Navigating the Legal Challenges
Here are some of the cases brought, pending or resolved in 2007 that are most useful in taking the temperature of the waters in which the adult producers and distributors swim.
A smart operator will pay close attention to the pending cases as they emerge and play out for several important reasons. First, the nature of the content charged (and at least in the case of Max Hardcore, the identity of the defendant) gives a fair indication of what attracts the interest of law enforcement and prosecutors. Whether the result in the end is acquittal or otherwise, that punitive interest can be very expensive and very scary. Second, the results in these cases may be of predictive help in assessing whether content is likely to be legally obscene. Finally, understanding the sentences and forfeitures imposed provides a reality check to connect the reader with the ultimate downside of high-risk decision-making in adult content selection.
THE RAY GUHN CASE
Florida vs. McCowan: In mid-2006 a criminal complaint was filed in North Florida in Escambia County against three operators of an adult website, CumonHerFace.com, which featured glazing facial bukkake, group sex and gangbangs with numerous male performers typically accompanied by one or two female performers. The charges included obscenity, racketeering, money laundering and prostitution. Clinton McGowan, aka Ray Guhn, an inventor holding patents and successful venture capitalist in a wide variety of mainstream international investments, faces 90 years in prison.
In July 2007, the indictments in Escambia County were dismissed so that the same case might be immediately resurrected and re-indicted in the presumably even more conservative adjoining Santa Rosa County. The new judge denied a motion to transfer the case back to Pensacola, finding that the defense had not adequately established bad faith in the procedure. A full array of motions attacking the existence and applicability of the Florida obscenity statute have been filed and more are on the way.
In the latest development, the Santa Rosa County Judge ruled in October that the jury will be instructed to apply the community standards of four Florida counties, including Escambia county, to determining whether the elements of obscenity are proved by the state under the statute and the Miller test.
The website is no longer operated by the persons charged, but by foreign operators. The case, and a variety of motions based on the statutes and the constitution, is pending and obviously the defendant is fighting like hell along with his attorney, Larry Walters.
At least four brick-and-mortar adult operators were indicted for obscenity in September by a Kansas special grand jury in Johnson County, convened as the result of a petition drive organized by moralizer Philip Cosby and his Kansas City chapter of the National Coalition for the Protection of Children and Families (NCPCF). Amazingly, the indictments include Halloween costumes and devices designed to preserve penile rigidity.
Spirit Halloween was indicted for the costumes on Sept. 26, but the charges were dismissed on the state's motion Oct. 10, apparently because the prosecutor felt that the state could not meet its burden of proving the costumes obscene.
Priscilla's was indicted for various sex aids, including the vibrating ring, and possession with intent to sell the sex video "Teen Cum Targets." Hollywood at Home was indicted for promotion of four video titles: "Real Female Masturbation 13" (New Machine), "Anal Machines" (Vamp), "Hellcats 12" (Evil Angel) and "Don't Kiss Me, I'm Straight" (HIS). A writer familiar with the content observed that "Hellcats 12" featured solo female urination in panties without accompanying sex, oral, vaginal, anal and group anal sex. Gringo Loco was indicted for the sale of one. Those two cases are quite fresh and obviously remain pending now.
MAX IN TAMPA
U.S. vs. Little: In Tampa, Fla., on May 31, the federal grand jury for the central district of Florida handed down an indictment of Max Hardcore.
The indictment includes counts addressed to both delivery of DVDs and Internet distribution, including one clip, me20europromo.wmv (only 1:47 in duration) and other brief segments extracted from the site. The government has not alleged that any whole website operated by Hardcore is an obscene work, but charged the clips instead, continuing the pattern established in the Extreme Associates case. The DVD titles named in the indictment are "Max Hardcore Extreme 20 — Euro Edition," "Pure Max 19 — Euro Edition," "Max Hardcore Golden Guzzlers 7 — Euro Edition," "Fists of Fury 4 — Euro Edition" and "Planet Max 16 — Euro Edition." The content is reported to include fisting and hard anal.
The case is brought in Tampa because the government wishes to establish that Hardcore's kind of content will be taken as obscene even outside especially conservative regions, believing that its offensiveness will be evident even in communities that are generally tolerant to controversial expression. Hardcore's content also is featured in the Movies by Mail case, highlighted below. This has been a continual crusade against him and it will continue into the foreseeable future. The case is pending.
MOVIES BY MAIL
U.S. vs. Harb: The operators of Movies by Mail were federally charged in Salt Lake City, Utah, one of the most conservative places in the nation, with one count of conducting an obscenity business. The matter charged in the pending case derives from both Max Hardcore ("Pure Max 18" and "Extreme 12") and Extreme Associates ("Cocktails 5"). According to the complaint, in the works there are explicit depictions of gagging, coughing, the expulsion of fluid from the mouth, crying, forceful face-fucking by grabbing a female's hair, anal intromission of tubes, vaginal intromission of straws, use of straw to suck vaginal fluid contents, auto-felching, continuing sexually after a performer's request to "please stop", and pig-tailed performers dressed in a preadolescent fashion being picked up at a playground and used sexually. The case is pending and in the hands of Paul Cambria.
