WASHINGTON, D.C.—The U.S. Department of Justice, contrary to the hopes of many adult industry members who voted Democratic in the 2008 election, is apparently still hell-bent on prosecuting adult producers for selling adult movies to consenting adults—but thanks to the excellent legal work of First Amendment attorneys Allan Gelbard and H. Louis Sirkin, the feds may have hit a small roadblock in their continuing quest for power over porn.
At issue is a case titled "In re Grand Jury Investigation of Possible Violation of 18 U.S.C. §1461 et seq," which all followers of adult legal issues will recognize as legalese for an investigation of "Mailing obscene or crime-inciting matter."
As part of the investigation, the feds served several subpoenas on what is identified in the case as "Company X," owing to the fact that all grand jury proceedings are secret, and revealing any information of what went on in any grand jury hearing is punishable by fines and imprisonment. However, the legal opinion, authored by U.S. District Judge Royce C. Lamberth, has been published, and is therefore in the public domain.
According to the opinion, federal prosecutors attempted to serve four grand jury subpoenas on Company X. The first sought "the name, address, and telephone number of the businesses that processed financial transactions for Company X between December 1, 2007 and June 30, 2008"; the second, "the names, positions, hours, location of employment, home address and telephone numbers for all persons employed by Company X" for those same dates; the third, "a copy of records identifying the true name(s) and alias(es) of the owner(s) of Company X from its date of incorporation up to and including June 2008"; and the fourth, "a copy of records that show the identity of all movies sold or distributed, including the date of each transaction, payment received, and method and date of each of each shipment, from customer purchases from the website/domain name www.[_____].com between December 1, 2007 and December 15, 2007, and April 1, 2008 and April 15, 2008."[Website name redacted in original]
They also wanted Company X's custodian of records to attest that the documents produced in response to the subpoenas were official company records.
The company had no problem producing documents responsive to the first and second subpoenas, but balked at filling out a custodian of records form to accompany the response since the custodian, who also happens to be the company president, rightly argued that signing such forms would be a waiver of the president's Fifth Amendment right not to become a witness against him/herself. The judge ruled that the mere production of the documents by a company representative was sufficient to prove that they were, in fact, company documents.
"[I]t is not clear what purpose (at least at this stage) would be served by compelling Mr. X to qualify responsive documents as business records," Judge Lamberth wrote. "There is no prohibition against presenting hearsay to the grand jury; in fact, it is explicitly permitted."
Much more contentious, however, were subpoenas three and four. The company argued that, as to subpoena three, the government already had the requested information, which it had obtained from a prior investigation of the company, and therefore, it saw no need to provide the information a second time. However, Judge Lamberth saw no harm in requiring a duplicate production, and upheld the government's subpoena for that material.
That left subpoena four.
"The government took the position that they could subpoena records from throughout the country and that they could subpoena customers' records," Gelbard told AVN in an exclusive interview. "The fact that the government took the position that it was allowed to subpoena records of the customers—'Who did you sell these books or videos to and where did you sell them?'—this is the first time I've ever seen them try this, at least in the modern era."
Company X did supply, in response to the subpoena, copies of invoices that reflected sales of the company's products to addresses in the District of Columbia ... but it blacked out the names and street addresses of the customers in order to protect the customers' confidentiality.
But for the Department of Justice, that wasn't good enough: They wanted complete invoices, though in later pleadings, they limited their discovery of customers outside the D.C. area to "the city and state where shipments were made and not the names of customers."
Judge Lamberth rejected even that limitation.
"Until the United States proves otherwise, the expressive materials being investigated are presumptively protected by the First Amendment and Company X's customers have a correlative right to receive that information anonymously," the judge wrote. "Until the United States proves that the materials are obscene, it will need to demonstrate both a compelling interest in the sought-after materials and a sufficient nexus between the information sought and the grand jury's investigation in order to obtain the redacted information."
"Though obscene materials are not protected by the First Amendment, sexual expression that is not obscene is protected," he continued. "Furthermore, expressive materials are entitled to presumptive First Amendment protection. The Government's briefing assumes that the films being investigated by the grand jury are obscene, and therefore that they are not entitled to First Amendment protection. However, as of yet there has been no judicial determination that the films being investigated are in fact obscene. As such they are entitled to the protection of the First Amendment." [Citations removed here and below]
Judge Lamberth went on to discuss the "corollary First Amendment right ... to receive ideas," even anonymously, and opined that "[I]f the subpoenaed customer records are given to the Government, it could have a chilling effect on the exercise of Company X's customers' First Amendment rights. As Justice Douglas once wrote '[a] requirement that a publisher disclose the identity of those who buy his books, pamphlets, or papers is indeed the beginning of surveillance of the press. ... Once the government can demand of a publisher the names of the purchasers, the free press as we know it disappears ... the purchase of a book or pamphlet today may result in a subpoena tomorrow.'"
