profile

Legal Angels: 1

Skillful, accomplished 1st Amendment lawyers can be found in many different parts of the U.S., including Cincinnati (home to H. Louis Sirkin), Chicago (where J.D. Obenberger and Reed Lee are based) and Buffalo, N.Y. (home of Paul J. Cambria Jr.). But if any American city deserves to be exalted as the capital of 1st Amendment law, it is Los Angeles. The adult entertainment industry has made many advances over the years, and L.A.-based 1st Amendment attorneys have been playing a crucial role in its progression for at least half a century.

"Los Angeles is where you find the greatest concentration of 1st Amendment attorneys in the country, without a doubt," said Gregory Piccionelli, one of the city's prominent 1st Amendment lawyers. "Tons of significant 1st Amendment work has come out of Los Angeles, and there has been tons of decisions that have occurred around the country that involved Los Angeles-based attorneys. When 1st Amendment issues arise, the Southern California 1st Amendment attorneys will frequently be the ones who take on those issues." Piccionelli, of the firm Piccionelli & Sarno, noted that 1st Amendment attorneys do not represent adult companies exclusively. Allan B. Gelbard, another busy 1st Amendment attorney based in L.A., said, "Keep in mind that 1st Amendment lawyers aren't just porn lawyers; we do other stuff as well."

Not Just Adult
Piccionelli, in fact, has had his share of clients in both mainstream and adult entertainment. But because erotic expression has frequently been attacked in the U.S., those who create or distribute adult material often need the help of attorneys who are experts on 1st Amendment matters — and in Los Angeles, there is a long list of attorneys who fit that description, including Jeffrey J. Douglas, head of the Free Speech Coalition's board of directors, Piccionelli's partner Robert Sarno, and Alan Isaacman, who represents Larry Flynt.

Los Angeles also is home to the adult-industry-friendly firm Rohde & Victoroff, which includes Stephen F. Rohde and partner Gregory T. Victoroff, and to a long-running firm that has been downright vital to the adult industry: Weston, Garrou, DeWitt & Walters, which includes John H. Weston, Clyde F. DeWitt and G. Randall Garrou in the firm's main L.A. office and the Lawrence Walters in its Orlando, Fla. office.

Weston, Garrou, DeWitt & Walters is the firm that once boasted the presence of Stanley Fleishman, a seminal 1st Amendment attorney whose work helped make the adult entertainment industry what it is today. Arguably, all of the attorneys who currently represent clients in the adult industry — from Douglas, Piccionelli and Sarno in Los Angeles to Cambria in Buffalo — are disciples of Fleishman, who passed away in 1999.

"The first major Los Angeles 1st Amendment attorney, in a very real sense, was also the first major U.S. 1st Amendment attorney, and that was my former partner Stanley Fleishman, now deceased," Weston said. "Stanley was probably the first attorney in the country to devote a significant amount of his time to the issues of sexually oriented speech and expression in the media and government attempts to regulate and censor it."

To fully appreciate the role that L.A.-based 1st Amendment lawyers have played — and continue to play — in shaping the adult industry, one needs to think back to 1957. That year, Fleishman took on the case of Alberts vs. California, which Weston describes as the companion case to Roth vs. U.S.

Los Angeles resident David Alberts, who ran a mail-order business, was convicted of obscenity under a California statute for publishing pictures of nude and scantily clad women. New York-City-based publisher and writer Samuel Roth, meanwhile, was convicted of obscenity under federal law for selling a publication called American Aphrodite, which contained both literary erotica and nude photography. When the Roth and Alberts cases went to the U.S. Supreme Court in 1957, the high court's decision in Roth vs. U.S. established a new definition for obscenity and ruled that material was obscene if its "dominant theme, taken as a whole, appeals to the prurient interest" according to the "average person, applying contemporary community standards."

To 1st Amendment purists, the Supreme Court's decisions in the Roth and Alberts cases were far from ideal; Roth's and Alberts' convictions were upheld by the Supreme Court, which ruled that obscenity was not protected by the 1st Amendment. Roth, in fact, went to prison for several years. But even so, the creation of the Roth test was a major victory for adult entertainment because it made obscenity much more difficult to prove.