U.S. vs. Fletcher: Federal prosecution was brought in Pittsburgh in 2006 by ASA Buchanan, who also brought the Extreme Associates case. The content was exclusively text, particularly six stories concerning the seduction, torture and rape of children of very tender ages, including violence and murder on a website operated by the defendant. The stories included "jandj.txt" a text description of the torture and sexual molestation of 2-year-old Mina, and the sexual molestation and murder of 4-year-old Cindy.
On April 26 the defense filed a motion to dismiss and supporting brief generally challenging the federal obscenity statutes on constitutional grounds, and as applied to text descriptions without graphic illustration. These motions were denied on Aug. 30. The defense currently is required to file additional motions by Nov. 7. This is a Larry Walters case. The case is pending.
U.S. vs. Croce: This case concerns prosecution brought federally in Orlando. The defendant, Danilo Simoes Croce, produced content in South America and fulfilled orders from the U.S. According to the indictment, his videos and websites included scat, piss, vomit, bukkake and fisting. Croce was the operator of VomitBrazil.com, among others. He pled guilty on June 8. He was sentenced Aug. 29 to three years supervised release, which shall be unsupervised if he leaves the U.S. and does not return. A $500 fine and $98,000 in forfeitures, $40,000 of which had been paid by the time of sentencing.
Defendant was ordered stay in the country — but shall not overstay his visa — to provide assistance to the government in the investigation or prosecution of another person who may have committed an offense as detailed in open court during the sentencing hearing.
Ira Isaacs was indicted in the U.S. District Court in Los Angles. The February indictment relates to video titles described as "Gang Bang Horse," "Pony Sex Game," "Mako's First Time Scat," "Hollywood Scat Amateurs No. 7," "Laurie's Toilet Show" and "Bae 20." The tapes apparently were promoted at the following sites, whose domains the government seeks to forfeit criminally: ScatMovies.com, ScatCinemax.com and StolenCarFilms.com.
In late October, Isaac's counsel obtained a stipulated order continuing trial proceedings, providing that counsel shall confer in February 2008 regarding a trial date. This case is pending.
JM AND FIVE STAR
U.S. vs. Five Star Video and JM Productions. This federal prosecution in Phoenix arose from the delivery of four DVD videos, first from producer to retailer and then from retailer to a postal inspector in Northern Virginia: "Gag Factor 15," "Gag Factor 18," "American Bukkake 13" and "Filthy Things 6." One report suggests that a parody/satire of throat-gagging torture in the Abu Ghraib prison was depicted.
The case went to trial in October. At trial, the judge dismissed the individual defendants because the government was unable to lay the foundation for the introduction of documents as business records necessary to establish their knowledge concerning the allegedly obscene material.
The obscenity case then went to the jury with respect to corporate defendants. Five Star Video and Five Star Video Outlet were convicted after five hours of deliberation with respect only to "Gag Factor 18," and acquitted with respect to "Filthy Things 6" and "American Bukakke 13." "Gag Factor 18" was described by someone familiar with its content as consisting of repeated scenes depicting female performers engaged in oral sex on male performers until the females gagged and in some cases vomited, the copious display of facial saliva and semen, and accompanying harsh language toward the female performers.
U.S. vs. Gartman and McDowell: This case concerns Dallas on March 14, 2006. In an earlier case, U.S. vs. Ragsdale, a former Dallas police officer and his wife were convicted by a jury on Oct. 22, 2003, of operating an Internet website through which they distributed obscene videos "depicting rape scenes." The investigation, according to the report, into other potential targets, continues. The 5th Circuit in a reported decision affirmed the conviction.
The Ragsdale investigation led law enforcement to Ragsdale's partner and his prosecution and conviction for distributing obscenity. An acquittal was obtained concerning a work featuring urination and defecation, but defendants were convicted in connection with a work that depicted the piercing of nipples by needles billed as sexual torture without accompanying sexually explicit acts.
McDowell was convicted only of aiding and abetting the criminal distribution of obscene materials through the U.S. Mails ("Torture Video 23") and sentenced to 30 months imprisonment. He was acquitted of conspiracy to violate the obscenity statutes, using an interactive computer system to distribute obscenity, and with one count of aiding and abetting. This conviction was reversed Aug. 24 by the 5th Circuit because there was no evidence that the defendant knew the U.S. Mails would be used by his partners and associates and no reasonable inference of that knowledge arose from the evidence.
Fairly technical issues of proof have emerged to decisively affect innocence or guilt this year not only for Mr. McDowell, but for a series of defendants in the JM case, mentioned above.
LE VIDEO STORE
Louisiana vs. Le Video Store: This pending case is defended by my office in St. Martinville, La. At the core of the material charged, there is double penetration, interracial sex, and female urination on a concrete floor and very gritty amateur swinger interracial orgy material with individuals who would not be considered attractive in mainstream pornography. The trial court denied the defense standing to argue the position of webmasters and Internet distributors. The Louisiana Court of Appeal reversed this holding, and the matter is now set again for hearing on those issues in December.
