This article originally appeared in the June 2008 issue of AVN Online. To subscribe, visit AVNMediaNetwork.com/subscriptions.
At least as early as June 2001, it was clear that the adult industry's good times were coming to an end, when it came to freedom from federal obscenity prosecutions. Then Attorney General John Ashcroft, responding to a question from Rep. Bob Goodlatte (R-Va.) on June 6, 2001, said, "I am concerned about obscenity, and I'm concerned about obscenity as it relates to our children."
Ashcroft will long be remembered by the adult industry for the indictment of Extreme Associates and its principals, Rob Black and Lizzy Borden, for interstate transportation of obscene materials, announced on Aug. 7, 2003.
At present, there are six ongoing federal obscenity prosecutions and one very significant state prosecution: the Ray Guhn case. Our purpose here is to provide brief updates on each of these cases, three of which will go to trial around the time this issue is printed.
Background: On April 8, 2003, a federal grand jury in the Western District of Pennsylvania, under the direction of U.S. Attorney Mary Beth Buchanan, delivered a 10-count indictment against Extreme, Black and Borden for conspiracy, interstate transportation of obscene materials, and selling and distributing obscene materials through an interactive computer service. The indictment also contained a forfeiture count.
The case was assigned to U.S. District Court Judge Gary Lancaster. The defendants are represented by attorneys H. Louis Sirkin and Jennifer Kinsley.
In November 2004, Sirkin argued to Lancaster that all charges should be dismissed, and on Jan. 21, 2005, Lancaster granted Sirkin's motion. The government appealed that ruling, and on Dec. 8, 2005, the 3rd Circuit Court of Appeals reversed Lancaster's ruling and reinstated the charges. A petition for writ of certiorari to the U.S. Supreme Court was denied, and Lancaster denied further motions to dismiss, based on the 3rd Circuit Court ruling.
At present, there are no outstanding motions, and no trial date has been set.
Issues: Sirkin's appeal has set the template for several of the later obscenity defenses. After granting, for the purpose of argument, that what Extreme was charged with selling was obscene, Sirkin argued that the Supreme Court's decision in Lawrence v. Texas recognized a substantive due process right of privacy under the Fifth and 14th Amendments to the Constitution. That meant that as long as the Extreme material was not displayed to children or to adults who did not wish to view it, it should be legal to sell it by mail or Internet, since the Supreme Court, in Stanley v. Georgia, has already recognized a right to own obscene material.
Moreover, Sirkin argued that the court should apply "strict scrutiny" to the issues of the case, meaning that the government should be required to identify a "compelling state interest" in maintaining the current federal obscenity laws and prove that there was not a less restrictive method of accomplishing the same objective.
Regarding the video clips from Extreme's website charged in the indictment, one of which is just 21 seconds long, Sirkin challenged the indictment on the basis of the currently accepted "Miller test" for obscenity, which requires, in part, that the material be considered "as a whole." As one commentator noted, a 21-second clip from a 90-minute movie can hardly be considered "the whole" of anything.
Also, since any finding of obscenity must be based, in part, on whether the material offends the "community standards," Sirkin asked the court to define the community of the World Wide Web and suggested that it might be worldwide. In dismissing the charges, Lancaster agreed with Sirkin on all of those positions.
The 3rd Circuit, in rejecting Lancaster's dismissal, did not rule on the validity of any of Sirkin's arguments. It merely rebuked Lancaster for essentially anticipating what the judge believed the Supreme Court would do to federal obscenity law in the aftermath of Lawrence v. Texas. Hence, all of Sirkin's arguments have been preserved for the trial of the case.
Background: Guhn, owner and operator of the sexually explicit website CashTitans.com, and two associates originally were charged by prosecutors in Escambia County, Fla., with racketeering, enterprise prostitution and the manufacture and sale of obscene material.
The charges were based on the fact that Guhn had paid men and women - some of whom were discovered through "private parties" the defendants attended - up to $1,000 to appear in sexually explicit content Guhn later posted on his site and charged customers to access the footage. All of that conduct would be legal in California, based on the 1988 California Supreme Court decision in People v. Freeman.
Escambia County later dropped its charges, but the current charges of racketeering and money laundering were later re-filed against Guhn in Santa Rosa County. Guhn is represented by attorney Lawrence Walters.
Issues: Guhn's case may be the strangest of the cases covered here. It has been generally established that "crimes" involving the Internet must be filed in federal court, since data or content on the Internet may easily cross state lines. However, Walters' motion to dismiss the charges on that basis was denied.
Although Guhn has not been charged with "wholesale promotion of obscenity," the idea that the content on his website is obscene underpins the racketeering and money laundering charges. The prosecution claims that because Guhn made money from displaying his content on his site, the content is "obscene" and the federal crime of transportation of obscene materials is a felony, any money Guhn made from the site constitutes proceeds from money laundering. And because Guhn paid performers to appear in sexually explicit content, prosecutors claim that constitutes "prostitution" under Florida law.
Regarding the underlying obscenity charges, Walters raised the question of which community's standards would be used to judge the alleged obscenity of the material. In a unique ruling, Circuit Court Judge Ron Swanson decided that the community would be the four counties of Florida's First Judicial District: Escambia, Santa Rosa, Okaloosa and Walton, all located in the state's conservative panhandle.
The trial is set to begin on June 30.
