at."
The "community" for the Internet is an equally thorny problem, and it's another issue that inspired hard-fought battles in the Phoenix and Tampa courtrooms - but Cambria's and associate Roger Wilcox's research revealed a little-recognized fact.
"I pointed out to Judge Leon that, as Justice O'Connor said in one of her concurrences, Miller and Jenkins [v. Georgia] and Hamling [v. United States, all landmark obscenity cases] never said that you had to apply a local community standard; they simply approved it when it was done," Cambria said. "Remember, in Hamling, the 'local community' was the entire state of California, and at one point, the judge said to me, 'Well, how are the jurors able to do that?' And I said, 'Well, how were they able to do it in Hamling, where a jury was sitting in Los Angeles but they had to take into account Bakersfield and San Diego and San Francisco and basically 70 million people who lived there?' And I said, 'In Jenkins, it was pointed out that they never said to the jury that it's the state or it's the local; they just said it's the community,' and I said, 'There's nothing in Supreme Court precedent which prevents you from saying that it's at minimum the nation.' And that's what O'Connor called for, and that's what the other justices say is a problem, because unlike Hamling and the rest of them, you cannot control where your material goes. If I'm sending out a DVD in the mail, I can control where it goes. If I'm running a 900 service, I know where the calls are coming from, so I can do that. If I run a mail order service, I can do it. But I can't do it on the Internet. So I said, 'The choice is publish or don't publish. It's not like in Hamling and Miller where you could say 'publish,' or 'publish just here and here and here but not there and there and there' - and he interrupts me at that point and he goes, 'Well, it's publish or perish, isn't it?' And I said, 'Yes, it is, because the Internet is now the most important delivery system, and economically, you couldn't survive without the Internet, so yes, it's publish or perish; that's the commercial aspect of it.'"
When it came her turn to argue, Satterfield dismissed the defendants' concerns by suggesting that they could have solved all their problems by simply posting only softcore images and video on the Web, but Cambria had a ready answer:
"I said, 'Judge, there is no litmus test for obscenity. There is no catechism that lists "this is" and "this isn't." It is community by community. It can be anything; it can be nothing, so it's bogus to say just publish this or publish that.' And her other statement was, 'Well, just don't send obscenity.' I said, 'Judge, in order to decide what's obscene, you still have to decide how big is the community, because that's how you measure obscenity, and what's "taken as a whole," because you have to do that to measure obscenity.' So I said, 'That's a bogus argument. It's a difference but it's an insignificant one, because you still need to resolve these two issues before you can apply the test, before you can determine whether something's obscene. That answer is no answer.' And he goes, 'Okay, I understand, I understand.'"
Sirkin remembered even more of that exchange.
"The judge asked Paul - and it was an interesting question - 'Well, why can't they just write descriptions about their movies on the website instead of trailers?' And he said, 'No, Judge, they can be prosecuted. This woman in Pittsburgh [Karen Fletcher] just got prosecuted for posting short stories.' And I think he was taken aback by that."
Indeed, all of the attorneys urged Judge Leon to rule preliminarily that "the whole" was at least Evil Angel's entire website, and that the "community" whose "standards" were to be considered was at least the mass of U.S. Internet users - and that if the Justice Department had a problem with that, it could appeal those rulings to the District of Columbia Circuit ... which might then lead to a pretrial Supreme Court decision on those subjects as well.
Another major factor at Tuesday's hearing was the effect of substantive due process on obscenity prosecutions, and for the most part, that was Sirkin's bailiwick.
"The government said that when they went online to capture the streaming [video], they did it at, I believe, a cyber-café or coffee shop," Sirkin recalled, "and what they were apparently trying to do there is say, 'Well, see, this is the private place that you've been talking about in your Lawrence argument, that it's private for home use,' and the judge then asked me about, 'Well, suppose on an airplane a guy takes out his PC and he's sitting there and the people sitting next to him don't want to watch this stuff and he wants to watch it?' So I said, 'Well, judge, in a situation like that, you don't go after the guy who produced the movie. The guy who's in that seat, who's so disrespectful to the others, he's the one who should be charged with exhibiting the material as obscene.'"
