This column is a monthly update of legal & first amendment rights issues in the courts, written by famous First Amendment Rights Attorneys Benjamin & Aaronson courtesy of Xcitement Magazine©2010
This month the adult entertainment industry received a great victory and was able to take a great sigh of relief. The case of the United States v. John Stagliano John Stagliano, Inc. and Evil Angel Productions, Inc. went to trial in the District of Columbia before U.S. District CourtJudge Richard J. Leon for charges that they had sent obscene material by common carrier across state lines to the District of Columbia.
At the inception of this case, the case had all of the trappings of being a hallmark, if not a landmark decision, in obscenity prosecutions. The case was brought by the Justice Department’s Obscenity Prosecution Task Force Representing the defendants were represented by some of our personal friends, H. Louis Sirkin, Paul Camberia, Alan Gelbart and Robert Corn-Revere.
The reason why this case could have been, if not a landmark decision, but a hallmark decision, was depending on the verdict this case would have made a statement to either the pro-censorship people within the government or to First Amendment advocates outside of the government. The defendants were represented by fine attorneys defending the material and claiming that they were not obscene in Washington, D.C. Supposedly a crack government legal team was on the other side. The case was being watched by the adult entertainment industry along with prosecutors nationwide. A victory for the prosecutors would have sent a chilling effect throughout the adult entertainment industry. A finding that the material was not obscene would have emboldened those of us who champion the First Amendment and believe in the right of adults to view contents that they desire.
As any trial attorney will tell you, the future of a case can never be predicted and cases take on lives on their own. During this trial, there were missteps by the United States Government such as a corrupted recording of a DVD that caused the Judge to throw out countsthat dealt with the “trailors” of the movies. There also was a misspoken statement by one of thefederal agents while testifying, where the agent testified that the Judge had told him to review theevidence before he testified. This made the Federal District Court Judge irrate and required anaffidavit to be signed by the U.S. Attorneys for the jury’s review stating in fact their own witness was mistaken.
However, the biggest shock came when the defense argued their Rule 29 motions. These are motions in Federal Court after the government rests its case, to have the charges thrown out because the government has not put on a prima facia case to the standard where a reasonable juror could come back and find guilt beyond a reasonable doubt. These motions are seldom granted but to everyone’s surprise Judge Leon in fact granted the Defendant’s motions and threw out all of the charges. His ruling was not based upon the fact that the material was not obscene but rather that the defendants could not be hooked up and linked to the interstate transportation of the matter. Regardless of why he ruled, this case was a great victory for the First Amendment and First Amendment advocates and a crushing defeat for the U.S. government in its war on people’s freedoms. After the trial, John Stagliano apparently voiced some misgivings of the proceedings. He was certainly thrilled that he was no longer facing time in jail, but as a fighter for the First Amendment it seemed that he very much wanted a victory wherein the jury would have found the matters to not be obscene. If that occurred, it would have sent shockwaves throughout the United States government that adults want to be left alone, that adults want the rights to view and not have the government interfere in what they watch.
Again, a victory is a victory. Those of use who champion First Amendment freedoms could not be happier and could not be more proud of our compatriots who went through the fight. Having been involved in cases with Paul Camberia and H. Louis Sirkin we know what quality work was done on the defendants’ behalf and we know what passion was given in that representation. We send our truest congratulations and appreciation to the defendants and to the defense team.
In order for material or even performances to be obscene they must fail the Miller test. The essence of the test is that the: average person applying contemporary community standards finds the matter taken as a whole appeals to the prurient interest; it depicts sexual activity in a patently offensive manner; and lacks serious artistic, literary, scientific or political value.
To many of us, this definition is no definition at all. It gives no guidance and we believe it is unconstitutionally vague. Because of this belief, we were waiting for the Supreme Court to weigh in on their belief of the constitutionality of the”honest services fraud”cases. We had hoped that if the Supreme Court struck down that crime on vagueness grounds, we would have ammunition to do the same for the obscenity test.
Unfortunately in the case of Skilling v. United States the Supreme Court did hold “honestservices fraud” to be vague, but its reasoning does not help our First Amendment fights against the Miller test. The Supreme Court seemed to indicate that a definition as vague as the Miller test would have saved the “honest services fraud” statute.