Background: Karen Fletcher, an agoraphobic 54-year-old woman whose past includes a sexually abusive childhood, a mentally abusive marriage and a period of homelessness, launched RedRoseStories.com as a therapeutic device to help her deal with her own issues. She posted text-only fantasy stories, some of which involved child sexual abuse and child torture. The site drew 29 members who paid a nominal fee to subscribe and posted similar stories of their own.
While it's unclear how the government found RedRoseStories.com, Fletcher was indicted on Sept. 26, 2006, by a federal grand jury in the Western District of Pennsylvania - again, under the direction of Mary Beth Buchanan - on six counts of distributing obscenity over the Internet. Fletcher is represented by Lawrence Walters.
Issues: It has been more than 35 years since the government prosecuted an obscenity case based solely on text. The last text-based case was one of the four cases decided as Miller v. California by the Supreme Court in 1973.
While the case is still in its early stages, Walters has filed motions to suppress evidence based on the invalidity of the search warrant, which failed to specify which stories the government considered obscene. In April, that motion was still pending, with the government having told U.S. District Judge Joy Flowers Conti that it would present additional evidence to support the warrant's validity. Conti ruled that statements Fletcher made to FBI agents, though done without counsel, would be admitted.
There probably will be motions regarding which community will be used in assessing the community standards for obscenity, although Fletcher is a resident of the Western District of Pennsylvania.
Editor's note: For the latest on this case, click here.
Background: In an indictment unsealed in Tampa, Fla., on May 30, 2007, the U.S. Department of Justice charged adult producer-director Max Hardcore and his company with 10 counts of "transporting obscene matter via mail and computer."
At issue are five online video clips and four DVDs mailed to an undercover FBI agent in Tampa. Included in the indictment is a forfeiture count for all merchandise, profits and property associated with the allegedly obscene matter, including Hardcore's home in Altadena, Calif., and his websites MaxHardcore.com, PissedOnPornStars.com and CatalinaXXX.com.
Hardcore is represented by attorney Jeffrey Douglas, and his company is represented by Sirkin and Kinsley.
Issues: Although Hardcore will go to trial first - jury selection was scheduled to begin on May 27 - the issues involved are similar to those in the Extreme Associates case. They both involve whether the federal concept of obscenity can survive after Lawrence v. Texas, what "taken as a whole" means when only online clips from longer movies are charged, and what community's standards will be the basis for determining obscenity.
Editor's note: For the latest in this case, click here.
Sami R. Harb and Michael Harb
Background: The Harb brothers run the Cleveland, Ohio-based adult mail-order business Movies By Mail. After an apparently long FBI investigation, the Harbs were charged with sending three movies - two from Max Hardcore and one from Extreme - to an undercover FBI agent in Salt Lake City. The brothers were indicted in the District of Utah on June 28, 2007.
They are represented by attorneys Jerry Mooney and Paul Cambria.
Issues: While this seems to be a simple case of alleged interstate transportation of obscene materials, the defense will raise the issue of "forum shopping": Why indict these men in Utah, one of the most conservative parts of the country, when the evidence seems to show that FBI agents in Washington, D.C., decided that the movies in question were obscene?
No motions have been filed.
Background: Ira Isaacs is a producer and Internet reseller of, among other things, videos involving defecation and bestiality. He was charged in the Middle District of California with importation or transportation of obscene material, importation or transportation of obscene material for sale or distribution, and two counts of violating the federal recordkeeping and labeling law, 18 U.S.C. §2257.
He is represented by attorney Roger Jon Diamond.
Issues: For several reasons, Isaacs' case is the most interesting one presented here, and a more thorough analysis is available at AVN.com. Isaacs' defense will be that he is a "shock artist" and his movies therefore are protected under either the "artistic" or "scientific" prongs of the Miller test. Isaacs plans to offer expert testimony, including his own, to prove it.
Possibly more interesting, however, are two procedural issues.
During pretrial motions, the government agreed to dismiss the two 2257 counts, even though two of Isaacs' movies clearly lacked the required 2257 statement identifying the records custodian, the location of the records and the date(s) of production. Why? Speculation is rampant.
Shortly after a pretrial hearing on Feb. 28, U.S. District Judge George King was replaced as the trial judge by Judge Alex Kozinski. It's not very unusual for a judge on a case to be replaced, but Kozinski spends most of his time as the chief judge of the 9th Circuit Court of Appeals. How and why he became Isaacs' trial judge has been the subject of even more speculation.
A "Daubert hearing" to assess the expertise of Isaacs' expert witnesses (including himself) and the prosecution's expert, Dr. Mary Anne Layden, was to be held May 6. Trial is scheduled to begin June 11.
Background: Veteran producer John Stagliano and his two companies, Evil Angel Productions and John Stagliano Inc., were indicted on April 7 on seven counts of transportation of obscene matters for sale or distribution, using a common carrier or interactive computer service to transport obscene matters, and engaging in the business of selling or transferring obscene matter, plus one count of criminal forfeiture.
Stagliano is represented by attorney Allan Gelbard, and at least one of his companies is represented by Sirkin and Kinsley.
Issues: The government has reached back to the Communications Act of 1934 to charge Stagliano with using telecommunications equipment to facilitate the transmission of obscenity. The tactic has never been used in connection with online video clips - one of the charges relates to an online trailer for Fetish Fanatic 5 - and it will be interesting to see how the government justifies using that statute of telecommunications law to prove obscenity.
The case is in its earliest stages, and little information is available.