U.S. vs. Marcus: In New York City on March 5, a man whom the New York tabloids called the 'S&M Svengali' was convicted of sexually abusing a woman he photographed for his BDSM website, but acquitted of obscenity in regard to the site's contents. The jury found Glenn Marcus, 53, guilty of sex trafficking and forced labor after deliberating for seven days. He was acquitted of obscenity.
U.S. vs. Kilbride: This case in Arizona on June 25 arose out of a porn spam operation and included prosecutions under CAN-SPAM, Money Laundering, Section 2257 and four counts of distribution of adult obscenity. The federal jury in Phoenix convicted on all obscenity counts. It is not clear what the email images depicted, but one report suggested images of fisting.
U.S. vs. Zicari, aka Rob Black, and Janet Louise Romano, aka Lizzy Borden, and Extreme Associates, a corporation: All three defendants were indicted on 10 counts of violating federal obscenity laws. The investigation began "after a special report aired on PBS' 'Frontline,' on February 7, 2002, entitled 'American Porn,' in which Rob Black reportedly was filmed consensually beating a female and inviting the Attorney General to get him. Extreme Associates is a significant producer and distributor of hard pornography, including videotapes depicting the rape of women."
Reportedly, the material also included depictions of adult performers in the role of sexualized children.
Judge Lancaster previously dismissed the case on constitutional grounds but was reversed by the U.S. Court of Appeals. The U.S. Supreme Court denied review, and so the matter is back in front of Judge Lancaster.
On Feb. 1 the defense filed its second motion to dismiss, which dealt with constitutional issues related to the obscenity concept of a "work as a whole" and contemporary community standards. Though on July 31 Judge Lancaster denied the motion to dismiss, he agreed to treat it as a motion in limine that should provide direction as to what the government must prove at trial in order to survive a motion for an acquittal. The case is pending.
AFTER HOURS VIDEO
After Hours Video, which recently opened as the first adult business in Staunton, Va., owned by Rick E. Krial, was indicted on 16 felony and misdemeanor charges related to selling obscene movies by the grand jury on Nov. 1.
The titles include: "Sugar Britches," "City Girls — Exxxtreme Gang Bangs," "The Video Adventures of Peeping Tom," "Tag Teamed 3 — The Art of Double Penetration," "Teen Angel — The Search for Snatch," "Teens Cumming of Age No. 4," "Erotica," "Teanna Kia Is the Bitch," "5 People You Meet in Porn," "Big Loves — Thiclc for Diclc," "A Group Thing No. 1" and "Hog Farm."
This prosecution was commenced when the operator opened his store against protests and community agitation against its establishment. Florida is not the only state displaying evidence of prosecution gamesmanship. The indictment discloses that material was purchased on three different dates — so that the subsequent purchases might be charged as a second or subsequent offense — and thereby become punishable as felonies.
This case is in the hands of Paul Cambria. It remains pending.
The cases highlighted in this article speak for themselves and about where obscenity prosecution now stands — with eloquence.
By no means have all of the charged materials been deemed obscene by juries. But it has happened twice this year, in the JM case and U.S. vs. Kilbride, both in Phoenix, Ariz., a place seldom, if ever, listed among the most Biblethumping American jurisdictions most hostile to porn.
Fisting and extremely aggressive facial assaults with demeaning language were more than these juries could accept. For what it's worth, at least one member of the JM jury stated afterwards that the jury might have acquitted had they known of the availability of similar material in the Phoenix area. Maybe. But this judge did not permit the introduction of comparable material, holding that mere availability does not establish acceptance of the material. No one can or should assume that any member of any jury will be a customer of this industry, nor that he or she will be fully aware of the range of adult materials produced.
Therefore, when assessing content for potential risk, the question that always should be asked is how the material will play to people who don't watch porn. The Cambria List still offers much value in wise content selection.
It matters who you are. Especially if you are Max Hardcore, or if you have dared the Attorney General to come get you. As in everything else, size counts. Sizable defendants attract special attention. Obnoxious behavior invites prosecution, too.
The most extreme kinds of content — torture, rape, scat, and urine — seem to invite prosecution everywhere. Harsh and insulting language and degrading treatment of performers, whether on camera or off, seem also to invite prosecution.
If there is a hysteria or personal animus stimulating the prosecution, as in Kansas and Virginia, even run-of-the-mill content can and will be indicted and charged, as shown in 2007.
Nasty, ugly and vindictive prosecutorial games are sometimes played by prosecutors and enforcement agents on the state level in Florida and Virginia, and it's my guess that it depends on the legal culture of the jurisdiction to assess what's likely to transpire. Some places are just nastier than others.
In general, until the U.S. Supreme Court takes another look at obscenity (something that not all of us are necessarily hoping for), it is unlikely that the arguments asserting that the obscenity statutes are broadly unconstitutional when applied to willing adult customers, based on free speech and privacy principles, will prevail anywhere. As this writer has observed many times, the battle against repression will be won in jury trials, one case at a time, until the overpowering number of acquittals shall convince the prosecutors that the obscenity statutes no longer have teeth.
» This article originally appeared in the December, 2007 issue of XBIZ World Magazine.