Before the Roth test, U.S. obscenity law still had remnants of the old Regina vs. Hicklin test for obscenity, which was handed down from England in 1868 and greatly influenced American obscenity law for generations. Under that test, an artistic work could be considered obscene if even a small part of it was mildly erotic. Under the Roth test, however, the entire work had to be analyzed in order for it to be condemned as obscene. Attorneys had been chipping away at the Regina vs. Hicklin test for decades, but Fleishman did more than chip away at it; Fleishman helped topple it once and for all.

"The Roth test in 1957 was a wonderfully important watershed and was, in many ways, attributable almost exclusively to Stanley Fleishman," said Weston, who joined Fleishman's firm in 1970. "Stanley did not argue the Roth case, but legal scholars all agree that Stanley's briefing and Stanley's argument in Alberts, which was argued contemporaneously with Roth and decided at the same time as Roth, was really what carried the day."

In part two, we'll continue our look at the impact L.A.-based attorneys have had on 1st Amendment law.

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More Articles

profile

Hayley Davies: From New Zealand Math Nerd to Fast-Rising Adult Star

Growing up, New Zealander Hayley Davies was a proud nerd who participated in mathematics competitions against students from much higher grades. Her good looks turned out to be a kind of secret weapon, causing peers to underestimate her intellectual acumen.

Alejandro Freixes ·
profile

WIA Profile: Inka Winter

Award-winning erotic filmmaker and ForPlay Films founder Inka Winter knows what she wants her films to be, and what she doesn’t want them to be. She seeks to depict sexuality that is mindful, based in human connection and trauma-informed.

Women In Adult ·
profile

'Traffic Captain' Andy Wullmer Braves the High Seas as Spirited Exec

Wullmer networked and hobnobbed, gaining expertise in everything from ecommerce to SEO and traffic, making connections and over time rising through the ranks of several companies to become CEO of the mobile business arm of TrafficPartner.

Alejandro Freixes ·
opinion

To Cloud or Not to Cloud, That Is the Question

Let’s be honest. It just sounds way cooler to say your business is “in the cloud,” right? Buzzwords make everything sound chic and relevant. In fact, someone uninformed might even assume that any hosting that is not in the cloud is inferior. So what’s the truth?

Brad Mitchell ·
opinion

Upcoming Visa Price Changes to Registration, Transaction Fees

Visa is updating its fee structure. Effective April 1, both the card brand’s initial nonrefundable application fee and annual renewal fee will increase from $500 to $950. Visa is also introducing a fee of 10 cents for each settled transaction, and 10 basis points — 0.1% — on the payment volume of certain merchant accounts.

Jonathan Corona ·
opinion

Unpacking the New Digital Services Act

Do you hear the word “regulation” and get nervous? When it comes to the EU’s Digital Services Act (DSA), you shouldn’t worry. If you’re complying with the most up-to-date card brand regulations, you can breathe a sigh of relief.

Cathy Beardsley ·
opinion

The Perils of Relying on ChatGPT for Legal Advice

It surprised me how many people admitted that they had used ChatGPT or similar services either to draft legal documents or to provide legal advice. “Surprised” is probably an understatement of my reaction to learning about this, as “horrified” more accurately describes my emotional response.

Corey D. Silverstein ·
opinion

Free Agent Auteur: Casey Calvert Expands Her Directing Horizon

Now, having brought that highly-awarded polyamory trilogy to a close, Calvert is concluding the exclusive Lust Cinema directing chapter of her career and charting a new course out into open creative waters as a free agent.

Alejandro Freixes ·
profile

WIA Profile: Holly Randall

If you’re one of the many regular listeners to Holly Randall’s celebrated podcast, you are already familiar with her charming intro spiel: “Hi, I’m Holly Randall and welcome to my podcast, ‘Holly Randall Unfiltered.’ This is the show about sex, the adult industry and the people in it.

Women In Adult ·
trends

What's Hot Now: Leading Content Players on Trending Genres, Monetization Strategies

The juggernaut creator economy hurtles along, fueled by ever-ascendant demand for personality-based authenticity and intimacy — yet any reports of the demise of the traditional paysite are greatly exaggerated.

Alejandro Freixes ·
Show More