"I said, 'What's really interesting about this, and this is the first time I've really argued this, is, you know, this isn't like heroin or it isn't like a controlled substance; I can never legally possess that. I can't possess it in my home; I can't possess it anywhere. But here, there is a concept that I can possess this stuff at home, and so it's not contraband per se; the Supreme Court decided that in Stanley v. Georgia. This is 2008, and with personal computers, we're not dealing with brick-and-mortar bookstores and adult theaters out in neighborhoods and all that kind of stuff. We're talking about something that is designed for me to look at and to put into my brain in this zone of privacy that's around me.' And I said, 'It's really interesting, isn't it, that they call it a PC. What does that mean? It's a personal computer, and you know, it's personal.'"
Sirkin's argument, which follows directly from Lawrence v. Texas, is that one's personal autonomy about sexual practices is something that's not confined to one's home, but follows an individual wherever he or she goes.
"There's something about liberty in this country, whatever you want to call it," Sirkin said, "that in a sense protects us from government intrusion into our personal lives; what we think about, what we fantasize about, what we want to read or watch."
"I really like the expansion away from the idea with Stanley v. Georgia that if I'm watching it by myself in my own house, or even with another person, it's not contraband per se," he continued. "What was really nice about Reliable Consultants [v. Texas, the "obscene device" case] was, and the reason I went into talking about Lawrence stuff was, I emphasized, 'Judge, we don't want to knock out the obscenity law; that's not part of our argument. We're just saying that protecting people who don't want to see sexual material comes under a different legal protection. And what they said in Reliable was, under the Texas law, they said you can have the device, but that has no meaning unless you can buy it. Somehow, I have to be able to get it, or simply having the right to own it is meaningless. If I can't buy it, it's absolutely meaningless. And so the seller has the right to assert this right for its purchasers; it's the right to be free from the government intruding on our individual zone of privacy, and you can call it what you want, but that's what we're protected from, whether you're porking a guy or you're using a device or whether you're watching a dirty movie, and I think that's the point.'"
"And I think when we pose it exactly that way," he continued, "it really hits home, because Miller and all those cases that the government's been relying on are all from 1973 and '74; they're outdated in today's world with the Internet; it's just a whole new ballgame, and I think they can really understand that. So you know, on that question about watching adult stuff on an airplane, the answer is, go after that schmuck that's sitting in the seat; he's the one that's looking at the movie."
Gelbard argued that adult producers would be putting themselves in peril if the judge allows this obscenity case to continue in the District of Columbia, because D.C. is where producers must send their finished works in order to register their copyright. If all the Justice Department or the FBI has to do to bust a particular movie is to check it out of the copyright office at the Library of Congress, the chilling effect on producers' copyright rights will be incalculable.
"The judge was interested in how, since this is a criminal case and copyright is civil - how could these possibly affect one another?" Gelbard said. "And I said, 'Look, I'm an actual property [law] practitioner. Most of my clients don't come to me for criminal defense. I'm an entertainment lawyer; they come to me and we talk about copyrights and trademarks and things that normal companies do, and I can't reveal attorney-client communications, but many of them are concerned, and people are generally concerned, about copyrighting their material. It makes them nervous that they have to send stuff here, and if the government suddenly starts prosecuting obscenity in the District of Columbia because people have to send it here to get copyright protection, it creates the Hobson's choice that I talk about in my brief.' And he gets the idea; I'm not sure he understands the chilling effect issue, but he definitely said he's going to take some time to give us an opinion."
It's unclear when Judge Leon will be able to deliver an opinion in this case, since he is currently involved in a much more high-profile matter concerning the rights of inmates at the Guantanamo Naval Base prison. In fact, Judge Leon had originally planned also to hear argument on an additional defense motion, to be argued by Jennifer Kinsley, regarding materials which the defense had requested from the FBI involving written guidelines as to the type of material that either the FBI or the Justice Department had targeted for prosecution. However, the judge, apparently well aware of his own time constraints, elected to put that argument off for another time.
"He wants to get us something as quickly as he can,but he said, 'We're backed up with the Guantanamo stuff, but I'll try and get you something in the new year; hopefully not too late in the new year.'" Gelbard explained. "So I anticipate it will take several months, maybe three or four months for him to come to an opinion."
One thing is certain, though: All of the defense attorneys came away from the hearing believing that they will get a fair ruling from the judge.
"I think the lawyers all really blended well," Sirkin said. "We all took slightly different directions with it, and as I say, Paul really made some really great points about the community and how we define that in today's world with the Internet. I was very, very encouraged. I'm not saying that we're going to win or anything like that, but I was really pleased at the attention that the Court gave us. It's exciting to leave with that kind of feeling."