And what might that subpoena be for? Gelbard had some ideas.
"Keep in mind these prosecutors that are doing all this stuff are the leftovers from Bush's Justice Department," Gelbard warned, "and they've been trying to bring obscenity indictments in places all over the country, and they've gotten a lot of blowback; two U.S. attorneys [Nevada's Daniel Bogden and Arizona's Paul Charlton] were fired under Bush because they wouldn't do it. I think a lot of the U.S. attorneys, even loyal Bushies who are still in office, are looking at the federal government and saying, 'Look, I only have so much time and so much money and so much resources, and I'm not going to spend it doing these mail drops and figuring out who's got what. I'm not going to spend my department's resources on people watching what they want in the privacy of their own home.' So rather than trying to indict a video seller in a state that they might get a bad jury on, and where the U.S. attorney in the district doesn't want to do the research, they think, because they're in the District of Columbia, they can simply drop a subpoena and have us do the research for them."
"So if this particular subpoena had been upheld," he continued, "and the client had to turn over all its sales records of these particular movies throughout the entire country, it [the Justice Department] would know, 'Well, we've got this particular movie, and let's say it's got a black guy pounding a white girl, and we know that that's going to be particularly problematic for a defendant in the Deep South, so let's see how many they sold? Oh, yeah; well, there's six of them sold to Alabama; let's go there.' That's what they were doing here, I think. I can't see any other reason, because as the judge says, what's sold outside of the District has no bearing on an obscenity prosecution in the District, and we would assume that the U.S. attorneys who are bringing the cases before the grand jury know that and aren't just out there flailing."
Gelbard isn't the only legal scholar who's made this conclusory leap; prominent legal blogger Eugene Volokh, in analyzing the Eleventh Circuit's opinion in the Paul Little appeal, comes to essentially the same analysis.
"United States v. Little concludes that Internet obscenity distribution prosecutions may rely on the community standard of the place in which the material was distributed," Volokh wrote in a blog post today, "which means the government can try to download the material in the most restrictive community, and prosecute the distributor there."
Equally troubling is the possibility that federal prosecutors could use such lists to target an entirely new class of potential defendant: The adult video/website customer.
"The case law is clear: They're not charging them with possession of the material in their home, but if they got it off the internet or even if it was sent by mail, they will charge them with receiving," Sirkin opined. "There are cases in the Eleventh Circuit and the Sixth Circuit where people have been charged with receiving obscene material, and this could very well be a prelude to going after customers, because they can really gather their evidence. If they seize somebody's computer and if they know or get the idea that sales were made of a particular movie to a particular person and they confirm it was sent by mail or even over the internet to a home computer, they could potentially execute a search warrant. It could be really a very, very chilling thing. But we may be seeing stuff like that."
"Possessing obscene material is not a crime," Gelbard noted, "but moving it from point A to point B or acquiring it still is."
However, Gelbard still has faith that the government won't step off the precipice of widespread customer prosecutions.
"As soon as that happens, there will be a hue and cry throughout this country as people's heads explode," he predicted. "But this should be a wake-up call for people who watch adult material around the country, who think this is a private thing they do in the privacy of their own home. Had the government been able to compel the production of the customer lists here, that whole theory goes right out the window, and what's next?"
"Speaking philosophically," he continued, "if it became known what the community standards really were, which is that people watch whatever they fucking want in the privacy of their own homes and think that's okay, that would be a great thing—but that's not what's going to happen here. People will be prosecuted and people will be ostracized, because if your next-door neighbor gets accused of watching Movie X, and you're watching it too, what are the odds that you're going to stand up and take the same amount of heat? Most people, unfortunately, are going to say, 'Yeah, bad neighbor! How dare you watch that kind of filth!' Or just remain quiet. And remember: It's one thing to be indicted; it's another thing to have your neighbors start finding out what you're watching, or the principal at your kid's school."
"It's really important that the government was trying to get customer names, and that a target who must remain nameless said, 'I ain't gonna do it'," Gelbard summarized. "Whoever Company X is, they deserve a good pat on the back."