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Obscenity Laws, the Reactionary Right and the Adult Community

Obscenity Laws, the Reactionary Right and the Adult Community

Home Entertainment Events and the Video Software Dealers Association (VSDA) last night hosted a dinner and program focusing on the analysis of the effect of the favorable ruling by the Federal District Court for the Western District of Pennsylvania in the Extreme Associates case and the extreme reaction of this ruling by reactionary, right wing politicians.

Bo Andersen, the President of the VSDA hosted the evening. Moderator Dana Harris, film critic for Daily Variety, led a mock debate between Louis Sirkin, Esq, who successfully defended Extreme Associates recently against John Mitchell, Esq., a public policy lawyer from Washington, D.C., who is a VSDA counsel who specializes in Anti-Trust, First Amendment and copyright cases. Mitchell, good naturedly, took the role of the prosecution in this case, while Harris moderated, after Andersen’s keynote speech.

Andersen spoke openly and frankly about the struggles ahead, thanking his friend, Jane Floentinus, from VSDA who gave him his two proud pieces of pornography in his office, “When Will Jesus Bring the Pork Chops” and “Napalm and Silly Putty.” Anderson related how little time has passed when an artist such as George Carlin was considered obscene. He promised that the VSDA would reach out further than its hundred-plus bills it has sponsored in various states, which aim to defend the rights of free Americans to enjoy entertainment that is challenged by a test of morality where legislators and legislatures use state laws of zoning, taxes and any other form of restriction. He proudly stated that the VSDA has won most of the cases fought, some of them on appeal.

Anderson warned that laws are being tested in Missouri whereby businesses devoted to even 10 percent of adult entertainment might potentially be restricted to 10-hour days of doing business, only able to employ those over the age of 21 and being required to charge a $5 tax for entry with 20 percent of the gross profits from all proceeds going directly to the government. This could mean the death of adult businesses and cabarets.

Anderson went on to say that he met with the sponsor of the Missouri bill and at the end of a fairly sociable dinner, the sponsor leaned in, and not in too a threatening a manner, he was quick to point out, “The First Amendment doesn’t cut much water here in Missouri.”

Dana Harris took the stage along with Lou Sirkin and John Mitchell to address the right to privacy, due process and the application of the First Amendment in this current climate.

Harris’s first question concerned how the judge could have come to the conclusion that the right to privacy superseded discussion of First Amendment issues in this case. John Mitchell offered the opinion that, by avoiding the First Amendment argument and not considering the surrounding neighborhoods that house adult businesses, this oversight of the right of local merchants to also have a right to privacy, creates complete disregard for the law.

Sirkin’s response was that it was important to analyze what was really said in the Stanley v. Georgia cases where an individual was deemed to have the right to privacy in their own home, as it didn’t affect those in his community, or in commerce or have anything to do with a moral code. Sirkin went on to illustrate the successful arguments of Roe v. Wade (which found that substantive due process went outside the realm of privacy in one’s home) and, most importantly, Lawrence v. Texas (where the Supreme Court decision to recognize personal liberty as a “Do Not Enter” sign for the moral code of anyone, government included).

He went on to state that citizens have a right to choose what to watch, and when to watch it and the government’s only compelling interest is to enforce a moral code which, in turn, would stand to keep this material from the hands of non-consenting adults.

Sirkin’s argument referenced the popularity and acceptance of Viagra as a safe and approved form of sexual arousal. He added that Judge Lancaster commented to the journalists in his courtroom that it’s not enough to allow people to have the right to read – and that journalists thereby have the right to write to that audience – but that there should be a law protecting the production and sale of the ink to print the words to read.

According to Sirkin, Lancaster, in his discussions in court, also referenced that the government is now aware that the individual moral thoughts can’t be determined to a higher level. He even quoted conservative Supreme Court Justice Anton Scalia’s comments in Lawrence v Texas where the jurist brought to light arguments about gambling and prostitution as well.

Mitchell’s response was that Scalia was correct, stating that this sort of material needs to be presented to a legislature and not a judge, referencing a 1970’s case where a porn theater (Paris Theater 1 v. US) where a decision was made relative to others rights to privacy.

Mitchell discussed the right to protect minors from obscenity, citing that prostitution, gambling and maybe even suicide would be allowed in this current mindset.

Sirkin’s responses to the rights of privacy question were simple. If a student now has the right to read the Communist manifesto, then they must be allowed to study it at home. He went on to say that it’s the parents responsibility to protect their children, not the government’s job, adding that the issue is about privacy, not morality and that even Scalia in the Lawrence case stated that “morality is not a compelling governmental interest.”

Harris then queried how the Internet played into all this. Sirkin was quick to point out that the Web is just another form of a retail store and people make their own personal choice to stop in or purchase material. Mitchell argued that the real estate is supported by tax dollars and that citizens must take the responsibility for what people are exposed to in this country.

Sirkin concluded by stating that legislating morality is the greatest failure in law and that an obscenity charge should always remain a presumption of innocence rather than a presumption of guilt. Prior conduct cloaks presumption and jurors must always consider the three-pronged test of obscenity, which always boils down to the basic awareness that government doesn’t want to create prior restraint and that juries might decide one way or the other about the same material, based on the community standards.

“One has to base it all on what people buy,” Sirkin said. And after the debate Mitchell stated, “they don’t want to win, so much as put you out of business.”

Considering the VSDA successfully fought and won a battle in Oklahoma against the government prosecution of the Academy Award-winning movie The Tin Drum on charges of child pornography, it’s apparent, the dozens of adult producers, manufacturers and distributors present at the event were not going to give up the fight.

As the evening ended, First Amendment attorney Jeffrey Douglas praised Sirkin for not only convincing Judge Lancaster that his opinion was right, and commented that the Judge himself felt enlightened and empowered by the knowledge that he had protected an individual’s right to privacy.

Sirkin remained optimistic to the very end of the evening, responding that in spite of the government appeal in the Extreme case, “It’s nice to win the first round.”

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